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the pure personal estate, and the personal estate connected with realty pro ratâ; and it was declared, that so much of the two charitable legacies as should be proportioned to the amount and value of so much of the personal estate as consisted of mortgages, leaseholds and other interests in, or charges or incumbrances affecting real estate, were void by statute 9 George II. c. 36; and that so much of the said charitable legacies as should be proportioned to the amount and value of the other part of the testatrix's personal estate, were good ; and it was referred to the Master to ascertain the amount of the residue, and to distinguish such part thereof as had arisen from interests affecting real estates, from such parts as consisted of pure personal estate.
It being lawful for a testator to give legacies out of his pure personal estate, or the residue of such estate, to charitable uses; it is proper, where the personal property is composed of any interests affecting land, for a testator to direct, “ that the legacies for charitable purposes shall be paid exclusively out of such part of his personal estate as he can by law charge with the payment thereof;" by which means many difficulties, with respect to the apportionment of the mixed personal fund, may be avoided (b).
By the civil law a legacy to pious or charitable uses, had a preference; but by our law, in case of a deficiency of assets, legacies to charities must abate in proportion with other legacies (c).
A testator, by will, directed his leaseholds, (which were held for lives,) and personal estate to be sold, and the produce to be applied in payment of his debts and the legacies
(6) See Dixon v. Dawson, 2 Sim. they were considered as part of, & Stu. 327; ante, p. 229, n.
and as doles at, the funeral. Attor(c) Tate v. Austin, 1 P. Wms. ney General v. Robins, 2 P. Wms. 264; Masters v. Masters, Id. 421; 23. See Bishop of Peterborough v. Attorney General v. Hudson, Id. 674. Mortlock, 1 Br. C. C. 566; Fielding It was held, that there should be no v. Bound, i Vern. 230; Duke, 185, abatement in respect of 3l. given to 186 (191). the poor of three parishes, because
given by his will, and to be given by any codicil; and by his codicil he gave to the executors of his will 20001. “ out of his personal estate," upon trusts for public charities. On a question whether there should not be an abatement from that sum, which had in part been paid out of a mixed fund, to the extent of the leasehold for lives : Sir John Leach, M. R., held, as a distinction was made between the leasehold estate and the personal estate; and the testator in the codicil, spoke of the personal estate, that the charitable legacies were not charged on the leaseholds, but wholly payable out of the personal estate (d).
The general rule is, that interest on legacies given to charities, will be payable at the rate of 41. per cent. from the end of one year after the death of the testator (e).
Where the trustee of a charity estate had paid the balances of the rents received by him, into a mercantile house, where it was used in carrying on trade, in which he was a partner, he was charged with interest at 5 per cent. upon his balances, but the court refused to direct annual rests, as there was no express direction for accumulation, nor fraud in the trustee's accounts (f ).
(d) Wilson v. Thomas, Rolls General v. Munby, 1 Mer. 346. Court, 30 July, 1833, Law Journ. (f) Attorney General v. Solly, 2 vol. iii. N. S. 144.
Sim. 518. See Raphael v. Boehm, (e) Attorney General v. Hayes, 1 11 Ves. 92; Stacpoole v. Stacpoole, Atk. 356, n. by Sand.; Attorney 4 Dow, 209.
Of exemptions from the statute 9 Geo. II. c. 36. 1. Annuities, p. 241. 2. Exceptions in favour of English Universities and Col
leges, p. 244. 3. Queen Anne's Bounty, p. 255. 4. Hospitals, p. 255. . 5. Devises by Freemen, according to the custom of Lon
don, p. 257. 6. Gifts of real and personal estate in Scotland, p. 257. 7.
in Ireland, p. 262. 8.
in the West Indies,
Tue consideration of some of the exemptions from the statute 9 Geo. II. c. 36, has been anticipated in a former part of this work, in cases where the power given to invest money destined for charitable purposes is merely discretionary and not imperative (a), and where the money is not to be laid out in acquiring fresh land for charitable purposes, but in the improvement of real estates already devoted to those uses (6). It is also sufficiently apparent, from preceding parts of this work, that the stat. 9 Geo. II. c. 36, does not restrain bequests to charitable uses of such personal estate as does not arise from any interests affecting real estates (c). A bequest of stock in the public funds to charities is valid (d).
A bequest out of real estate to erect a monument in a church to the testator's memory, is not within that act, such an object not being a charitable use, but an expenditure by the party on himself for the gratification of his own vanity (e). (a) Ante, pp. 182—188.
(d) Pieschel v. Paris, 2 Sim. & (b) Ante, pp. 188—192.
Stu. 384. (c) Ante, pp. 117–121.
(e) Mellick v. President and Guar
Fixtures which a testator has a right to remove from a leasehold house being mere personal chattels, may pass under a bequest of the residue of personal property for charitable purposes (f).
By 42nd Geo. III. c. 116, s. 50, any person or persons, by will or otherwise, or any bodies politic or corporate, or companies, may give any sum or sums of money for the purpose of applying the same in the redemption of the land tax charged on any manors, messuages, lands, tenements, or hereditaments settled to any charitable uses; which sum or sums may and shall be so applied accordingly, any statute of mortmain or other statute or law to the contrary notwithstanding
It appears by the statute 43 Geo. III. c. 108, already mentioned (g), that any person may by will, executed three months before his death, give five acres of land, or personal property to the amount of 5001. for the building or repair of any church or parsonage house.
By 5 Geo. IV. c. 39, s. 3, the trustees of the British Museum are enabled to take by devise, for the benefit of that institution, lands or money charged thereon (h). Before that act, a gift of the produce of real estate for the benefit of that institution, was held void (i).
1. Annuities.] An annuity neither charged on land nor to be paid out of nor secured by any charge or interest in land, may be given to charitable uses (j). It appears by a case already stated (k), that a direction to executors to settle an annuity for a charitable purpose generally, and not requiring the fund to be laid out in land, is valid.
Where a testator directed, that as his debts should come
dians of the Asylum, Jac. R. 180 ; Museum v. White, 2 Sim. & Stu. ante, pp. 87, 88.
594; S. C. 3 Moore & P. 689. Johnston v. Swann, 3 Madd. () Waite v. Webb, 6 Madd. 71. 467.
See ante, p. 9. (9) Ante, p. 53.
(k) Sorresby v. Hollins, 9 Mod. (h) Ante, p. 57.
by Leach, 221; ante, pp. 183, 184. () The Trustees of the British
in and his effects be disposed of, his executors should purchase certain annuities, one-half to be paid to the elders of a Baptist congregation in trust, for the poor of that congregation, and the other half to the elders of a congregation of Independents, to be distributed amongst the poor in like manner; and the testator, by a codicil, gave another annuity to a person for life, and at her death to go upon the like trusts as the other annuities. The decree directed the Master to set apart a proper fund of the testator's personal estate for securing the payment of the annuities, which were to be applied during the continuance of the lives for which they were given, and after to the charitable uses given by the testator's will (1).
Questions have sometimes arisen whether the right granted was an annuity or a rent-charge. Thus, where by an act of Parliament 2nd George I. reciting, that King William and Queen Mary, in consideration of the services of the Duke of Schomberg, determined to bestow on him 100,0001. out of the Exchequer, to be laid out in lands of inheritance, to be settled as therein mentioned; and that by letters patent they had granted to the Duke of Schomberg the yearly sum of 40001. payable quarterly, to him or the heirs male of his body, out of the revenue of the Post-office, being interest for the said sum of 100,0001., until paid. His majesty was empowered to grant to the Duke of Schomberg, and the heirs male of his body, with remainder to his right heirs, until the said sum of 100,0001. should be paid, an annuity of 40001., payable out of the revenue of the General Post-office; such grant was accordingly made by letters patent, containing a proviso, that as soon as the 100,0001. or any part thereof should be paid off, the whole or a proportional part of the interest should abate.
This annuity having come into the possession of the Earl of Holderness, he assigned it by deed to a trustee, and afterwards charged it with the payment of his debts. It was objected by his heir-at-law, that this was real property, and
(1) Attorney General v. Graves, Ambl. 157, note by Blunt.