charity not within the stat. Testamentary examining the case of Oliphant v. Hendrie, in the Register's dispositions to book, there appears to be nothing special in it. The testator gave a sum of money, to be laid out in heritable securities in Scotland, for charitable purposes; and Lord Thurlow's decree was that the legacy was good. This is a direct decision upon the point, and if I had more doubt upon it, that authority binds me to determine, that it is a good bequest.' of 9 Geo. 2, c. 36. But where the testator directs lands to be purchased generally, and does not confine the purchase to lands in Scotland, or leave such purchase at the discretion of his trustees there, although the charitable purpose is exclusively for objects in Scotland, the general direction to purchase brings it within the Mortmain Act, the testator not manifesting any intention that the purchase should be of land in Scotland. This occurred in Attorney General v. Mill (1), wherein the testator, a native of Montrose, when attacked by sudden illness on a journey to London, made a will in the English form, whereby he gave all his residuary real and personal estate to four trustees, upon trust to invest such part of his estate as should not consist of real estate in the purchase of lands or rents of inheritance in fee simple; such purchases to be made in the names of his trustees or the survivors or survivor of them; and by them, in due and legal form, conveyed from time to time with such parts of his real estate, as might not be disposed of for the purposes of his will, to other trustees and their heirs, so as to preserve a perpetual succession for the purposes mentioned in a certain instrument executed by the testator of even date with his will. The object of the instrument referred to, and which was executed by the testator and attested by two witnesses, was, that the trustees of his will should pay from time to time the yearly rents of his estates to trustees named in the deed, some of whom were not trustees in the will, to be applied by the latter trustees towards the relief and comfort of indigent ladies residing in Montrose. The deed also provided, that the trustees thereof should reside at or within twenty miles of Montrose. By a third codicil, the testator mentioning the death of one of his executors and trustees, gave and bequeathed all the residue of his personal estate, not before bequeathed by his will and former codicils, to John Mill and George Gavin Brown, equally; and appointed them executors, confirming the appointment in his will of his surviving trustees therein named. Lord Lyndhurst, C., decided that the bequest (1)3 Russ. 328. of 9 Geo. 2, c. 36. was within the Mortmain Act, observing, "If it was the intention Testamentary of the testator to give the trustees power to lay out the residue dispositions to charity not of his personal estate in the purchase of lands either in Scotland within the stat. or England, the gift to charity will be good; and it is perfectly clear that it is not necessary that the testator should have expressed, in positive and distinct terms, that the trustees were to have that option. If I could collect from any part of the will that it was his meaning or in his contemplation, that his trustees should have an option of buying lands and rents of inheritance, either in Scotland or in England, I should give effect to his intention." 7. The act under consideration is local, and therefore does not 7. Real estate in Ireland. extend to dispositions of real estate in Ireland, as stated by Lord Loughborough in Campbell v. Lord Radnor (m), and which form a further exception. But, though bequests of personal estates derived from England to be laid out in lands in Scotland or Ireland for charitable uses, are within the above exceptions of the act, yet bequests of the produce of real estate in England for those purposes are within the general operation of the act, and void. This was settled in the case of Curtis v. Hutton (n), the facts of which are stated in a former chapter (o), and to which the reader is referred. The judgment of the Master of the Rolls, so far as relates to the present point, was as follows: "The statute (p) contains no express words prohibiting a bequest of money, to be produced by the sale of land, for charitable purposes; but it is settled by construction, that such a bequest is within the spirit and meaning of the law; and it is clear, that no charity in England, not within the exception of the statute, could have derived any benefit from the produce of the real estate. The question then is, whether such produce may be given to what in contemplation of the English law is for a charitable purpose; when that purpose is to be carried into execution in another country. The validity of every disposition of real estate must depend upon the law of the country in which that estate is situated. The subject of this statute is real estate in England. The owners of such property are disabled from disposing of it to any charitable use, except by deed, executed twelve months before the death of the owner, &c., to take effect from the execution. The words are perfectly general, any charitable use (m) 1 Bro. C. C. 271. (0) Ch. 15, p. 988. dispositions to Testamentary whatsoever;' and the object could not be to treat English charities less favourably than charities to take effect for the benefit of other countries. It would be somewhat incongruous to refuse to permit such a disposition for the most laudable and meritorious charitable institution in England; but if the party chose to carry this benevolent intention beyond England, to permit him to do so, to the effect of disinheriting his heirs in his last moments. The disinheriting of the lawful heirs by languishing or dying persons, which is treated by the statute as a mischief, cannot be less so, when the effect is to carry the property out of England. Therefore, neither the words of this statute, nor the presumable intention, warrant me in declaring, that it is to be confined to charitable purposes to be carried into execution in England. The statute not containing an exception in favour of the universities of Scotland, as it does with regard to the universities of England, I must consider this as a charitable disposition, by which nothing that is the produce of the testator's real estate can pass." 8. Real estate in the West Indies and 8. Dispositions of real estate in the West Indies, or the other colonies, form a further exception. This appears from the case other colonies. of Attorney General v. Stewart (q). In that case, James Wilson, by will dated in 1799, directed his executors to dispose of all his property (consisting of real and personal estate) at Grenada, the produce to be remitted to the magistrates of Banff, in North Britain, to be laid out by them as a charitable fund in the best manner possible, and to remain under the directions of the acting magistrates from year to year. Upon the question, whether the Statute of Mortmain was in force in the Island of Grenada, on an exception to the Master's report, who had stated, after some doubt, his opinion in the affirmative; Sir William Grant, M. R., said, that it depended on the consideration, whether it be a law of local policy, adapted solely to the country in which it was made, or a general regulation of property, equally applicable to any country, in which it is by the rules of the English law that property is governed. He conceived that the object of the Statute of Mortmain was wholly political, that it grew out of local circumstances, and was meant to have merely a local operation: and at the close of his very luminous judgment, observed, "Framed as the Mortmain Act is, I think it quite inapplicable to Grenada or to any other colony. In its causes, its objects, its provisions, its qualifications, and its exceptions, it is a law wholly (q) 2 Mer. 143. English, calculated for purposes of local policy, complicated with Testamentary local establishments, and incapable, without great incongruity in dispositions to charity not the effect, of being transferred as it stands into the code of any within the stat. other country. I am of opinion, therefore, that it constitutes no c. 36. part of the law of the Island of Grenada, and that the exception must consequently be allowed." In Mitford v. Reynolds (r) the testator gave the remainder of his property to the government of Bengal, to be applied to charitable, beneficial, and public works, at and in the city of Dacca in Bengal, for the exclusive benefit of the native inhabitants, in such manner as they and the government might regard as most conducive to that end. Lord Cottenham, C., after observing, that he collected the meaning of the testator to be, that something should be constructed or established for the benefit of the native inhabitants of Dacca, held the bequest valid, observing, that it was unnecessary for him to advert to the question as to the Statute of Mortmain, because he agreed in what was stated in the case of The Mayor of Lyons v. The East India Company (s). 9. A further exception out of the operation of the statute is made in favour of bequests of money, to be applied simply in the melioration of lands in mortmain, or for building upon them: and the reason is, that such dispositions are not within the intent and meaning of the statute, the object of which is to prevent any addition to the quantity of land already in mortmain, and not to impede their melioration or improvement. Thus, in the case of Glubb v. Attorney General (t), wherein Thomas Munday bequeathed 4007. and 1007. to trustees, to be laid out in building a parsonage house on the glebe of Bickton. On a bill filed by the rector to have the money laid out, the question arose whether the devise was void as within the Statute of Mortmain? and Sir Thomas Clarke, M. R., determined that it was not. The statute, he said, was intended to prevent new acquisitions in mortmain, and that erecting or building was not to be considered as such. Had the testator not made the devise in question, he might have been sued for dilapidations, and the money recovered would have been laid out upon the building; and he decreed the money to be laid out. (r) 1 Phil. 185, 192. (8) 1 Moore's Privy Counc. Ca. 175, 276, &c.; see also Att. Gen. v. Stewart, 2 Mer. 161, per M. R. of 9 Geo. 2, c. Testamentary dispositions to within the stat. charity not of 9 Geo. 2, c. 36. Money to be applied in meliorating lands in mortmain. Again, in the case of Harris v. Barnes (u), Doctor Conings bequeathed 2007. to the defendant Stone, to be laid out in repairing the free chapel of Grendon Court, part of his estate: and the Lord Chancellor was clearly of opinion, that the legacy was not within the letter or meaning of the Statute of Mortmain; the words of which were, "to be laid out in purchase of lands, &c. ;" and the meaning and intention of which were, to prevent the increase of lands, in mortmain, beyond what was so at the time the act was made. That the legacy was only to support that which was in mortmain at the time of the will. Again, in Brodie v. Duke of Chandos (v), Ann Thistlewaite bequeathed to trustees all her ready money, subject to debts, to lay it out in the erecting and new building of a neat parsonage house," which, her will was, should be erected at the upper end of the garden belonging to the said parsonage house," to be enjoyed by the then present and other future incumbents. The question was, whether the bequest was within the meaning of the statute; and the Lord Chancellor decreed in favour of the charity, as no land was to be purchased. So, in Attorney General v. Bishop of Chester (w), Archbishop Secker bequeathed 1,000l. to be laid out upon repairing parsonage houses; and Lord Thurlow, C., directed a reference to the Master, that proposals of proper objects might be laid before him. So also, in the case of Attorney General v. Parsons (x), Edward Tawney, by indenture of bargain and sale, duly executed and inrolled, conveyed to the mayor, bailiffs, &c., of the city of Oxford, two freehold messuages, &c., in the suburbs of the said city, in trust, to permit three poor men and three poor women to be nominated by him during life, and after his death by such person or persons in such manner, &c., as he had, or should, by any deed in writing, or by his will or codicil, appoint. By his will he gave to the mayor, &c., 4,000l. three per cent. consols, upon trust to pay the dividends as follows; 207. a year each, by equal half-yearly payments, to three poor men and three poor women of the city of Oxford, or the suburbs thereof, for ever, for their lives; and subject thereto, in trust to lay out, as occasion should require, the remainder of the dividends, at such times and in such manner as his trustees should direct, in rebuilding, repairing, altering or adding to and improving, the messuages or (u) Amb. 651. (v) 1 Bro. C. C. 444, note.. (w) 1 Bro. C. C. 444. |