tutes of mort main. and trusts, the foundation of modern conveyancing. But, But the statute unfortunately for the inventors themselves, they did not long 15 Ric. II. c. 5, enjoy 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 purchased 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. The Crown may still grant li cences to aliene or take lands, &c. in mort main. But, during all this time, it was in the power of the crown, by granting a licence of mortmain, to remit the forfeiture, so far as related to its own rights; and to enable any spiritual 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. were conceived at the time of the revolution cence 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 But, as doubts how far such li (n) 2 Hawk. P. C. 391. (0) Stat. 1 W. & M. st. 2, c. 2. (p) Co. Litt. 99. By 1 & 2 P. & M. c. 8, the statutes of mort pended for twenty years. Enactments for the augmenta tion of poor livings. 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 (7). be After the dissolution of monasteries under Henry VIII. 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 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 corporation without any licence whatsoever. And, long afterwards, for a much better purpose, the augmentation of poor 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 100l. per annum may augmented by the purchase of lands without licence of mortmain in either case; and the like provision hath been since made, in favour of the governors of Queen Anne's bounty (9). It hath also been held (r), that the statute 23 Hen. VIII. before mentioned did not extend to any thing but superstitious uses; and that therefore a man may give lands for the maintenance of a school, an hospital, or any other 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 (r) 1 Rep. 24. Queen Anne's bounty. Charitable uses. (q) Stat. 2 & 3 Ann. c. 11. (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 employed in building upon, or otherwise improving, land already in mortmain, is not considered a violation of the statute. (Attorney-General v. Parsons, 8 Ves. 191. Attorney-General v. Munby, 1 Meriv. 345. Corbyn v. French, 4 Ves. 428). And where a testator has pointed out such a mode of applying his bequest, in favour of a charity, as the policy of the law will not admit, still, if he has left it entirely optional to his executors, or trustees, to adopt that mode, or to select some other not liable to the same objections, the bequest may be legally carried into effect. (Grimmet v. Grimmet, Ambl. 212; S. C. 1 Dick. 251. Kirkbank v. Hudson, 7 Price, 217. Curtis v. Hutton, 14 Ves. 539. Attorney-General v. Goddard, 1 Turn. & Russ. 350). But, where the testator has used words of request, or recommendation, (not expressly leaving the matter to the discretion of his executors), those words of request are held to be mandatory, (Taylor v. George, 2 Ves. & Bea. 378. Paul v. Compton, 8 Ves. 380. Parsons v. Baker, 18 Ves. 476), and if they point to an appropriation of the legacy contrary to the policy of the law, the legacy must fail. (Grieves v. Case, 1 Ves. junr. 550). In the Attorney-General v. Davies, (9 Ves. 543), it was justly termed an absurd distinction, to say that a testator shall not give land to a charity, yet that he may give money conditionally, in consideration of another's giving land for a charity. And it is now perfectly well settled, notwithstanding some earlier decisions of Lord Hardwicke to the contrary, that if a testator give personal property "to erect and endow" a school, or hospital, it must be considered, unless it be otherwise declared in his will, that it was the testator's intention land should be acquired, as a necessary part of his purpose: (Chapman v. Brown, 6 Ves. 408. Attorney-General v. Davies, 9 Ves. 544): but where the testator has expressly directed that no part of the money bequeathed shall be employed in the purchase of land, it being his expectation that other persons will, at their expense, purchase lands and buildings for the purposes intended, there the statute has been held not to apply. (Henshaw v. Atkinson, 3 Mad. 313). So, where a testator's directions can be sufficiently answered by hiring land or buildings for the purposes of a charity, the bequest may be sustained: (Attorney-General v. Parsons, 8 Ves. 191. Johnson v. Swan, 3 Mad. 467): but, it seems, 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 testator's direction, of such an interest in lands, tenements, or hereditaments, as the third section of the statute prohibits. (Blandford v. Thackerell, 2 Ves. jun. 241). And where a testator has directed that his real and personal estate shall be employed by the trustees named in his will, in the purchase of land and the erection of a school-house thereon, and the subsequent endowment and support of the school so to be erected; the illegality of this gift cannot be cured by an offer, on the part of the trustees or others, to provide at their own expense the land required. (Attorney-General v. Nash, 3 Brown, 588, 595). Charitable legacies, secured by mortgages on lands, (Currie v. Pye, 17 Ves. 464. Attorney-General v. Meyrick, 2 Ves. sen. 46), or on turnpike tolls, (Corbyn v. French, 4 Ves. 380. Howse v. Chapman, 4 Ves. 545), or by an assignment of poor rates, or county rates, (Finch v. Squire, 10 Ves. 44. The King v. Bates, 3 Price, 358), are all void; as is a bequest of navigation shares to charitable uses; (Buckeridge v. Ingram, 2 Ves. jun. 663); for in each of these cases it has been held, that the donation not only savours of the realty, but partakes of it; that a real interest arising out of the soil, (though not the soil itself), is attempted to be given; and that this attempt, being in fraud of the statute, cannot be carried into effect. A bequest to a charity being void so far as it touches any interest in land, it follows, upon principle, and, after some fluctuation, (Attorney-General v. Graves, Ambl. 158), is now confirmed by repeated decisions, that where a testator has charged his real estate, in aid of his personal, with payment of all his legacies, there, if the personal estate be not sufficient for payment of the whole, charitable legacies must abate, and receive such average proportion only as the personal assets afford for the discharge of the whole pecuniary legacies. If a court of equity were to marshal the assets, and secure full payment of the charitable legacies, by throwing the other pecuniary legacies upon the testator's real estate, it would be enabling that to be done circuitously which cannot be done directly. (Attorney-General v. Tyndall, 2 Eden, 210. Waller v. Childs, Ambl. 526. Foster v. Blagden, Ambl. 704. Ridges v. Morrison, 1 Cox, 181). As the object of the statute of mortmain was wholly political, as it grew out of local circumstances, and was meant to have merely a local operation, 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 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 † upon the respective foundations. 2. Secondly, alienation to an alien is also a cause of for- 2. Alienation to 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, 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. 107, the operation of the Mortmain Act is so far qualified as to allow any one to give, by deed inrolled, 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 500%., for the purposes of promoting the building or repairing of churches, or of houses for the residence of ministers, and of providing church-yards, or (with certain restrictions) glebes. If such gift exceed the prescribed limits, it is not therefore void, the Lord Chancellor may reduce it. The greater part of this note is extracted from 2 Hovenden on Frauds, 308-312. an alien is a By the 45 Geo. III. c. 101, this part of the statute is repealed, so that VOL. II. these colleges may now hold any number of advowsons.-CH. H H |