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person for the use of the school: and that the bequest was not intended to form an auxiliary fund in aid of other donations, on the supposition that some other person would give a house, which would have removed the difficulty, and brought the case within the principle of some cases already considered (v). Part of the fund being appropriated to the master and mistress, and some undefined part of it to be applied to the repair of the house, the legal and illegal purposes could not be separated, and the whole gift failed. The trustees had no discretion in the application of the fund to the illegal purpose, but would have been bound, if the house had been out of repair, to have appropriated part of the fund in support of the house, but how much was not defined (w).

If the legal bequest and the illegal purpose are not so connected as to be inseparable, and the proportions are defined or capable of being exactly calculated, the bequest may be supported (x).

Where a testator directed a freehold estate to be sold, and the produce applied, with so much of the personal estate as should be necessary, to secure an annuity of 301. a-year for the life of A., and after his death the principal to go to a charity, although the charitable bequest was void, as to so much of the fund as was produced by the sale of the real estate, yet it was held valid, as to the rest of the sum required from the personal estate to secure the annuity (y).

Where a testatrix devised a house to trustees and their heirs, upon trust, to deposit in the house certain books for the use of the Welch charity school, for the increase and improvement of Christian knowledge, and to preserve the books in the house for such use, and to permit her servants who should look after the books to live in the house clear of rent and taxes. It was held, that there was not enough to bring the case within the authority of the cases where the principal devise having failed, the bequest of the personal

(c) See ante, pp. 178—182. jun. 238; S. C. 4 Br. C. C. 394 ;

(w) Attorney General v. Hinxman, ante, pp. 179, 180. 2 Jac. & Walk. 270.

(y) Waite v. Webb, 6 Madd. 71. (1) Blandford v. Thackerell, 2Ves.

property, as connected with it, must fail also: for it appeared that the testatrix meant, that the house should be subservient to the distribution of her books; but it was not necessarily connected with her purpose, for the will contemplated the time when the charity might continue, and the house be no longer applicable, and there was enough in the will to give the personal estate to charitable purposes, connected with the plan of promoting Christian knowledge (z).

SECTION VI.

Of the right of Heirs-at-Law, Devisees and next of Kin of

Testators, to the benefit of void devises and bequests to Charitable Uses.

1. When the heir-at-law is entitled to void charges, p. 206. 2. When devisees are entitled to void charges, p. 209. 3. Questions between real and personal representatives in

cases of conversion of real estate, p. 214. 4. Release from next of kin not presumed, p. 225.

GENERALLY speaking, the heir-at-law of a testator will be entitled to such real estates as are devised to charitable uses, which are void by the statute 9 George II. c. 36, and the next of kin or residuary legatees will take such personal estate as is ineffectually given for those purposes; questions, however, have in some cases arisen between the different representatives of a testator, which will now be considered.

The cases in which the crown or the Court of Chancery has the power of directing the application of the fund to other purposes than those expressed by the testator, will form the subject of separate consideration, for in such cases the gift itself is not void. It is a clear principle of law, that an heir cannot be dis

(z) Attorney General v. Stepney, 10 Ves. 21, 29.

inherited without plain words of gift or necessary implication; and in doubtful cases the title of the heir will prevail(a). A resulting trust arises in favour of the heir-at-law, with respect to all real estate of his deceased ancestor, or the produce of such estate of which no lawful disposition is made (b).

Where land, or such an interest in land, as would descend to the heir-at-law, is undisposed of by will, the heir-at-law will have the benefit of all which is not disposed of; and if the testator has given the legal, but not the beneficial interest, then the heir will take, by way of resulting trust, all the beneficial interest of which no disposition is made. When a devise fails the interest goes to the heir-at-law, unless there appear in the will either by express words, or by necessary implication, a contrary intention (c).

(a) Boutell v. Mohun, Prec. Ch. void or do not exhaust the whole 381; Sympson v. Hornsby, Id. 439; beneficial interest, the surplus will Piggot v. Penrice, Id. 471; Kellett result to the heir-at-law.–Attorney v. Kellett, 1 Ball & B. 541; Berry v. General v. Whorwood, i Ves. sen. Usher, 11 Ves. 92. Lord Manners 534; Hill v. Bishop of London, 1

By necessary implication, Atk. 618; Hill v. Cock, 1 Ves. I mean that implication which arises & B. 173; Lloyd v. Spillett, 2 out of the words the testator has Atk. 280; Davidson v. Foley, 2 made use of, and which clearly sa- Br. C. C. 203; Packington v. Wych, tisfy the court as to his meaning, i Br. P. C. 372 ; Randall v. Bookey, leaving no room for doubt or con- 2 Vern. 425, S. C. Pr. Ch. 162; jecture."-1 Ball & B. 542. See City of London v. Garway, 2 Vern. Swinb. on Wills, by Powell, 353. 571; Hobart v. Suffolk, Id. 644 ; Lord Eldon said, “In construing a Bristol v. Hungerford, Id. 645 ; will, conjecture must not be taken Starkey v. Brooks, 1 P. Wms. 390; for implication, but necessary impli- Cruse v. Barley, 3 P. Wms. 20; cation means, not natural necessity, Stonehouse v. Evelyn, Id. 252; Digby but so strong a probability of inten- v. Legard, 3 Cox's P. Wms. 22; tion, that an intention contrary to that Ackroyd v. Smithson, 1 Br. C. C. which is imputed to the testator, can- 503; Leslie v. Devonshire, 2 Br. not be supposed.”—1 Ves. & B. 466. C. C. 188; Robinson v. Taylor, Id. In: Middleton v. Cater (c), where a testator gave all his estates, real and personal, to trustees, to lay out on mortgages for the benefit of his wife and other purposes, for her life, and after her death to make sale thereof, and directed the sum of 10001. to be paid to the wardens of the Fishmongers’ Company, to be laid out in the purchase of lands, the rents whereof were to be applied in augmenting the weekly allowance to the

said,

(6) Stansfield v. Habergham, 10 589, S. C. i Ves. jun. 44; HutVes. 280.

cheson v. Hammond, 3 Br. C. C. (c) The following cases show, 128 ; Spink v. Lewis, 3 Br. C. C. that where there is a devise for par- 355 ; Sherrard v. Lord Harborough, ticular purposes, which are either Ambl. 165; Maugham v. Mason, i Ves. & B. 410; Kellett v. Kellett, (c) 4 Br. C. C. 409. See Chapman 1 Ball & B. 533; Berry v. Usher, v. Brown, 6 Ves. 404; ante, p. 201. 11 Ves. 87 ; Wright v. Wright, 16 (d) Price v. Hathaway, 6 Madd. Ves. 188; Wilson v. Major, 11 Ves. 304 ; ante, p. 132, and n.(0) 205.

poor of an hospital, it was decided that there was a resulting trust for the heir-at-law, out of so much of the provision for the charity as consisted of real estate, and for the next of kin as to so much as was personal.

There will be a resulting trust for the heir when a grantor has executed a conveyance according to the statute 9 Geo. II. c. 36, but dies within twelve months afterwards (d).

It has been shewn, in a former part of this work (e), that an heir-at-law may avail himself of a secret trust in favour of charities, connected with a devise of lands, in order to set aside the will.

1. When the heir-at-law is entitled to void charges.] A charge effectually made on real estate, devised to a stranger, but not well disposed of on account of being given to a charity, will be considered, as between the heir and the charity, as part of the real estate undisposed of; and the heir will be entitled to the benefit of it as a resulting trust, subject to the payment of the testator's debts. Thus where a testator devised 1001. and all his books to A. and B., whom he appointed his executors, and a copyhold estate to C., he causing to be paid to the testator's executors the sum of 10001.; and after payment of debts and legacies, the testator gave the residue and remainder of all his estate, freehold, copyhold, and leasehold to the governors of the Foundling Hospital and their successors for ever. On a bill brought by the execu

(e) Ante, pp. 144-154.

tors for the 10001. the devisee of the copyhold insisted that it should not be raised at all, as it was the same as if the condition had been to pay to the charity, which was an unlawful act, which could not take effect, and therefore void, and the estate absolute; and the heir-at-law claimed the 10001. as a resulting trust. The next of kin insisted, that as the gift to the charity was void by the statute of mortmain, and as the particular devisee could not take without performing the condition that the 10001. should go as part of the testator's estate undisposed of, according to the statute of distributions, the court held, that the condition being to pay to the executors was lawful, it not being to do an unlawful act as if it had been upon condition to pay directly to the charity, and that the heir-at-law might enter for the breach of the condition. The next of kin were not entitled, because it would be on a principle contrary to their right, for if it was turned into personalty, it must go to the governors, no part of the personalty being undisposed of. The heir-at-law therefore was entitled by way of resulting trust, unless the sum was wanted by the executors for payment of debts, for which purpose it would vest in them; but the hospital was prevented by the mortmain act from deriving any benefit from it (d).

Where real estate, belonging to a married woman, was limited to such uses as she and her husband, or the survivor, should appoint by deed or will, attested by three witnesses, and in default thereof to the heirs of the husband, the wife having survived, and made a disposition of the surplus produce of the estate in favour of charities, which was void by the statute of mortmain, it was declared that the heir-at-law of the husband was entitled to the residue, as far as it respected real estate, after payment of debts and the other legacies (e).

Where a testatrix left her real estate to trustees to be sold, the profits to be applied to the uses of the will, and directed that her debts and legacies should be paid out of her personal

(d) Arnold v. Chapman, i Ves. sen. 108. See 17 Ves. 466, 467.

(e) Attorney General v. Ward, 3 Ves. 327.

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