funds till laid out in proper purchases of lands, was in one case held within the Act". But in Grayson v. Atkinson, where a testator gave 401. to be applied towards procuring Queen Anne's bounty; and till that could be obtained the interest of the same was to go towards augmenting the curate's salary; though the rule of the commissioners of the bounty was, that if any body will give 2001., they will add 2001. more, the whole to be laid out in land; Lord Hardwicke thought it hard to extend the statute of mortmain to that case; and as the testator had not expressly directed the money to be laid out in land, he would consider it as a legacy of money, and direct it to be laid out in the funds; which, he said, would not prevent the end designed of procuring the Queen's bounty; for the commissioners might, nevertheless, lay out their proportion of the augmentation money in land. The secretary to the commissioners having reported that though the rule was as above stated, yet there was another rule or bye-law-that the donations of testators should have effect. Upon similar principles to those which governed in the last mentioned cases, it has been determined (3) ▾ Ambler, 637. Widmore v. Woodroffe. * 2 Vez. 454. (3) Grimmett v Grimmett, Ambl. 210. Collectanea Juridica, 1 Vol. 454. But in the case of Grieves v. Case, 4 Bro. C. C, 67. Ashhurst and Eyre, Lords Commissioners held that a direction to that, where a man devised money to a charity, and directed it to be laid out in the public funds, till the whole could be laid out in lands to the satisfaction of his trustees, such devise was not within the statute under consideration: for though, if a person directed money to be laid out in lands to a charitable use, it would be void, yet in this case the Court would order the money to be placed in the funds till the purchase was made: and so also where a man gave it in such a manner as that the land to be purchased was the final end of the thing given, yet where there was sufficient room for the Court to say there was a discretionary power in the trustees to lay out the money one way or another, either in the funds or in lands, such devise ought to be held good upon the smae principle on which the case of Soresby . Hollins was decided. Here the direction was to lay out the money in the funds until it could be laid out in lands to the satisfaction of the trustees. When could that be? Not while the statute of 9 Geo. 2. was in force. To do so would be to act in opposition to their trust. And in a late case in the King's Bench where there was a devise to trustees, of land to be applied by them and their successors, and the ministers for the time being of a Methodist congregation, as they should from time to time think fit; it place money at interest, until an eligible purchase of land could be made, was holden to be within the statute. And they observed that Grimmett v. Grimmett, turned upon a very nice criticism of the expression. was clearly held not within the statute, and that the trustees might recover at law, however the Court of Chancery might afterwards direct the application of the fund'. the support or repair of what is already in mort. main, good. To support that which at the time of the will was A devise for in mortmain, having been originally given before the statute, is held to be a legitimate object of a will; as where a bequest was made of 2001. to repair a free chapel; but ground cannot be purchased for the purpose of erection. It has also been decided that where previous to the statute a testator devised the whole profits of an estate to a charity, if the rents at any time after the statute should be increased, they must go to the increase of the charity". But in a case where money was given to build a church where a chapel stood, and the Bishop dissented, the same favouring maxims which seem to have prevailed in many other cases where the object has failed, were not adopted by Sir Lloyd Kenyon, Master of the Rolls, who refused to apply the money towards repairing, or otherwise, saying that the intention must be implicitly followed, or nothing could y 6 East, 328, Doe on dem. Toone and West v. Copestake. z Ambl. 651, Harris v. Barnes, same v. Nash. a Ambl. 751. Att. Gen. v. Hyde. 3 Bro. C. C. 588. Ambl. 190, Att. Gen. v. Johnson. Ambl. 201. Same Sparks, and see 7 Vez. Jun. 340. c 1 Bro. C. C. 444. Att. Gen. v. Bishop of Oxford. See also 2 Bro. C. C. 428. shalled in favour of a charity. be done. And in the case of Mog v. the President of Bath Hospital, though Lord Hardwicke said, that since the statute of mortmain, 9. Geo. 2. c. 36. he had endeavoured to give charitable legacies effect as far as he could (4); yet he would not set up new rules Assets not mar to avoid that statute. And his Lordship refused to marshal assets in favour of a charity, or in other words, to throw the debts and legacies on the real estate, in order that the personal estate might be applied to the charitable use. And though in the Attorney General v. Caldwell', where a testator willed the residue of his personal estate consisting of his effects, annuities, mortgages, bonds, and notes, to be sold, and the produce given to a charity, the devise of the mortgages being void, the court ordered them, as being part of the residue only, to be first applied in payment of debts, so as to leave a larger fund for the charity, yet Sir Lloyd Kenyon, in a subsequent case declared he could not recognize the distinction between a specific gift of a mort 42 Vez. 52. • 2 Vez. 52. Ambl. 614. 4 Bro. C. C. 153. (4) Where a sum of money was left towards establishing a school, Lord Loughborough thought that though under this disposition he could not direct any part to be laid out in land or building, yet the master might teach in his own house or in the church. And he ordered a scheme to be laid before the Master in Chancery, which would not include the application of any part of the dividends to the purchase or renting of land. 4 Bro. C. C. 526. Att. Gen, v. Williams. gage, and a gift of a residue in which it is comprized. In both cases it was an interest in land which could not pass by the statute, but must go in favour of the parties legally intitled to the benefit of it. And he ordered the debts, legacies, and costs of the suit, to be paid out of the testator's general personal estate, and out of the monies secured upon mortgage pro rata, and the residue of the mortgages to go to the next of kin. But It never has been doubted since the statute of Geo. 2. that a plain direction in a will to purchase land for a charitable use is void by the statute. a bequest of money to be laid out in repairing what was already in mortmain, or even in building upon land already consecrated and appropriated, as in or towards re-building a church or a parsonage-house, has been determined to be clear of the statute above-mentioned ". And it seems that if a bequest Where the mode of money be made, to be disposed of to a charitable of disposition is use, leaving the mode of disposition undefined, there seems a purchase is nothing in the statute to restrain the trustees from for value by the laying out the money in the purchase of land, since by the 2nd section of the last-mentioned statute, purchases for valuable consideration are expressly saved. But if there is occasion for coming into a Court of Equity for direction, that Court will not direct a purchase of land. Lord Hardwicke's opinion, * 2 Vez. 189. 1 Bro. C. C. 444. N. Brodie v. the Duke of Chandos. undefined, it may be made trustees. |