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shall not be applied in the purchase of lands, or the erection of buildings, it being my expectation, that other persons will, at their expense, purchase lands and buildings for those purposes. In his second codicil, the testator directed, that the money bequeathed to the blue coat school and to the blind asylum, should continue in the firm at Oldham, in conformity to and during his articles of partnership, and for such longer time as his executors should consider the principal and interest secure, for the benefit of the charities, “ it being his will, that the interest of the said legacies be paid annually to the trustees of the said charities, for the maintenance and support thereof.” Sir J. Leach, V. C., held, that the trustees had a title to that annual payment from the death of the testator, and must apply it in the maintenance and

support of the charities ; although the expectations of the testator, with respect to the purchase of buildings by others, seemed in fact to have been wholly disappointed, as the testator, in another codicil, expressed an intention, not perfected, of appropriating a particular close for the building of the blue coat school. The charities were therefore established; and the consideration of the particular manner in which they were to be administered, was reserved until after the accounts were taken (g).

A bequest in the following words, was held not to amount to a direction for building or hiring a school: “I direct also, that my executors or the survivor, &c. do pay, out of some part of my money in the funds, the yearly sum of 2001., for and towards the support of a school at Ross, in Herefordshire, at the discretion of my said executors (h).

4. When bequests of money to improve lands in mortmain are valid, and when not.] It was held by Lord Northington, that building on a site already in mortmain, was laying out money in realty; and therefore, contrary to the spirit of the act, and opening a door to evade it, to those donors who were

(9) Henshaw v Atkinson, 3 Madd. (h) Attorney General v. Jordan, 306. See Ittorney General v. Hinx- 27 July, 1791 ; Highmore on Mortman, 2 Jac. & Walk. 276.

main, 225, 2nd ed.

indifferent in what species of charity they bequeathed their money, and that, if that were allowed, almshouses would be turned into palaces, and small spots of ground covered with immense buildings (i). But that doctrine, which, if pushed to its extent, would have prohibited all repair or improvement of existing buildings on lands in mortmain, has been overturned by subsequent authorities. For it is now clearly settled, that it is competent to a testator, though not to give directly any interest in land to a charitable use, to leave a sum of money for the purpose of meliorating, as it is called, any land, or for beautifying, sustaining or repairing buildings already vested in trustees for charitable uses; and many cases have been determined upon the distinction, whether it is clear, the testator meant the money to be applied in erecting, sustaining or repairing buildings already vested in trustees for charitable uses, or intended fresh land to be purchased for that purpose (j).

A bequest, by a rector and incumbent of a parish, of two sums of money, to be laid out for the benefit of his successor in the rectory, in building a new parsonage house on the glebe of the rectory, with other buildings; was held not to be within the meaning of the statute; which only intended to prevent new acquisitions in mortmain, and erecting a building was not to be considered as such, for if the testator had not made such a gift, money might have been recovered for dilapidations, which must have been laid out upon the building (k). So a legacy for repairing a free chapel, on part of the testator's estate, which, at the time of the will, was in mortmain, was held good (I).

And where a legacy was given “ towards the erecting and endowing of an hospital for the county of Dorset,” which it was admitted was void, if it were necessary to buy land whereon to build the hospital, yet being good in aid of an

(1) Attorney General v. Tyndall, 3 Br. C. C. 595 n. by Belt; Corbyn 2 Eden, 213. See also Blandford v. v. French, 4 Ves. 427, 428. Thackerell, 2 Ves. jun. 238.

(k) Glubb v. Attorney General, (1) Vaughan v. Farrer, 2 Ves. Ambl. 373. sen. 189; Attorney General y. Nash, (?) Harris v. Barnes, Ambl. 651.

existing hospital ; the court referred it to the Master to inquire, whether there was any hospital existing in Dorsetshire (m).

So where a testatrix gave by will money to her trustees to be laid out in the erecting and new building of a neat parsonage house, at the upper end of the garden belonging to the said parsonage house, to be from time to time enjoyed by the incumbents of the living; a decree was pronounced in favour of the charity as no land was to be purchased (n).

Bequests of money to build a church where the chapel then was (o), and to be laid out upon repairing parsonage houses generally, were held good upon the same principle (p).

So a legacy for building two additional rooms to a rectory house was held good, for such a purpose required no more land to be put in mortmain (q).

A testator who has duly conveyed property in his lifetime for charitable purposes, may by his will give money for the support and improvement of the original gift. Thus, E. Tawney, by an indenture of bargain and sale dated the 17th of January, 1797, duly executed and inrolled according to the statute 9 Geo. II. c. 36, conveyed unto and to the use of the mayor, bailiffs, and commonalty of the city of Oxford, two freehold messuages with the gardens and appurtenances in the suburbs of that city, in trust, to permit three poor men and three poor women to be nominated from time to time by the said E. Tawney during his life, and after his decease by such person or persons, trustee or trustees, and in such manner and form, and under such restrictions and conditions as the said E. Tawney had, or should, by any deed or writing, or by his last will and testament in writing, or any codicil thereto executed in the presence of two or more credible witnesses direct, limit, or appoint. E. Tawney by his will, dated the 20th of January, 1800, (among other

(m) Foy v. Foy, i Cox, 163; S. Oxford, 1 Br. C. C. 444 n. (9). C. cited 3 Br. C. C. 593.

(p) Attorney General v. Bishop of (n) Brodie v. Duke of Chandos, 1 Chester, 1 Br. C. C. 444. Br. C. C. 444 n.

(q) Attorney General v. Munby, 1 (0) Attorney General v. Bishop of Mer. 327.

things) gave to the said mayor, bailiffs, and commonalty, and their successors for ever, 45001. stock in the 3 per cents consol. bank annuities, upon trust to pay the interest and dividends thereof from time to time, as the same should become due for ever in manner after mentioned :—201. a-year each by half-yearly payments to three poor men and three poor women of the city of Oxford or suburbs thereof for ever, to be nominated as thereinafter expressed, for and during the term of their natural lives ; and from and after payment thereof, in trust to pay, lay out, and expend as occasion should require, the remainder of such yearly interest and dividends, at such times and in such manner, as the trustees thereinafter named should direct, in rebuilding, repairing, altering or adding to, and improving the messuages or tenements, ground, and appurtenances conveyed by the said testator unto the said mayor, &c. by bargain and sale inrolled, for the use and benefit of such poor men and women who were to reside and live upon the said premises. An information having been filed after the death of the testator on behalf of the corporation of Oxford, praying that they might be declared entitled to the legacy of 45001. stock upon the trusts of the will, and that the executors might be decreed to transfer the same.

Lord Eldon said, “In the present state of the doctrine of this court, as the testator had in his life effectually conveyed the land, so as to satisfy the statute for this charity, even if the will had been made for the purpose of maintaining and supporting these poor men and women, the will being intended only to operate as prescribing the mode in which they are to be maintained and supported; this bequest according to the current of modern authorities, so far as it is understood not to direct purchases of land to be made, is good; but as far as the words adding to relate to some part of the context, it is not good ; for it is not only adding to the messuages or tenements which may be considered to be upon the ground already in mortmain, but it is adding to and improving the messuages or tenements, ground and appurtenances.” As the testator had adverted to land already in mortmain, by referring to his own deed, it was declared that the legacy of 45001. stock was good, as far as the payment of 201. a-year each to three poor men and three poor women according to the will, also so far as the surplus was directed by the will, to be applied in rebuilding, repairing, altering, or improving the messuages or tenements, grounds and appurtenances, and so far as the additions directed by the will should be made upon the land conveyed by the testator for the better residence of such poor men and women; but that it was bad, so far as any additions were to be made to the ground by acquiring other land (r).

It is sometimes a question whether the land to which a testator has referred, was in mortmain or not, at his death; in such a case, if the court entertain any doubt upon the point, it will be referred to the Master to inquire, whether the house or land had been in any and what manner, and by whom appropriated to charitable purposes, at the death of the testator (s).

Where it appeared that a school-house had been built prior to the 9th George II. c. 36, on the waste of a manor given by the lord for that purpose, and paid for by subscription from the lord of the manor and other parishioners, and never subsequently used otherwise than as a public schoolhouse, it was held to be so dedicated to the charity, and in mortmain, that a bequest for the purpose of repairing and enlarging it, and of providing a salary for the schoolmaster, was a valid legacy (t).

Where stock was given for rebuilding certain almshouses, and the only question was, whether the lands upon which they were built were in mortmain before the passing of the act 9 George II. c. 36, that fact was proved from an old inscription carved in stone, and fixed in the centre of the front of them, and by an extract from a local history, published in 1735, in which the almshouses were mentioned (u).

Unless a testator distinctly points to some land already in mortmain, he will be understood to mean, by a direction to

(r) Attorney General v. Parsons, 342. 8 Ves. 186–192.

(t) S. C. Ibid. (s) Ingleby v. Dobson, 4 Russ. (u) Shaw v. Pickthall, 1 Dan. 92.

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