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report.” Lord Northington afterwards declared, that “the regulations indorsed on the codicil, were inconsistent with the constitution of the college, and consequently, that the trust whereupon the testator's real estate, and the surplus of his personal estate were devised and given to the college, being void, the devise of the real estate was a resulting trust for the testator's heir-at-law; and that, for the same reasons, the bequest of the surplus of the personal estate to the executors, was also void, so far as it related to any interest or benefit, thereby given to the colleges in succession (u).
Where a devise of lands is in general terms to such charitable uses as a third person shall appoint, it has been contended, that an appointment by the donee in favour of any of the charities, excepted out of the act, namely, the colleges of the two English Universities, and the three public schools, would be good. Thus where an estate was given to a party in fee, and the testatrix added that her wish and desire was, that the devisee should convey it to some charitable uses, leaving the choice entirely in his discretion, and concluded by stating her intent, that he should enjoy the estate for his own benefit during his life (v), the devisee having died without making any appointment, the point did not arise, but it was argued, that inasmuch as some charitable uses are excepted out of the statute, the court ought to presume, that the charitable uses contemplated by the testatrix, were those to which the devise might legally be applied. In answer to which, it was said by Bayley, J., “This is a general devise, and not in favour of any of the excepted charities. And another answer to that argument is, that although the devisee might perhaps have executed a conveyance to some of the charitable uses, within the proviso of the statute, and might have so disappointed the heir-at-law, still, that as he
(2) Attorney General v. Whor- case was, the substratum of the wood, 1 Ves. sen. 534, Reg. lib. charity failed, and all those partial 1755, A. fol. 607 — 609, Belt's dispositions that would have been Suppl. 252. See 7 Ves. 496, 1 Sch. good charity, if not connected with & Lef. 437. Lord Eldon said, 10 that, failed with it. Ves. 538, that the result of this (v) Ante, p. 143.
has not done so, the heir-at-law is not excluded (w).” And Holroyd, J., said, “the will does not give power to the devisee, to determine whether the estate shall be limited to a charitable use or not, but it is imperative upon him to give it to some charitable use; and a devise to any such use is void by the statute. If it was intended to confine the objects to the exception in the act, the will should have confined it to the excepted charities (x).”
After a clear gift to a college of three presentations to a living, their interest cannot be extended by doubtful words. Thus, where a will dated in 1704, contained the following words: I do direct and appoint, that the vicarage of Twyford and Ouselsbury parishes, when become vacant, shall from time to time, by the persons then entitled as to the presentation, be tendered to Emanuel College, Cambridge, so as an election be made of a person resident at the same time in the said college. By a codicil, the testator devised as follows: “I do devise to the master and fellows of Emanuel College, the successive presentation for three turns, or alterations from the present incumbent, to the church of Henstead in Suffolk; so as the said election be made to such person as at the same time, and before is and was resident in the said college ; and as the parties then concerned can agree, the said college to proceed in the future elections." The college having presented for three successive turns, the heir-at-law of the testator contended, that all interest of the college to present to Henstead, had then ceased, and the college insisted that the heir was bound to present their nominee. The Lord Chancellor said, the testator has given the three turns expressly to the college, and his lordship did not consider himself bound to discover what his further intention was, or whether he had any
intention. The testator meant the presentation to remain in his family, but that they should consent according to the nomination of the college, and that the person to be presented, should at the time be
(w) Doe d. Burdett v. Wright, 2 Barn. & Ald. 722.
(x) S. C. Ibid, 723, 724.
resident in the college, which would be good, though he became resident after the vacancy. If the college had exhausted their members, the family might have presented other persons. This is something like his meaning, it is clear there is no equitable gift of the future nomination (y).
3. Queen Anne's Bounty.] It has been already shown (2) that by statute 2 and 3 Anne, c. 11, s. 4, the governors of Queen Anne's Bounty are enabled to take lands or personal estate by deed or will; and that by the statute 43 Geo. III. c. 107, s. 1, the above provision is to remain in force, notwithstanding the 9th Geo. II. s. 36, which last act had previously been held to render void a gift of money to such governors (a).
By 45 Geo. III. c. 84, s. 3, in order to facilitate the intentions of all such persons as may be disposed to contribute to the augmentation of such livings and curacies as are within the laws in force respecting Queen Anne's Bounty, it is enacted that it shall be lawful for any person or persons having in his, her, or their own right any money, goods, chattels, or other personal effects at his, her, or their will and pleasure, to give or grant to or vest in the governors of Queen Anne's Bounty and their successors, to be by them disposed of according to law, all or any part of such money, goods, chattels, or other personal effects, without any deed or deeds, either inrolled or not inrolled in like manner as he, she, or they could or might have done, either by deed inrolled or not inrolled, or otherwise, before the passing of that act.
The third section provides that nothing therein contained shall, in any manner, alter or affect the law then in force respecting the gift or conveyance of any lands, tenements, or hereditaments, by any deed or deeds, or the disposition thereof, or of any goods, chattels, or other personal estate, by will or testament.
4. Hospitals.] It appears, in a preceding part of this work,
(y) Emanuel College, Cambridge (z) Ante, pp. 51, 52. v. Bishop of Norwich, 4 Br. C. C. (a) Ante, p. 171.
that the Commissioners of Greenwich Hospital and of the Royal Naval Asylum, and the members of the Seaman's Hospital Society (b) are enabled, by several acts of Parliament, to take lands by devise. The governors of St. George's Hospital may take by will any money charged on real estates (c).
The members of the Magdalen Hospital are incorporated by 9 Geo. III. c. 31, by the name of the “ President, Vice President, Treasurer, and Governors of the Magdalen Hospital, for the reception of penitent prostitutes,” with capacity in law to hold and enjoy, in trust, and for the benefit of the said hospital, all such sum and sums of money as have been paid, or should thereafter be paid, given, devised, or bequeathed, by any charitable or well disposed persons, for the charitable purposes mentioned in that act; and without license in mortmain, to purchase, take, and receive any lands or hereditaments, or any estate or interest arising or derived out of any lands or hereditaments for the purposes aforesaid.
The Bath Hospital having been incorporated by an act of Parliament (d), and enabled to take"all monies whatsoever," it was held to apply to such only as were given according to the general rules of law; and that a clause enabling the hospital to take lands without license in mortmain, was applicable only to devises according to law; and therefore the devise of the residue of “personal estate, arising by sale of real estate, for the benefit of such hospital,” was held void (e); for the charter of incorporation having been granted by Parliament to save expense to the promoters of the charity, and to confer powers which the king could not grant, was to be construed in the same way as any other charter granted by the crown only.
But a legacy to the Bath Infirmary, given out of the produce of real estates, has been since held to be valid, because the statute 19 George III. c. 23, enables the governors of that institution to acquire lands or any interest in them, and
(6) Ante, pp. 46, 47.
(e) Mogg v. Hodges, 1 Cox, 9; S. C. 2 Ves. sen. 52.
any money or personal property to be laid out in lands pursuant to any will or otherwise, not exceeding 10001. per annum (a).
5. Devises by freemen, according to the custom of London.] It has been already stated (6), that notwithstanding the statute 7 Edward I. st. 2, a citizen and freeman of London may by custom devise lands in mortmain ; and it seems to be considered (c), that such custom is not affected by the statute 9 George II. c. 36; but as there is in that act no reservation of the custom, which is contained in 23 Henry VIII. c. 10, it is at least doubtful, whether it is not superseded so far as relates to devises to charitable uses. In Middleton v. Cater (d), it was contended, that a devise by will, dated in the year 1777, by a freeman of London, to charitable uses, was valid, notwithstanding the statute 9 George II. c. 36; but it appears only to have been decided in that case, that the custom is confined to lands in London; for the testator in that case not having devised any lands there, it was unnecessary to decide how far the custom was affected by that statute.
6. Gifts of real and personal estate in Scotland.] The sixth section of the 9th George II. c. 36, provides, that nothing contained in that act shall extend to the disposition, grant or settlement of any estate real or personal, lying or being within that part of Great Britain called Scot
(a) Makeham v. Hooper, 4 Br. clared to belong to the crown by the C. C. 153.
act of annexation, 1587, c. 29; so (6) Ante, p. 9.
that now the only lands which con(c) See 2 Rop. on Legacies, 144, tinue mortified to the church in Scot3rd ed.; Bac. Abr. Charitable Uses land, are the manors and glebes of (B), Customs of London (A). parochial ministers, which by that (d) 4 Br. C. C. 409.
statute are appropriated to the use (e) The purposes for which lands of the reformed clergy. But mortifihad been given to the church in the cations may still be granted in favour times of popery, were, after the Re- of hospitals, either for the subsisformation, accounted superstitious; tence of the aged and infirm, or for and therefore those lands were de- the maintenance and education of