within the stat. claim the whole fund as overplus, if the fund were not required Testamentary for discharging the debt. Sir Lancelot Shadwell, V. C., decided dispositions that the bequest was void as within the statute; with respect to of 9 Geo. 2, which there was no substantial difference between a legal and equitable mortgage, and that the option was given only in the Money to exevent of there being no debt on the meeting-house. c. 30. onerate lands in mortmain. cured on turn 7. So also in the seventh place, money secured on turnpike tolls 7. Money seis within the statute as mentioned in the preceding case of Corbyn pike-tolls. v. French. Thus, in Knapp v. Williams (v), the defendants were governors of the charity for the relief of the poor widows and children of clergymen; and claimed a mortgage for 500l. upon the tolls arising under certain Acts of Parliament, for the repair of the Brentford turnpike road. The security was taken upon the tolls simply; not including the toll-houses and gates. Lord Loughborough, C., in deciding against the claim of the defendants, said: "It occurred to me, that it had been determined that a mortgage of turnpike tolls is within the statute. The mortgagee would have a right to come into this Court to have an account, and a receiver appointed. He would have a right by the aid of this Court to have the tolls specifically applied to his mortgage. Consider what the point of law is, from the nature of the interest. It is not at all within the mischief: but the consequences would open a much larger field for charitable donations. From the nature of the interest created by the Act, these tolls granted in perpetuity are certainly an hereditament: it is in its nature an interest affecting land. He might bring an assize for these tolls, I should think." shares. 8. So eighthly, navigation shares in canals and rivers being 8. Canal and real estate (w), are also within the statute. In the original decree navigation in the case of Howse v. Chapman (x), stated for other points on a former page (y), part of the residue of the testator's property directed to be sold and applied for charitable purposes, consisted of a share in the Bath navigation, and the Lord Chancellor held that the devise was void, and the heir-at-law was entitled to the share. (v) 4 Ves. 430, note. 652. (x) 4 Ves. 544. (y) Pages 986, and 1116. 9. So ninthly, a bequest of Thus, in the case of Finch v. Squire (z), a testator, by will executed according to the Statute of Frauds, bequeathed the residue of his personal estate, in certain events (which happened) to the defendant Squire, upon trust to pay the same to the treasurer for the Society for promoting Christian Knowledge. Under a decree in the cause for an account of the personal estate of the testator, it appeared by the Master's report, that part of the personal estate was lent upon security of the poor rates and county rates for building a goal, under Acts of Parliament, giving authority to borrow money, and assign the rates for that purpose. The plaintiff, the treasurer of that society, claimed the money so lent upon the poor rates: for whom it was insisted, they could not be considered a security upon land, or within the mischief of the Act of 9 Geo. 2, c. 36; as they were only a personal aid, and the county rates only a part of the poor rates, the remedy for which was a warrant of summons followed by distress, clearly a personal remedy: and they distinguished them from the case of tolls (a); but Sir William Grant, Master of the Rolls, decided in favour of the next of kin ;. observing, "There is no solid distinction between money borrowed upon such a security as this, and money borrowed upon turnpike tolls. It is difficult to shew, that a charity, by taking money borrowed upon the latter security, takes any interest in land. Those tolls are duties imposed by Act of Parliament upon passengers, in respect of their passage along the road. The right to collect these tolls gives no direct interest in the land itself, though an interest in duties arising in consequence of a passage along or through the land. The poorrates are made payable by those who are occupiers of lands, tenements and hereditaments; if a man is not occupier of lands, he pays nothing, unless he has other property: but if he has only land, he pays in respect of that. A very nice distinction was taken for the plaintiffs, that the public make him contribute, as having the land, not on account of the use of the land. distinction is not very perceptible. In the one case, the public call for the duty on account of the passage along the land, that it may be laid out for the purpose of public advantage, the repairs of roads, and facilitating communication: in the other case, they actually burthen the lands, by burthening the occupier with the (*) 10 Ves. 41. That (a) Knapp v. Williams, last page. within the stat. c. 36. debts. duty, for other public purposes of convenience and advantage. Testamentary It is true, they are not raised out of the land only: but by far dispositions the greatest part is raised out of the land; for the land pays so of 9 Geo. 2, much rent in consequence of the occupier being liable to the poor rates: otherwise the landlord would have more rent. So all that Judgment is paid in respect of the land, is got from the land, as much as rent arises out of the land itself. It is more properly to be said to arise out of the land, because it is in respect of the occupation, than the tolls for the mere privilege of passing. As to that part of the poor rates, that is raised out of the personal property, it cannot be distinguished; I cannot divide and apportion the security; that so much is to be imputed to the produce of land; and so much is from personal property. I must take the whole. They are so blended, that it is impossible to distinguish them. If the consequence of their holding this security would be, that something real would go to the charity, it must fail altogether. That is the necessary consequence; for it must be the security as it stands; that is, such a security as charges the poor rates in the mode and manner in which they are collected. Therefore these securities cannot pass to the charity." 10. So in the tenth place, a judgment debt due to the testator, 10. Judgment which in his lifetime had been reported in a creditor's suit to be debts. an incumbrance affecting the real estate of the debtor, is within the statute 9 Geo. 2, c. 36. Thus, in Collinson v. Pater (b), the testator bequeathed all the residue of his personal estate to trustees upon trust to convert the same into money, and invest the produce in Government. securities, and apply the annual produce upon certain charitable. purposes. Part of the testator's residuary estate consisted of a judgment debt, which was paid out of the proceeds of the sale of the debtor's real estates, his personal estate being insufficient: the question was, whether the gift to charitable purposes was not void so far as respected the judgment, and Sir John Leach, M. R., decided in the affirmative. 11. Another instance of property within the 9 Geo. 2, c. 36, which shews the inclination of the Courts to carry out the intention of the act to its very letter, is the profits arising from mooring chains in the river Thames. This was decided in Negus v. Coulter (c), where the testator 11. Profits chains in the from mooring Thames. (b) 2 Russ. & M. 344. (c) Amb. 367. VOL. II. Ο Testamentary 12. Where a bequest to par ticular objects in the first in stance, is attended with an ultimate charitable disposition within the statute. 1. Where the two objects are not inseparably blended. being possessed of a lease for years from the Crown, of the right to lay chains in the river Thames, between Buchy's Hole and London Bridge, for mooring of ships, and of all profits arising therefrom, by his will devised the same to charitable uses, &c. Sir Thomas Clarke, M. R., held the gift within the statute, it being an interest in the inheritance, and as much a franchise as a market, which might be in other persons than the owners of the soil. 12. In this place it will be proper to direct the reader's attention to the following rule of construction; that, where a testator mentions particular objects in his will, which are in the first instance to enjoy the benefit of a bequest, intended ultimately as a general charity, and which objects appear to be more immediately within his view or intention, in such a case the Court will support the disposition in favour of the persons described, though it fail as a general charitable disposition within the Statute of Mortmain. 1. Where the two objects are not inseparably blended, Thus, in Blandford v. Fackerell (c), Edward Fackerell, after providing by his will for a weekly payment of four shillings to his cousin, James Fackerell, gave all his real estate to trustees, in trust to sell, and the money arising from such sale, and from the sale of his personal estate, to be laid out in 31. per cent. consols; the dividends to be first applied in payment of the annuities, and the weekly sums given by his will, and then to apply the residue according to a direction of the testator in his will; which was, "I do hereby direct, that, as soon as conveniently may be after my decease, a proper and commodious house in the town of Bridgewater, shall be taken by my trustees on lease or otherwise, at such yearly rent as shall be agreed upon, and fitted up for a school, for the reception and education of the children and grandchildren of my relations, (naming them), as they shall respectively attain their ages of seven years; I will and direct, that my said trustees shall place and clothe in the school, &c. until their age of fourteen years, and then to put them apprentices, &c.; and that my said trustees shall also admit and take into the said school, such number of boys and girls (the boys being two to one of the girls), as the yearly income of my trust stock will be sufficient to educate, after payment of rent, &c., (c) 4 Bro. C. C. 394. dispositions c. 36. the salary of masters and mistresses, and other purposes there Testamentary mentioned." He then gave several regulations for the charity, within the stat. and made the trustees executors. The question was, whether of 9 Geo. 2, this charitable disposition was totally, or in what degree, void by the Statute of Mortmain: and the Lord Chancellor said, "The Where particular purpose first object of the testator is to give education to these children and general charity and grandchildren, and then that a benefit should arise to others blended. from his bounty. I can only devise a plan for the education of the objects of his bounty, and direct an inquiry who are such: as far as it tends to establish a charity for general purposes, it is void by the Statute of Mortmain." So also, in Doe v. Aldridge (d), William Phillips devised as follows: "To the Rev. A. Aldridge, late of Amesbury, in Wiltshire, but now preacher at the meeting-house, in Lyndhurst, all, &c., (describing the premises), to hold to him for life only, upon this express condition, that he do and shall, without delay, after my decease, settle and convey the same to trustees, to take place at his decease, for the use and support of the preaching of the Word of God, at the meeting house at Lyndhurst aforesaid, for ever; and in case such preaching should be discontinued, I direct the same to be applied towards a school for teaching the poor children of Lyndhurst aforesaid, for ever: and I do hereby give unto the said A. Aldridge, full and absolute power and authority to settle the same accordingly." Then followed a bequest of money in the funds to the same uses; legacies of 100% to the defendant and the other executor, for their trouble in executing the will; and a bequest of the furniture in the house in question to the defendant for life, with a direction to settle the same to the use of the succeeding ministers, to go as heir looms: and besides some other legacies, the will contained the following clauses: "And I further expect that he (the defendant) will, with the help of God, after my decease, without delay, settle and forward every thing in his power, to promote and carry on the work of God, at Lyndhurst aforesaid, both in his lifetime and after his decease." "And, if it should so happen that I have not left any of the aforesaid legacies in a lawful and legal manner, to prevent any advantage being taken thereof, I do hereby give, devise, and bequeath such legacy or legacies unto the said W. Downer, and A. Aldridge, in trust, to be disposed of by them at their discretion for ever." The Court thought the point too clear for discussion. For that, though the subsequent limitation (d) 4 T. R. 264. |