estate, and appointed the trustees executors, and left them the residue of her personal estate and of the money to be raised by the sale of her real, to be given by them in what charities they should think proper, particularly recommending to them the hospital at Bath. It was held, that the heir-at-law was entitled to all the money arising from the sale of the real estate, as it was still considered as such (ƒ). In Gravenor v. Hallum, (g) a testator devised to his executors and their heirs a messuage in Ipswich, subject to the payment of the several annual sums, making together 107. per annum, part of which was given to charitable uses; and he devised the residue of his real estate, in trust, to be sold, and directed the monies arising from the sale of his real estate and from the rents till sold, and from his personal estate, to be distributed as therein mentioned. On a question whether the annual sums, which were void by the statute 9 Geo. II. c. 36, should sink into the estate for the benefit of the residuary legatees, or go to the heir-at-law as so much of the real estate undisposed of, Lord Camden held, that the heir was entitled. "The rule as to real estate is," said his lordship, "that where the intention of the testator is to devise the residue, exclusive of a part given away, the residuary devisee shall not take that part in any event. If he had said, 'I give my estates, over and above the rent-charge,' it would have been more plain; it is the same thing as if he had so expressed himself. The rentcharge is severed for ever from the devise which he gives to the residuary legatee." The court decided altogether on the testator's intention, and its strong reluctance to disinherit an heir-at-law (h). In Bland v. Wilkins (i), lands were given to E. N. in fee, (f) Mogg v. Hodges, 2 Ves. sen. 52; Belt's Suppl. 284; S. C. 1 Cox, 9. (g) Ambl. 643. (h) The decree declared that the rent-charge of 107. a year, devised to charitable uses, was void, and that the heir-at-law was entitled to it, the same not having been devised to the residuary legatees of the money to arise by the sale of the testator's real estate. Ambl. 645 n. (7), by Blunt. (i) Cited 1 Br. C. C. 61. upon condition that her executors and administrators should pay 107. to a charity, Sir Thomas Sewell held, the 10l. should go to the heir-at-law, as part of the residue of the land undisposed of. So the heir-at-law was held entitled to the produce of descendible freeholds, which were devised in trust to sell and pay legacies to charities (k). 2. When devisees are entitled to void charges.] A distinction not very easy of application has been made, that if the estate be given to devisees (1) in such a way that a charge is to be created by the act of another person, raising a question between that person and the devisees, the heir has no claim; but if the devisor (m) has himself created the charge, and to the extent of that charge the intention appears on the face of the will, not to give the estate to the devisees, it will (k) Hillyard v. Taylor, Ambl. 713. In a case where lands were limited by a will for a term of years, upon trust, to raise 20,000l. out of the rents, to be applied in the purchase of lands, to be conveyed to such persons as should then be in possession of certain other estates, and subject to the term the estates were limited to A. for life, with remainders over; and it happened that the person so in possession at the time when the conveyance should have been made, was not in existence at the time of the testator's death, so that the uses were void. On a question whether the term was void, because its object could not be carried into effect, or whether the heir should take the interest given for particular purposes, Lord Eldon said, suppose it had been a devise to the use of a charity, which the law would not permit to take effect, the cases authorize me to say, that the beneficial interest in the term would not go to the devisee, unless it clearly appeared that such was the intention of the testator. Here the interest is given minus in value 20,000l. and only with a deduction of that sum. The testator, then, has said that the devisees shall not take it. The policy of the law will not permit the uses for which the testator intended it to take effect; and, in such a case, in the absence of any expression of intention on the part of the testator with respect to a purpose which the law will allow, the doctrine of law is this, that he shall take the interest, who takes independent of all intention, and on whom the law casts it; and therefore the money will be raised for the heir-at-law, and not for the devisees. Tregonwell v. Sydenham, 3 Dow, 194. (1) Levet v. Needham, 2 Vern. 138. (m) Emblyn v. Freeman, Prec. Ch. 541. P to the extent of that charge, the particular object failing, go to the heir; but such a question upon a will is always as to the testator's intention (n). In the case of a charge upon real estate, which is void by the statute, it is laid down, that it shall sink in favour of the devisee, but it is otherwise where it is an exception out of the devise. Thus, where 1000l. was directed to be laid out in lands for an individual, charged with an annual sum for a charity, a decree as to the void charge was made in favour of the specific devisee, in preference to the residuary legatee (o). Where a testator devised real estates to a person in fee, subject to, and charged with payment of any sum not exceeding 10,000l.; to such persons, and at such times, and in such proportions as the testator, by a letter or other note, or memorandum or writing under his hand, to be delivered to, or left with the devisee, should appoint; not doubting or distrusting her honour or integrity in the performance of his will and intention therein. (n) See 19 Ves. 363, 364. The following cases, in addition to those stated, may be cited as exceptions to the rule that there will be a resulting trust for the heir.-Coningham v. Mellish, Prec. Ch. 31; Rogers v. Rogers, 3 P. Wms. 193, S. C. Cas. temp. Talb. 268; North v. Crompton, 1 Ch. Cas. 196; Mallabar v. Mallabar, Cas. temp. Talb. 78; Cook v. Duckenfield, 2 Atk. 562; Popham v. Lady Aylesbury, Ambl. 68; Kennell v. Abbott, 4 Ves. 802; Wright v. Wright, 16 Ves. 188. See also Hope v. Taylor, 1 Burr. 268; Hardacre v. Nash, 5 T. R. 716; Smith v. Coffin, 2 H. Bl. 444. (0) Wright v. Row, 1 Br. C. C. 61; Barrington v. Hereford, cited ibid. In Kennell v. Abbott, 4 Ves. 810, 811, Sir R. P. Arden, said, "It was long doubted, whether if an estate was devised charged with legacies, which failed from the nature of the legacies, as if they were charitable legacies, the devisee was entitled to so much as consisted of those legacies. In Barrington v. Harris, in which the question arose, Lord Bathurst at first thought the heir entitled upon Cruse v. Barley, 3 P. Wms. 20, and Arnold v. Chapman, ante, p. 207, but afterwards his lordship changed his opinion, and determined, and it is now perfectly settled, that if an estate is devised, charged with legacies, and the legacies fail, no matter how, the devisee shall have the benefit of it, and take the estate." The testator wrote a letter to the devisee, whereby, after reciting the devise to her in the words of the will, in pursuance of his said power, and in confidence of the trust he reposed in her by his said will, he declared it was his will, and desired her, either by sale or mortgage, or otherwise, as to her should seem meet and convenient, to raise so much money as would be sufficient to discharge not only his just debts and legacies bequeathed in his will, and charged upon his said estate, and also the several sums following, to the several persons and for the several uses in the manner thereinafter mentioned. Then he gave several sums to charitable and superstitious uses to the amount of about 6000l. On a question whether the void legacies should go to the heirs-atlaw as a resulting trust, or sink into the estate for the benefit of the devisee, it was held, that the void legacies sunk into the estate for the benefit of the devisee (p). Lord Eldon observed, that all the cases of charities in which the gifts rendered void by the statute did not go to the heir, seem to have been decided on one or other of these grounds, that the heir-at-law was completely disinherited— or that his claim was barred under an intention of the testator, express or clearly implied, and his lordship refers the decision in Jackson v. Hurlock, to the first of those principles;-in which it was argued, that the heir ought to have had the sum given to charitable uses, as the estate was given to the devisee subject to the payment; but the court rightly said, the testator gave the devisee the whole interest in the land, reserving only a power of appointment, and if he abstained from appointing, or made an appointment which was void, he did not diminish the whole interest which was given to the devisee, and the heir was altogether disinherited. That points to the very distinction noticed by Lord Camden in the case of Gravenor v. Hallum (q), where the estate was given to the devisee, subject to a certain rent-charge which he created by his will, severing the rent-charge from the (p) Jackson v. Hurlock, 2 Eden, (q) Ante, p. 208. 263. devise, and thereby manifesting an intention that it should not go to the devisee, and the uses being void, the rentcharges went to the heir-at-law. That was Lord Northington's decision; and the decision in Barrington v. Hereford (r), proceeded upon the same principle (s). Where a testator gave unto the minister or clergyman for the time being of a parish, an annuity to be issuing out of a particular real estate, upon trust to apply the same in instructing poor boys of the parish, with power of distress in case of non-payment; and then devised the estate, subject to the rent-charge, to trustees in fee, in trust to pay the rents thereof to a person for life, and after his decease, in trust to apply a sufficient part of the rents for the maintenance of his two nephews, until their respective ages of 24 years, and when they should have attained their respective ages of 24 years, the testator devised the estate (subject for ever to the said rent-charge,) unto them, as tenants in common in fee. The testator then gave the remainder of his real and personal estates, not by him thereinbefore disposed of, to his trustees, in trust to sell, and to apply the same equally amongst certain parties. The rent-charge for the charity being void by the mortmain act, 9 George II. c. 36, on a question whether it went to the residuary devisees under the will, or to the specific devisees of the premises on which it was charged; it was decided, that it should sink for the benefit of the specific devisees the nephews, as part of the produce of the premises devised to them; as the testator appeared to have expressly excepted the annuity out of the residue of his estate, and could never have had it in contemplation, that it should in any case go to the residuary devisees (t). (r) Ante, p. 210. by the court for excluding the gene (8) Tregonwell v. Sydenham, 3 ral residuary devisees, would apply Dow, 213, 214. (t) Baker v. Hall, 12 Ves. 497. It does not appear easy to reconcile this case with some decisions which have already been stated, see ante, pp.206-209, and the reason assigned with equal force to the specific devisees, and let in the right of the heir-at-law, who does not, however, appear to have been before the court. |