ster, are excepted out of this act: but such exemption was granted with this proviso, that no college shall be at liberty to purchase more advowsons than are equal in number to one moiety of the fellows or students (11) upon the respective foundations. tion, it is decided that its provisions do not extend to the alienation of land in the West India colonies; (Attorney General v. Stewart, 2 Meriv. 161;) or in Scotland. (Mackintosh v. Townsend, 16 Ves. 338.) But, a devise of real estate situate in England, for charitable purposes, will not be the less void because such purposes are to be carried into execution out of England. (Curtis v. Hutton, 14 Ves. 541.) It has been said, that if an heir-atlaw will confirm his ancestor's devise of land to a charity, no court will take it away; for the gift becomes the act and deed of the heir: (Attorney General v. Graves, Ambl. 158; and see Pickering v. Lord Stamford, 2 Ves. jun. 584;) however, as an immediate gift from the heir would be good only in case it was made a year before his death; upon the principle of the statute, he ought to live a year after confirmation of the devise to give it validity. When a bequest for charitable purposes, which, if it stood alone, would be valid, is coupled with and dependent upon a devise void under the statute of mortmain, the devise being the principal, and failing, the accessory bequest must also fail. (Attorney General v. Davies, 9 Ves. 543; Chapman v. Brown, 6 Ves. 410; Attorney General v. Goulding, 2 Brown, 429.) And where an undefined portion of a legacy is directed by the testator to be applied for purposes which the policy of the law does not admit, the bequest of the residue to a charity which the law sanctions, cannot take effect; for, the illegal part of the gift being undefined, it is impossible to ascertain the amount of the residue. (Attorney General v. Hinxman, 2 Jac. & Walk. 277; Vezey v. Jamson, 1 Sim. & Stu. 71; Grieves v. Case, 1 Ves. jun. 553.) If, indeed, the legal bequest and the illegal purpose are not so connected as to be inseparable, and the proportions are defined, or capable of being exactly calculated, in such cases the bequest may be supported. (Attorney General v. Stepney, 10 Ves. 29; Waite v. Webb, 6 Mad. 71.) Where a bequest of money to be laid out in land is void under the Mortmain Act, the money never becomes impressed with the character of land, and no resulting trust arises in favour of the testator's heir-at-law. (Attorney General v. Tonner, 2 Ves. jun. 7; Chapman v. Brown, 6 Ves. 411.) By the statute of 43 Geo. III. c. 137, the operation of the Mortmain Act is so far qualified as to allow any one to give, by deed enrolled, or by will, any real or personal property for the augmentation of Queen Anne's bounty. And by statute 43 Geo. III. c. 108, persons are allowed to give, by deed, or will, lands not exceeding five acres, or goods and chattels not exceeding 5007., for the purposes of promoting the building or repairing of churches, or of houses for the residence of ministers, and of providing churchyards, or (with certain restrictions) glebes. If such gift exceed the prescribed limits, it is not therefore void, the lord chancellor may reduce it.1 The greater part of this note is extracted from 2 Hovenden on Frauds, 308-312. (11) By the 45 Geo. III. c. 101, this part of the statute is repealed, so an alien is a feiture. 2. Secondly, alienation to an alien is also a cause of for- 2. Alienation to feiture to the crown of the land so alienated: not only on cause of foraccount of his incapacity to hold them (12), which occasions him to be passed by in descents of land (s), but likewise on account of his presumption in attempting, by an act of his own, to acquire any real property; as was observed in the preceding volume (t). particular tenestates larger than their own. 3. Lastly, alienations by particular tenants, when they 3. Alienation by are greater than the law entitles them to make, and devest ants, granting the remainder or reversion (u) (13), are also forfeitures to him whose right is attacked thereby. As, if tenant for his own life alienes by feoffment or fine for the life of another, or in tail, or in fee; these being estates, which either must or may last longer than his own, the creating them is not only beyond his power, and inconsistent with the nature of his interest, but is also a forfeiture of his own particular estate to him in remainder or reversion (v). For which there seem to be two reasons: First, because such alienation amounts to a renunciation of the feodal connexion and dependence; it implies a refusal to perform the due renders and services to the lord of *the fee, of which fealty is con- [ *275 ] stantly one; and it tends in its consequence to defeat and devest the remainder or reversion expectant: as therefore that is put in jeopardy by such act of the particular tenant, it is but just, that, upon discovery, the particular estate should be forfeited and taken from him, who has shewn so manifest an inclination to make an improper use of it. The other reason is, because the particular tenant, by granting a larger estate than his own, has by his own act determined and put an entire end to his own original interest; and on such determination the next taker is entitled to enter regularly, as in his remainder or reversion. The same law which is thus laid down with regard to tenants for life, holds also with respect to all tenants of the mere freehold or of chattel interests; but if tenant in tail alienes (14) in fee, this (s) See pag. 249, 250. (t) Book i. pag. 372. that these colleges may now hold any number of advowsons.-CH. (12) See ante, p. 131. (13) See ante, pp. 153, 171, and (u) Co. Litt. 251. (v) Litt. s. 415. the note to the last cited page. (14) The alienation must be by feoffment, or by matter of record, otherwise it will not even work a dis 275 Disclaimer of tenure a forfeiture. is no immediate forfeiture to the remainder-man, but a mere discontinuance (as it is called (w)) of the estate tail, which the issue may afterwards avoid by due course of law (x): for he in remainder or reversion hath only a very remote and barely possible interest therein, until the issue in tail is extinct. But, in case of such forfeitures by particular tenants, all legal estates by them before created, as, if tenant for twenty years grants a lease for fifteen, and all charges by him lawfully made on the lands, shall be good and available in law (y). For the law will not hurt an innocent lessee for the fault of his lessor; nor permit the lessor, after he has granted a good and lawful estate, by his own act, to avoid it, and defeat the interest which he himself has created. Equivalent, both in its nature and its consequences, to an illegal alienation by the particular tenant, is the civil crime of disclaimer; as, where a tenant who holds of any lord, neglects to render him the due services, and, upon an action brought to recover them, disclaims to hold of his lord. Which disclaimer of tenure in any court of record is a forfeiture of the lands to the lord (z), upon reasons most apparently feodal. And so likewise, if in any court of record the [ *276] *particular tenant does any act which amounts to a virtual disclaimer; if he claims any greater estate than was granted him at the first infeodation, or takes upon himself those rights which belong only to tenants of a superior class (a); if he affirms the reversion to be in a stranger, by accepting his fine, attorning as his tenant, collusive pleading, and the like (b); such behaviour amounts to a forfeiture of his particular estate. III. By lapse a forfeiture oc neglect of the patron to pre III. Lapse (15) is a species of forfeiture, whereby the right casioned by the of presentation to a church accrues to the ordinary by neglect of the patron to present, to the metropolitan by neglect of the ordinary, and to the king by neglect of the metropolitan. For, it being for the interest of religion, and the good of the public, that the church should be provided with an officiating sent to a vacant church. @ minister, the law has therefore given this right of lapse, in order to quicken the patron, who might otherwise, by suffering the church to remain vacant, avoid paying his ecclesiastical dues, and frustrate the pious intentions of his ancestors. This right of lapse was first established about the time (though not by the authority (c)) of the council of Lateran (d), which was in the reign of our Henry the second, when the bishops first began to exercise universally the right of institution to churches (e). And therefore, where there is no right of institution, there is no right of lapse: so that no (16) donative can lapse to the ordinary (ƒ), unless it hath been augmented by the Queen's bounty (g). But no right of lapse can accrue, when the original presentation is in the crown (h) (17). sent by lapse months' default The term, in which the title to present by lapse accrues The title to prefrom the one to the other successively, is six calendar accrues after six months (i), (following in this case the computation of the in the patron. church, and not the usual one of the common law,) and this *exclusive of the day of the avoidance (k) (18). But, if the [277] bishop be both patron and ordinary, he shall not have a double time allowed him to collate in (1); for the forfeiture accrues by law, whenever the negligence has continued six months in the same person. And also if the bishop doth not collate his own clerk immediately to the living, and the (c) 2 Roll. Abr. 336, pl. 10. (d) Bracton, 1. 4, tr. 2, c. 3. (e) See pag. 23. (ƒ) Bro. Abr. tit. Quar. Imped.; 3 Cro. Jac. 518. (g) Stat. 1 Geo. I. st. 2, c. 10. (16) See ante, p. 23, n. (10). (17) Mr. Christian observes, that "if a right of lapse accrues to the bishop and he dies, or is translated before he avails himself of it, the right of presentation to the lapsed benefice [See the case of The Bishop of London v. The Attorney General, cited ante, p. 23, n. 11.-ED.] (h) Stat. 17 Edw. II. c. 8; 2 Inst. 272. (i) 6 Rep. 62; Regist. 42. (k) 2 Inst. 361. (1) Gibs. Cod. 769. (18) But Sir William Grant, M. R. said, in the case of Lester v. Garland, 14 Ves. 255, that he did not find this position confirmed by the authority to which Blackstone refers and Sir William Grant was right. See, however, the note to Vol. I. p. 463, where decisions are cited in which it has been ruled that the day in which an act was done may be excluded from computation, if its inclusion would work a forfeiture. [ *278 ] become void by the patron is patron presents, though after the six months are lapsed, yet his presentation is good, and the bishop is bound to institute the patron's clerk (m). For, as the law only gives the bishop this title by lapse, to punish the patron's negligence, there is no reason that, if the bishop himself be guilty of equal or greater negligence, the patron should be deprived of his turn. If the bishop suffer the presentation to lapse to the metropolitan, the patron also has the same advantage if he presents before the archbishop has filled up the benefice; and that for the same reason. Yet the ordinary cannot, after lapse to the metropolitan, collate his own clerk to the prejudice of the archbishop (n). For he had no permanent right and interest in the advowson, as the patron hath, but merely a temporary one; which having neglected to make use of during the time, he cannot afterwards retrieve it. But if the presentation lapses to the king, prerogative here intervenes and makes a difference; and the patron shall never recover his right till the king has satisfied his turn by presentation: for nullum tempus occurrit regi (o). And therefore it may seem as if the church might continue void for ever unless the king shall be pleased to present, and a patron thereby be absolutely defeated of his advowson. But, to prevent this inconvenience, the law has lodged a power in the patron's hands of as it were compelling the king to present. For if, during the delay of the crown, the patron himself presents, and his clerk is instituted, the king indeed by presenting another may turn out the patron's clerk; or, after induction, may remove him by quare impedit: but, if he does not, and the patron's clerk dies incumbent, or is canonically deprived, the king hath lost his right, which was only to the next or first presentation (p). *In case the benefice becomes void by death, or cession If the benefice through plurality of benefices, there the patron is bound to death or cession, take notice of the vacancy at his own peril; for these are matters of equal notoriety to the patron and ordinary: but in case of a vacancy by resignation, or canonical deprivaor canonical de- tion, or if a clerk presented be refused for insufficiency, bishop must give these being matters of which the bishop alone is presumed bound to take notice of the vacancy; but, if by resignation privation, the him notice. (m) 2 Inst. 273. (p) 7 Rep. 28; Cro. Eliz. 44. 355. (n) 2 Roll. Abr. 368. (0) Dr. & St. d. 2, c. 36; Cro. Car. |