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therefore, that the entail could not be barred by the mere deed of assignment; great reliance was placed upon the fact that 100,0001., its redemption price, was to be laid out in land: but Lord Thurlow held it to be the grant of an annuity perpetual in its nature; that it did not savour of lands; but being merely personal, was capable of being conveyed either with or without a fine, and therefore the assignment was effectual (m).
The title to the Caribbee Islands, in the West Indies, having vested in Lord Kinnoul, under an original grant to Lord Carlisle from James I., it was agreed that this title should be surrendered to the crown in consideration of an annual payment out of the profits arising to the crown in respect of the seignory of the island; accordingly a sum of 10001. a-year was granted to Lord Kinnoul and his heirs, out of the duty of 41 per cent. which is paid to the crown in specie from the produce of the island of Barbadoes ; and the grant was secured by a collateral charge on the rest of the king's revenue. It was urged, that these duties, being paid in respect of the seignory of the island, constituted a species of realty, and therefore the annuity charged thereon was properly a rent, and to be treated as real property: but Lord Hardwicke determined, that it was a mere personal annuity, neither having any relation to lands or tenements, nor partaking of the nature of a rent; and even admitting the duties to be in the nature of a reserved rent on the product of the islands, on which the annuity was charged; still the fund was only a custom or duty on the exports of the island, and not a reservation out of the island, and therefore, that the annuity to Lord Kinnoul was a personal inheritance (n).
The same property has since been the subject of dispute, in which case it appeared, that by virtue of several assignments and ultimately by an indenture, dated in May, 1773, the annuity of 10001. was granted and assigned to W. Stafford, his heirs, executors, administrators and assigns, subject
(m) Earl of Holderness v. Lord (n.) Lord Stafford v. Buckley, 2 Carmarthen, 1 Br. C. C. 377. Ves. sen. 171.
to redemption on payment of 12,3811. 14s. 10d. with interest. W. Stafford by his will, dated 22nd October, 1777, gave all his real and personal estate to his wife, who by her will, dated March, 1810, attested by two witnesses, after directing her debts to be paid and giving several legacies, bequeathed all the rest of her personal estate to her executors, upon trust, to convert it into money, and to pay certain legacies and annuities, and to appropriate certain sums for the benefit of charities, and to apply all the residue of her personal estate and effects equally between and for the benefit of three charities therein named. The question for the opinion of the court was, whether the legal estate and interest in the annuity passed by the will of Mrs. Stafford to the executors named in her will, and the Court of King's Bench certified that it did (0).
2. Exception in favour of English Universities and Colleges.] In conformity with the laws restraining alienations in mortmain, bodies politic and corporate are generally disabled from taking lands by devise. By the statute 34 & 35 Henry VIII. c. 5, s. 5, a general power is given to all persons having a sole estate, or being tenant in coparcenary, or in common, in fee simple, of disposing of lands by will to any person or persons except bodies politic or corporate (p). Although corporations were expressly excepted in the above statute, they were not rendered totally incapable of taking the benefit of a devise in their favour, and therefore a direction by a testator to his executors to convey lands by the advise of counsel, to any corporation, spiritual or temporal, may be carried into effect, if a license in mortmain be obtained (9) And although a devise to corporations in trust for other persons is void at law, the lands will be charged with the trust, and the heir-at-law of the testator will be decreed to be a trustee for the uses of the will (r).
(6) Aubin v. Daly, 4 Barn. & to any body politic or corporate Ald. 59.
shall be valid, unless such body (p) By the bill for amending the politic or corporate is empowered by law of wills now in progress through any act of Parliament to acquire real Parliament, it is provided, “ that no estate by devise.” devise or other disposition by will, (9) Porter's case, 1 Rep. 25 a.
The statutes 1 & 2 Philip and Mary, c. 8, s. 50 (s), took off this restraint in favour of spiritual corporations for 20 years; and colleges were so much favoured by the law at that time, that a devise to Trinity college, though a lay corporation, was held to be within the protection of that law (t). But when the 20 years had expired, spiritual corporations as well as others, were incapable of taking by devise; and from that time to the 43rd Elizabeth, c. 4, corporations could not take by devise at all, (except under a custom of devising in "mortmain,) either with license or without it (u).
The judges laid hold of the words limited and appointed in that act, and held, that if there was a gift in fact by a person who had a legal capacity to give in any way, the intention, improperly executed, was a sufficient foundation for supplying any imperfection in the mode of donation, and that the Legislature intended, that if estates were given in fact, defects in forin were to be overlooked, and the charity to take place (v). This favourable construction took place with respect to gifts to charitable uses made before the statute 43 Elizabeth, c. 4, by making a devise void at law valid in equity.
Lord Eldon said, “The whole series of decisions upon the statute 43 Elizabeth, c. 4, proceeded on the principle that where there is an ability in the grantor to grant, and the gift is for charitable purposes, the grant though void at the time when it was made, is, by the effect of that statute, rendered operative. That act operates only where there is a devise for charitable purposes by a party who has ability to devise; a bequest by a person unable to give, must be considered in the same light as a deed executed by an infant” (w).
(r) Sonley v. Clockmakers' Company, i Br. C. C. 81.
(8) Ante, p. 42.
(t) Dyer, 255 b; 1 Roll. Rep. 166, 418; Hob. 122, 123; 11 Rep. 71.
(u) See Wilmot's Notes, 11.
(o) i Eden, 14; Rex v. Newman, i Lev. 184.
(w) Attorney General v. The Skinners' Company, 2 Russ. 417.
The statute of the 43rd Elizabeth, c. 4, had a retrospective as well as a prospective effect; and therefore a will, containing a disposition to a charity, made antecedent to that statute, although void as a will, was held, by the effect of that act, to be good as an appointment (y).
But Lord Eldon said, that he could not discover on what principle the decision of the court proceeded, in the case last cited (2).
So a devise to charitable uses made before the statute of wills (a), was held to come within the relief of the statute of 43 Elizabeth, c. 4(b).
It was decided, that although a devise of lands to a corporation was void, yet where it was for a charitable use it operated as a good appointment under the statute 43 Elizabeth, c. 4(c). Sir John Leach, V. C., said, “ It is very singular, but certainly true, that a devise to a corporation before the 43rd Elizabeth, c. 4, has been established as a good appointment under that statute; it is a very extraordinary doctrine; the Legislature could not have meant that-. it must have meant by the use of the word 'appointment' in that statute, a legal appointment”(d). And the same learned judge has since held, that although in 1565, which was before the statute 43 Elizabeth, c. 4, no legal devise could be made to a corporation for a charitable use, yet lands so devised were in equity bound by a trust for the charity, which a court of equity would then execute (e).
A devise by a tenant in tenant, who cannot make a disposition of lands by will, was held good in favour of a charity. Where a tenant in tail devised freehold and copyhold lands to his wife for life, with remainder to the master and fellows of St. John's College, in Cambridge, for maintenance of the scholars there, and the testator's heir, having entered upon the wife to avoid the devise, the master and fellows of the college preferred a bill in chancery to preserve their right, and to confirm the devise to them. Lord Keeper Littleton held, that although the heir might evict the wife, that the devise to the college was valid by virtue of the statute 43 Elizabeth, c. 4, as there was a gift to a charitable use which should not be avoided for want of circumstance of law to make it good; and that, although the college was incorporated by another name than that mentioned in the devise, it was good by that act; and that if the heir avoided the estate tail against the wife-at-law, yet the remainder to the college should stand good, and be a remainder without a particular estate, which is contrary to the rules of law (f); but such defects, in cases of charitable uses, are remedied by the statute 43 Elizabeth, c. 4, by a favourable interpretation for the maintenance of charity, as in other cases upon statutes for piety and charity (g).
(y) Smith v. Stowel, i Ch. Cas. 2 Russ. 418, 419. 195.
(c) Jesus College case, Duke, 78 (2) 2 Russ. 418.
(363). (a) 32 Henry VIII. c. 1; 34 & (d) Attorney General v. The Skin35 Henry VIII. c. 5.
ners' Company, 5 Madd. 200. (6) Collison's case, Hob. Rep. (e) Attorney General v. The Master 136, S. C. Moore, 888 ; Attorney of Brentwood School, i Mylne & General v. The Skinners' Company, K. 390.
The statute 43 Elizabeth, c. 4, has been considered in another case, as a partial repeal of the exception in the statute of wills (h); and, therefore, that a devise to
of the colleges, in either of the universities, after that act, was good, not merely in equity, as an appointment to charitable uses, but also in law, so as to vest the legal title in them (i).
Since the statute 9 Geo. II. c. 36, devises of lands to corporations for charitable purposes are generally void ; but that act contains a special exception in favour of the two universities and certain other colleges; for, by the 4th section of that act it is provided, that it should not make void the dispositions of any lands, tenements, or hereditaments, or of any personal estate to be laid out in the purchase of any lands, tenements, or hereditaments, which should be made in
An estate in remainder requires in Cambridge, Duke 77 (379). a particular preceding estate to sup- (h) 32 Henry VIII. c. 1; 34 & port it. See Fearne on Cont. Remrs. 35 Henry VIII. c 5. 281, 7th ed. ; 2 Bl. Comm. 164. (1) Bennet College, Cambridge, v.
g) Plate and St. John's College, Bishop of London, 2 Bl. R. 1182.