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any other manner or form than by that act was directed, to or in trust for either of the two universities in England, or any of the colleges or houses of learning within either of the said universities, or to or in trust for the colleges of Eton, Winchester, or Westminster, or any or either of them, for the better support and maintenance of the scholars only, upon the foundations of the said colleges of Eton, Winchester, and Westminster. The fifth section of the same act provides, that no such college or house of learning, holding benefices equal in number to one moiety of the fellows, or where there are no fellows to one moiety of the students upon the foundation, shall be capable of acquiring more, the benefices annexed to the headships of the colleges not being computed: but by statute 45 Geo. III. c. 101, after reciting that the above restriction had been found by experience to operate to the prejudice of such colleges or houses of learning, by rendering the succession too slow, and that the removal of such restriction would be for the benefit of such colleges and of the universities, and tend to the promotion of learning, and to the providing a better supply of fit and competent parochial ministers, the fifth section of the above act is repealed, so far as regards colleges in the universities.
Before the restriction on the number of livings to be held by colleges was removed by the provision in the last act, it had been decided, in the case of a devise made in 1714 to trustees for the use of University College to buy advowsons, which college had acquired as many advowsons as were allowed by the 5th section 9th Geo. II. c. 36 ; that the trust should be performed by exchange of advowsons or otherwise cy pres, the heir-at-law having been disinherited by a will, which was valid at the time when made (j).
A testator devised all his real estate in Great Britain, except his house at Newmarket, to trustees, to pay annually all the yearly rents of the premises, in equal proportions, to twelve students (four of whom were to be educated in the study of divinity at Christ's College, four in physic at Caius
(1) Attorney General v. Green, 2 Br. C.C. 492.
College, and four in the study of the common law at Lincoln's Inn) provided that, in case the act of mortmain should prevent this disposition, then to the thirteen fellows of Christ's, and the fellows of Gonville and Caius, and the scholars of both the said colleges living at his death, each fellow to have a double proportion to each scholar. He then devised the house at Newmarket to the master and fellows of Christ's, in trust, that they and their successors should apply the yearly rents for some under-graduate student. It was contended that the devise to the fellows and scholars was void, as made to them in their natural capacity, and that the exception in the statute 9 Geo. II. c. 36, extended only to devises to the general use of the universities and colleges, but not to the particular members of either of them. But Lord Northington was of opinion, first, that the devise was for the benefit of the whole body corporate; secondly, had it not been so, he should still have thought that the Legislature intended, by the exception in the statute, to save a devise for the benefit of particular members, as well as of the whole body; and he further added, the Legislature meant to except such devises as were really and bonâ fide for the benefit of colleges, not those in which the legal interest only passes to the college in trust for other charitable uses, for then the statutes might be defeated every day; and this devise is for the benefit of the whole society, even of the master himself, who must pass through a fellowship and partake of the testator's bounty, in his progress towards the headship. Besides, any encouragement for youth to enter into a particular college, is a general benefit and profit to the whole society. The Legislature has thrown no restraint on these gifts, when made to the body corporate of either universities, or to colleges, already established there. This devise to the fellows and scholars contains no circumstances that intimate any intent to give them the estate in their personal capacities. It is clearly to them, as members of the body corporate, for a perpetual augmentation of the revenue of themselves and their successors (k).
(k) Attorney General v. Tancred, 1. Rep. 90. Eden, 10; S. C. Ambl. 351; 1 Bl.
The decision in the case last cited, that a gift to a college, not beneficially, but in trust for another object, is not within the exception in the fourth section of the statute, has been confirmed by a recent case; where a party assigned by deed which was duly inrolled, mortgages on real estate to the master, fellows, and scholars of Trinity College, Cambridge, in trust to receive the interest, and pay the same to the rector for the time being of Gilling East, for his own use and benefit, and to receive the principal sums when the same became due and payable; and again to invest the same, or else to suffer the same to remain so invested as aforesaid, “in order that the interest of the same might for ever thereafter be paid to, and received by the rector for the time being of Gilling East aforesaid, for his own use and benefit.” The gift having failed by the death of the grantor within twelve months, and the testator having by his will given the advowson of the rectory in question to Trinity College, for their own benefit, and referred to the above assignment; it was contended, that the deed assigning property in augmentation of the advowson, was in fact a deed for the benefit of the college, and therefore within the exception in the act. But Sir William Grant, M. R., held it impossible to connect together the will and the deed, so as to make the one operate upon the other by way of relation. They must be taken as they stood, singly, and the deed being a gift to the college, in trust for another object, was not within the exception in the act, and failed by the grantor's death within twelve months (1). We have already seen, that an assignment of a church lease, duly inrolled, executed more than twelve months before the death of the grantor to the master and fellows of Trinity College, as trustees for the incumbent of a rectory for the time being, is valid (m). And a legacy of 30001. to the master, fellows, and scholars of Trinity College, in order that the interest of the same might for ever thereafter be paid to and received by the rector for the time being of a
(1) Attorney General v. Munby, 1 Mer. 327.
(m) S. C. i Mer. 327; ante, pp. 128, 129.
living, (the advowson of which the testator devised to the same college) for his own use and benefit, was held valid (n).
It seems, that colleges taking real property under a devise, should obtain a license in mortmain to hold the property given to them, if they have before acquired property to the extent of their existing license (0). Where a perpetual advowson of a rectory was devised to the master, fellows, and scholars of Trinity College, under a restriction that the same should not be held by any college preacher, but that in all cases the fellow presented to it should vacate his fellowship, and take his degree of doctor of divinity the commencement following, or as soon after as might be, no question was raised as to the validity of the devise, (but as the heir was not a party to the suit, no decree was made respecting it,) as it appeared that the college by their charter, and the statutes of their foundation, had a license in mortmain to a certain extent, and had obtained a special license to hold the advowson (p).
The opinion of Lord Northington, that the exception applied only to Colleges established in the Universities at the time the act passed (9), was doubted by Lord Rosslyn (r).
It was said, that if the master or president of a college, by his will devised any land to his college, and died, that such devise was void; for at the time when the devise should take effect, the college was without a head, and so incapable of taking (s).
A devise and bequest to a college, not for academical collegiate purposes, but subject to regulations inconsistent
(n) S. C. i Mer. 327.
by John Pigot, clerk, the above (o) Attorney General v. Bowyer, mentioned testator, and the per3 Ves. 727. See ante, p. 41. petual advowson of Gilling East in
(p) Attorney General v. Munby, the county of York, devised to 1 Mer. 327.
them by his will. It appears, that on the 9th Feb. (q) i Eden, 16. 1813, an especial license
(r) See Attorney General v. Bowgranted to the master, fellows, yer, 3 Ves. 728. and scholars of Trinity College,
President of Corpus Cambridge, and their successors, Christi College Case, 4 Leon. 223. to take and hold in mortmain cer- S. C. Dalison, 31 ; ante, p. 28. tain lands, &c., conveyed to them
with the constitution of the college, are void. Thus where a testator by his will devised the remainder of his real and personal estate to University College, Oxford, and by a codicil, directed that the college should never sell, change, or otherwise alienate the donation of the manor of Denton, or any part of the lands and tenements thereto belonging, from the purposes intended, which were, that if there should be a senior fellow of the college who must be a divine, of the age of forty, in all respects of good repute, he should be the possessor of all his estate and furniture of the testator's house at Denton, to keep it in repair, not to fell timber without consent of the college; to live in his house hospitably, and sometimes give entertainment to the poor, to distribute cordials and drugs to them when needful ; to give to them some books and pamphlets of good morals and piety, and to give an annual entertainment to the fellows; and if he proved dissolute, then the election to be void, and another proceeded to.
Lord Hardwicke, in intimating an opinion that the trust could not be supported as a charitable use (t), said, “it was necessary to know the effect of the devise itself, how far the testator's direction for fixing a senior fellow and providing for him in that manner, was inconsistent with the constitution of the college, as to residence, &c., for if so, it was contrary to the intent of the trust, which was, that he should be a continuing fellow of the college, not barely when he was elected. Then a point will arise if this is not a good charitable use within the statute 43 Eliz. c. 4; it will stand as a devise to the college generally; it will be to a body capable of taking, which will depend on the power they have to take in mortmain; and it is necessary to be inquired into, how far they can do so, that the whole may be before the court, when the trust comes to be determined. The Master therefore must inquire into that, and whether the regulations are inconsistent with the college statutes; and reserve the consideration of the validity and operation of the trust, till after the
(1) See ante, pp. 86, 87.