within the stat of 9 Geo. 2, c. 36. whatsoever, for the benefit of the donor or grantor, or of any Testamentary person or persons claiming under him; provided always that dispositions such limitations, &c. shall not be construed to extend to any purchase or transfer made for valuable consideration (c). The statute then declares, "that all gifts, grants, conveyances, appointments, assurances, transfers and settlements whatsoever, of any lands, tenements, or other hereditaments, or of any estate or interest therein, or of any charge or incumbrance affecting or to affect any lands, tenements, or hereditaments, or of any stock, money, goods, chattels, or other personal estate, or securities for money to be laid out or disposed of in the purchase of any lands tenements, or hereditaments, or of any estate or interest therein, or of any charge or incumbrance affecting or to affect the same, to or in trust for any charitable uses whatsoever, made in any other manner than by the Act is directed, shall be null and void;" with a proviso, that the Act shall not be construed to extend to the two universities, their colleges, and the scholars upon the foundation of the colleges of Eton, Winchester, or Westminster (d): with a further proviso, that no college, from June, 1736, shall be at liberty to purchase, acquire, receive, take, or hold more advowsons than are equal in number to one moiety of the fellows or students upon the respective foundations (e). And the Act also provides, that nothing therein contained shall be construed to extend to the disposition, grant or settlement of any real or personal estate lying or being within that part of Great Britain called Scotland (f). In the exposition of this statute it has been adjudged, that not only devises of land and bequests of money to be invested in land (g), are void, but also all such bequests as in any manner affect or relate to interests in real property. Thus, bequests to charities of money charged upon or to be raised by sale, mortgage, or otherwise, out of lands; also, terms for years; money due on mortgages, or to be invested in real security (h); money to pay off incumbrances affecting lands in mortmain; tolls, and money secured upon poor and county rates, have been adjudged void dispositions, under the provisions of the Act in question. We proceed in order to state the cases establishing the preceding remarks. (c) See 9 Geo. 4, c. 85. (d) See infra. (e) Repealed by the statute 45 Geo. 3, c. 101. (f) Infra; see 3 Russ. 328. (g) See Att. Gen. v. Ackland, 1 R. & M. 243. (h) Baker v. Sutton, 1 Keen, 224, infra, Sect. v. sub. sect. 4. Testamentary 1. Money charged on real estate. 1. And first, money charged on real estate. Thus, in Arnold v. Chapman (i), Thomas Emerson bequeathed 100% and all his books to his executors A. and B.; he gave a copyhold estate to the defendant Chapman, he causing to be paid to his executors 1,000Z.; and after payment of debts and legacies, the residue and remainder of all his estate, freehold, copyhold, leasehold, plate, rings, stock, &c. to the governors of the Foundling Hospital, and their successors, for ever. The executors brought a bill for 1,000l., to which there were several claimants; for, besides the charity, on whose behalf it was insisted, that the assets should be marshalled, and the debts and legacies charged on the real estate, that the personal might go clear to the charity, the devisee of the copyhold insisted, that the 1,000l. should not be raised at all; for that it was the same as if the condition was to pay to the charity, which was an unlawful act, that could not take effect, and therefore void, and the estate absolute. The next of kin insisted, that, as by the Statute of Mortmain it was void as to the charity, and as the particular devisee could not take without performing the condition, it should go as part of the testator's estate undisposed of, according to the Statute of Distributions. The executors claimed in their own right beneficially; and the heir claimed it as a resulting trust. Lord Hardwicke, C., declared, that the copyhold in the possession of the devisee was chargeable with the 1,000l. which ought to be raised, and in respect of which, he, in equity, was a trustee; but his Lordship disallowed the claim of the executors to it, who were to be considered as taking in the character of executors, and not beneficially; he also negatived the demand of the next of kin, who could only claim it as personalty, in which case the charity would have a prior claim; and with respect to the right of the charity, Lord Hardwicke thus expressed himself: "had he (the testator) devised the copyhold estate upon condition to pay 1,000l. to the governors, it would have been void by the statute; he has taken another method, by including it in a residuary bequest of real and personal estate and it is said that they can take, because, by giving it to the executors, he has made it part of his personal estate; and he may, undoubtedly, if he please, turn it into personal estate; but it must be for lawful purposes. But here the Act intervenes, which, if this were allowed, would be easily evaded; for it would be only directing the real estate to be sold, and the money given to the charity; and in the case of James (j), (i) Ì Ves. sen. 108; see also Henchmon v. Att. Gen. 3 Myl. & K. 485. this was determined to amount to a devise of the land itself; Testamentary because all charges, trusts, sums of money, &c. devised out of dispositions land to a charity, are made void by the Act." His Lordship then decreed, that the heir-at-law was entitled to the 1,000l. as a resulting trust. within the stat. of 9 Geo. 2, c. 36. So, secondly, a bequest of monies to arise from the sale of real 2. Money produced by sale of real estate. estate. Thus, in Attorney General v. Lord Weymouth (k), Sir John James by will, devised to his executors all his freehold and copyhold manors, messuages, lands, &c., and all his real estate whatsoever, in trust to sell, and pay the money with the intermediate rents and profits (all necessary charges deducted) to such persons and for such uses as he had thereafter given the same. He bequeathed 4,000l. to E. James; 4,000l. to F. Calthorpe; and to F. Grigby and C. Ray, 1,000l. to be laid out by them as a fund for certain charitable uses, which he forbore to mention, as they knew his designs as to charities; likewise 2,000l. to F. Grigby, for his care and trouble. He then directed his debts, funeral expenses, and legacies, to be paid out of his personal estate; but if deficient, such deficiency should be made good out of the money to arise from the sale of his real estate, or of the intermediate rents and profits; he bequeathed the money to arise by sale of his real estate, and the intermediate rents and profits, and also all his personal estate unto his said executors, in trust to pay one moiety to the governors of Bethlem Hospital, for the support and benefit of incurable lunatics, and to pay the other half to the treasurers of a society, who called themselves the governors of St. George's Hospital, near Hyde Park corner, to be applied towards carrying on the designs of the said hospital. The information prayed that the testator's estate might be sold, and the money with the mean profits applied according to the will, and that the defect of the surrender of a copyhold estate to the use of the will, might be applied in favour of the charities, or that the whole estate might be so marshalled as would best answer the charitable purposes of the testator. To which Lord Weymouth, (k) Amb. 20, see also Paice v. The Archbishop of Canterbury, 14 Ves. 364, supra; see also Att. Gen. v. Harley, 5 Mad. 321; Waite v. Webb, 6 Ib. 71; also Flint v. Warren, 9 Jur. 420, in which case there was an absolute conversion of the testatrix's real estate into personalty Testamentary within the stat. Money produced by sale of real estate. 3. Vendor's lien for pur. chase money. the testator's heir-at-law, pleaded the Statute of Mortmain. Lord Hardwicke, C., observed, first, upon the true construction of the act of Parliament. "The words of that act import, first, that it shall not be in the power of any person to convey the lands themselves: secondly, that it shall not be in their power to charge or incumber them; and therefore it must be agreed, that no man can charge 1,000l., 500%, or even 100%. on any lands of ever so great value, to any charitable use whatsoever; and the present case is stronger, as it gives the whole residue (after payment of particular legacies, &c.) to a charitable use; not only the gift of lands themselves is made void by the act, but even any charge out of them :" and in the next place, upon the effect of the will, his Lordship said, "I am of opinion, that this is both a devise of the land itself, and a gift of the money (arising by the sale of the land, after payment of particular charges) contrary to the prohibition of the act. 1st. It is a gift of the rents and profits till a sale, and how long it will be before a sale, till what time it will be postponed, nobody knows; no man has a right to compel the trustees to sell, if they pay the debts and legacies, but the charity; and it being a devise of the rents and profits, it is a devise of the lands themselves. Then, as to the devise of the money arising from the sale, I do not think it necessary, in order to determine this question, to say whether it is to be considered as a devise of the land or money; but, whether the surplus is to be taken as money, or land, it is just the same thing. The prohibition is, that no manors, &c., shall be given, &c., by any manner of words, or anyways charged or incumbered by any persons whatsoever; and the subsequent clause makes void all charges and incumbrances for the benefit of a charity. Therefore, if the testator, instead of devising the surplus, had said, I charge my real estate with the payment of 1,000l. to a charity, it would certainly have been void by the express words of this act; and will it not then be extremely absurd to say he shall be able to give his whole real estate to be turned into money, for the benefit of a charity. It is impossible, in my opinion, to say, that such a devise as this can be maintained." 3. Thirdly, the vendor's lien for his purchase money. In Harrison v. Harrison (1) it was decided, that a vendor's lien upon the estate for his purchase money was an interest within the 9 Geo. 2, c. 36, There the testator had entered into a (1) 1 Russ. & Myl. 71. dispositions of 9 Geo. 2, c. 36. contract for sale of part of his real estate, but died before the Testamentary contract was completed, nor had any part of the purchase money within the stat. been paid. By his will the testator gave his personal estate to charitable uses: and a question arose, whether, as the contract was completed after his death, the purchase money passed by Term for years. the will to the charitable use; and Sir John Leach, M. R., held that it did not as being an interest within the statute of 9 Geo. 2, c. 36. 4. Fourthly, terms for years are within the statute. 4. Terms for In Attorney General v. Graves (m), a testator devised the years. residue of his real and personal estate to charitable uses. Part of the residue consisted of a term, not carved out of the inheritance by the testator, but vested in him as lessee. The question was, whether the bequest was within the Statute of Mortmain: and Lord Hardwicke, C., said, "I never was more clear, than that it is both within the intention and words of the statute. The words of the statute, any estate or interest whatsoever,' were insisted to mean only, that a person should not devise his own land for any estate or interest whatsoever. No colour for that construction; these words relate back as well to lands and tenements as to personal estate. The annulling clause, which affords a construction on the other, annuls all estate or interest in lands and tenements, and there is no colour for that distinction on those latter words." 5. Fifthly. Money due on mortgage or mortgaged estates of 5. Mortgages. which the mortgagee is in possession. Thus, in Attorney General v. Meyrick (n), Oliver Jones, being seised in fee of lands, in 1724, mortgaged them to William Edwards, for a sum of money and interest, which not being paid in time, Edwards the son bought an ejectment, obtained judgment, and sued out a writ of habere facias possessionem ; under which being in possession, he made a will in 1744, wherein was this clause; "Whereas I am possessed of certain sums of money due by mortgage and other specialties secured to me on the estate of Oliver Jones, together with other effects, my will is, and I give all the said money in anywise due by mortgage, notes, or assumpsit on the estate of Oliver Jones, whereof I am now possessed by habere facias possessionem, and also all my personal estate, in trust to pay my debts, legacies and funeral expenses; |