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tutes of mort

and trusts, the foundation of modern conveyancing. But, But the statute unfortunately for the inventors themselves, they did not long made uses subenjoy the advantage of their new device; for the statute 15 ject to the staRic. II. c. 5, enacts, that the lands which had been so pur- main. chased to uses should be amortised by licence from the crown, or else be sold to private persons; and that, for the future, uses shall be subject to the statutes of mortmain, and forfeitable like the lands themselves. And whereas the statutes had been eluded by purchasing large tracts of land, adjoining to churches, and consecrating them by the name of church-yards, such subtile imagination is also declared to be within the compass of the statutes of mortmain. And civil or lay corporations, as well as ecclesiastical, are also declared to be within the mischief, and of course within the remedy provided by those salutary laws. And, lastly, as during the times of popery lands were frequently given to superstitious uses, though not to any corporate bodies; or were made liable in the hands of heirs and devisees to the charge of obits, chaunteries, and the like, which were equally pernicious in a well-governed state as actual alienations in mortmain; therefore, at the dawn of the reformation, the statute 23 Hen. VIII. c. 10, declares, that all future grants of lands for any of the purposes aforesaid, if granted for any longer term than twenty years, shall be void.

But, during all this time, it was in the power of the crown, The Crown may by granting a licence of mortmain, to remit the forfeiture, so

stili grant li

cences to aliene far as related to its own rights; and to enable any spiritual or take lands, or other corporation to purchase and hold any lands or tenements in perpetuity; which prerogative is declared and confirmed by the statute 18 Edw. III. st. 3, c. 3. But, as doubts were conceived at the time of the revolution how far such licence was valid (n), since the king had no *power to dis- [ * 273 ] pense with the statutes of mortmain by a clause of non obstante (0), which was the usual course, though it seems to have been unnecessary (p): and as, by the gradual declension

&c. in mortmain.

(n) 2 Hawk. P. C. 391. () Stat. 1 W. & M. st. 2, c. 2. (p) Co. Litt. 99.

of mesne signiories through the long operation of the statute of quia emptores, the rights of intermediate lords were reduced to a very small compass; it was therefore provided by the statute 7 & 8 W. III. c. 37, that the crown for the future at its own discretion may grant licences to aliene or take in mortmain, of whomsoever the tenements may be

holden ). By 1 & 2 P. & After the dissolution of monasteries under Henry VIII. M. c. 8, the statutes of mort

though the policy of the next popish successor affected to main were sus- grant a security to the possessors of abbey lands, yet, in order pended for twenty years.

to regain so much of them as either the zeal or timidity of their owners might induce them to part with, the statutes of mortmain were suspended for twenty years by the statute 1 & 2 P. & M. c. 8, and during that time, any lands or

tenements were allowed to be granted to any spiritual corEnactments for poration without any licence whatsoever. And, long afterthe augmenta- wards, for a much better purpose, the augmentation of poor livings.

livings, it was enacted by the statute 17 Car. II. c. 3, that appropriators may annex the great tithes to the vicarages; and that all beneficies under 1001.

per annum may augmented by the purchase of lands without licence of mortmain

in either case; and the like provision hath been since made, Queen Aune's in favour of the governors of Queen Anne's bounty (9). It bounty. hath also been held (r), that the statute 23 Hen. VIII. be

fore mentioned did not extend to any thing but superstitious uses; and that therefore a man may give lands for the main

tenance of a school, an hospital, or any other charitable Charitable uses.

But as it was apprehended, from recent experience, that persons on their death-beds might make large and improvident dispositions even for these good purposes, and defeat the political ends of the statutes of mortmain; it is therefore enacted by the statute 9 Geo. II. c. 36, that no lands or tenements, or money to be laid out thereon, shall

tion of poor

be

lises.

(9) Stat. 2 & 3 Ann. c. 11.

(r) 1 Rep. 24.

(7) See the last note.

be given for or charged with any charitable uses whatsoever, unless by deed indented, executed in the presence of two witnesses, twelve calendar months before the death of the donor, and enrolled in the Court of Chancery within six months after its execution, (except stocks in the public funds, which may be transferred within six months previous to the donor's death), and unless such gift be made to take effect immediately, and be without power of revocation: and that all other gifts shall be void (8). The two universities,

(8) A bequest of money, to be em- (9 Ves. 543), it was justly termed an ployed in building upon, or otherwise absurd distinction, to say that a testator improving, land already in mortmain, shall not give land to a charity, yet that is not considered a violation of the sta- he may give money conditionally, in tute. (Altorney-General v. Parsons, 8 consideration of another's giving land Ves. 191. Attorney-General v. Mun- for a charity. And it is now perfectly by, 1 Meriv. 345. Corbyn v. French, well settled, notwithstanding some ear4 Ves. 428). And where a testator lier decisions of Lord Hardwicke to the has pointed out such a mode of apply. contrary, that if a testator give personing his bequest, in favour of a charity, al property“ to erect and endow" a as the policy of the law will not admit, school, or hospital, it must be considered, still, if he has left it entirely optional unless it be otherwise declared in his to his executors, or trustees, to adopt will, that it was the testator's intention that mode, or to select some other not land should be acquired, as a necessaliable to the same objections, the be- ry part of his purpose: (Chapman v. quest may be legally carried into effect. Brown, 6 Ves. 408. Attorney-General (Grimmet v. Grimmet, Ambl. 212; S. C. v. Davies, 9 Ves. 544): but where the 1 Dick. 251. Kirkbank v. Hudson, 7 testator has expressly directed that no Price, 217. Curtis v. Hutton, 14 Ves. part of the money bequeathed shall be 539. Attorney-General v. Goddard, employed in the purchase of land, it 1 Turn. & Russ. 350). But, where the being his expectation that other pertestator has used words of request, or sons will, at their expense, purchase recommendation, (not expressly leaving lands and buildings for the purposes the matter to the discretion of his exe- intended, there the statute has been cutors), those words of request are held held not to apply. (Henshaw v. Atkinto be mandatory, (Taylor v. George, son, 3 Mad. 313). So, where a testa2 Ves. & Bea. 378. Paul v. Compton, tor's directions can be sufficiently an8 Ves. 380. Parsons v. Baker, 18 Ves. swered by hiring land or buildings for 476), and if they point to an appro- the purposes of a charity, the bequest priation of the legacy contrary to the may be sustained: (Attorney-General policy of the law, the legacy must fail. v. Parsons, 8 Ves. 191. Johnson v. (Grieves v. Case, 1 Ves. junr. 550). Swan, 3 Mad. 467): but, it seems,

In the Attorney-General v. Davies, such hiring must not be on lease, or it

their colleges, and the scholars upon the foundation of the colleges of Eton, Winchester, and Westminster, are ex

would be an acquisition, by the testa- Graves, Ambl. 158), is now confirmed tor's direction, of such an interest in by repeated decisions, that where a lands, tenements, or hereditaments, as testator has charged his real estate, in the third section of the statute prohi- aid of his personal, with payment of all bits. (Blandford v. Thackerell, 2 Ves. his legacies, there, if the personal esjun. 241). And where a testator has tate be not sufficient for payment of directed that his real and personal es- the whole, charitable legacies must tate shall be employed by the trustees abate, and receive such average pronamed in his will, in the purchase of portion only as the personal assets afland and the erection of a school-house ford for the discharge of the whole pethereon, and the subsequent endow- cuniary legacies. If a court of equity ment and support of the school so to were to marshal the assets, and secure be erected; the illegality of this gift full payment of the charitable legacies, cannot be cured by an offer, on the by throwing the other pecuniary legapart of the trustees or others, to pro- cies upon the testator's real estate, it vide at their own expense the land re. would be enabling that to be done cirquired. (Attorney-General v. Nash, 3 cuitously which cannot be done directBrown, 588, 595).

ly. (Attorney-General v. Tyndall, 2 Charitable legacies, secured by mort- Eden, 210. Waller v. Childs, Ambl. gages on lands, (Currie v. Pye, 17 Ves. 526. Foster v. Blagden, Ambl. 704. 464. Attorney-General v. Meyrick, 2 Ridges v. Morrison, 1 Cox, 181). Ves. sen. 46), or on turnpike tolls, As the object of the statute of mort(Corbyn v. French, 4 Ves. 380. Howse main was wholly political, as it grew v. Chapman, 4 Ves. 545), or by an as- ont of local circumstances, and was signment of poor rates, or county rates, meant to have merely a local operation, (Finch v. Squire, 10 Ves. 44. The King it is decided that its provisions do not v. Bates, 3 Price, 358), are all void; extend to the alienation of land in the as is a bequest of navigation shares to West India colonies; (Attorney-Genecharitable uses; (Buckeridge v. Ingram, ral v. Stewart, 2 Meriv. 161); or in 2 Ves. jun. 663); for in each of these Scotland. (Mackintosh v. Townsend, 16 cases it has been held, that the dona. Ves. 338). But, a devise of real estion not only savours of the realty, but tate situate in England, for charitable partakes of it; that a real interest purposes, will not be the less void bearising out of the soil, (though not the cause such purposes are to be carried soil itself), is attempted to be given; into execution out of England. (Curtis and that this attempt, being in fraud v. Hutton, 14 Ves. 541). of the statute, cannot be carried into It has been said, that if an heir-ateffect.

law will confirm his ancestor's devise of A bequest to a charity being void so land to a charity, no court will take it far as it touches any interest in land, away; for the gift becomes the act and it follows, upon principle, and, after deed of the heir: (Attorney-General v. some fluctuation, (Attorney-General v. Graves, Ambl. 138; and see Pickering

cepted 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 t upon the respective foundations.

2. Secondly, alienation to an alien is also a cause of for- 2. Alienation to

an alien is a

v. Lord Stamford, 2 Ves. jun. 584); such cases the bequest may be sup-
however, as an immediate gift from ported. (Attorney-General v. Stepney,
the heir would be good only in case it 10 Ves. 29. Waite v. Webb, 6 Mad.
was made a year before his death; up- 71).
on the principle of the statute, he ought Where a bequest of money to be laid
to live a year after confirmation of the out in land is void under the Mortmain
devise to give it validity.

Act, the money never becomes im-
When a bequest for charitable pur- pressed with the character of land, and
poses, which, if it stood alone, would no resulting trust arises in favour of the
be valid, is coupled with and depend- testator's heir-at-law. (Attorney-Ge-
ent upon a devise void under the sta- neral v. Tonner, 2 Ves. jun. 7. Chap-
tute of mortmain, the devise being the man v. Brown, 6 Ves. 411).
principal, and failing, the accessory be- By the statute of 43 Geo. III. c. 107,
quest must also fail. (Attorney-Gene- the operation of the Mortmain Act is
ral v. Davies, 9 Ves. 543. Chapman so far qualified as to allow any one to
v. Brown, 6 Ves. 410. Attorney-Gene• give, by deed inrolled, or by will, any
ral v. Goulding, 2 Brown, 429). And real or personal property for the aug-
where an undefined portion of a legacy mentation of Queen Anne's bounty.
is directed by the testator to be applied And by statute 43 Geo. III. c. 108,
for purposes which the policy of the persons are allowed to give, by deed or
law does not admit, the bequest of the will, lands not exceeding five acres, or
residue to a charity which the law goods and chattels not exceeding 5001.,
sanctions, cannot take effect; for, the for the purposes of promoting the
illegal part of the gift being undefined, building or repairing of churches, or of
it is impossible to ascertain the amount houses for the residence of ministers,
of the residue. (Attorney-General v. and of providing church-yards, or (with
Hinzman, 2 Jac. & Walk. 277. Vezey certain restrictions) glebes. If such
V. Jamson, 1 Sim. & Stu. 71. Grieves gift exceed the prescribed limits, it is
v. Case, 1 Ves. jun. 553). If, indeed, not therefore void, the Lord Chancellor
the legal bequest and the illegal purpose may reduce it.
are not so connected as to be insepara- The greater part of this note is ex-
ble, and the proportions are defined, or tracted from 2 Hovenden on Frauds,
capable of being exactly calculated, in 308_312.

† By the 43 Geo. III. c. 101, this these colleges may now hold any numpart of the statute is repealed, so that ber of advowsons.-CH, VOL. II.

HH

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