QlornfU Ham ^rl|nol ICtbrary HJaratjall lEqmtg QJoUerttott (Sift of iE. 3. iiarsbaU. ^■^- ^. 1894 3 1924 084 250 533 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084250533 ( 4 y^^ iVrvA^. /^ t^^y^w THE MORTMAm AND CHARITABLE USES ACT, 1891. \ 19-^.? / ■-.. C A TEEATISE ON THE MORTMAIN AND CHARITABLE USES ACT, 1891. LEONARD SYER BRISTOWE, M.A. Oxon. BAERISTEB-AT-LAW ; DRAFTSMijr OF THE ACT, AlfD JOINT AUTHOR OF "THE LAW OF CHARITIES AND MORTltfAIN" (tITDOR'S CHARIT. TRUSTS). LONDON: REEVES & TURNEB, 100 CHANCERY LANE & CAREY STREET. 1891. (o^U ^ HERBERT H. OOZENS-HARDY, Esq., Q.C, M.P. TO "WHOSE SKILL AND ENEEGY THE PASSING OF THE MOETMAIN AND CHARITABLE USES ACT, 1891, WAS MAINLY HUE, THIS BOOK IS 3Respect(ulIs SBctticateli PREFACE. The Mortmain and OHaritable Uses Act, 1891, effects a revolution in the law relating to charitable gifts. The present work is an attempt to elucidate its provisions. It is prefaced by an Introduction dealing with the history of the subject and the principles upon which the new Act proceeds. The Mortmain and Charitable Uses Act, 1888, is added as an Appendix. The book, although independent of, supplements and completes, the " Law of Charities and Mortmain," referred in the following pages as "Tudor's Charit. Trusts.'' The two together cover the whole law of charities. I gratefully acknowledge the assistance of my friend, Mr. W. Ivimey Cook, of the Equity Bar, in the passage of the work through the press. L. S. B. 1 New Square, Lincoln's Inn, Xovember, 1891. TABLE OF CONTENTS. INTRODUCTION. PAGES HiSTOBY, Character and Operation of 9 Geo. II. c. 3G . 1-19 Principles and General Effect of the New Act . . 19-20 Mortmain and Charitable Uses Act, 1891. (54 (fe 55 Vict. c. 73.) SECT, 1. Short Title 27 Former restrictions on charit. assurances . . . 27-2'.i General effect of Act . 29-30 2. Extent op Act BO Scotland and Ireland . . . 30, 31 3. Definition of "Land" .... . 31 Previous definitions . . . . . . • 81, 32 Property within definition .... .32-52 Administration 52-5.5 4. Meaning of "Assurance" 55 5. Land Assured by Will fob a Charitable Purpose to be Sold 55 Old law 55, 50 Precatory and secret trusts . , 56-58 Corporations 58-01 Sale .... Application of proceeds 01-65 05-72 X TABLE OF CONTENTS. ^ECr. PAGIS 0. Land after Expiration op Time limited fob Sale TO BE Sold by Oedbb op Charity Commis- sioners 72, 73 Powers of trustees 73-75 Powers of Charity Commiss 75, 7(5 Position of purchaser 76-78 OiBcial trustees, &o, . 78-80 7. Personal Estate by Will directed to be laid out in Land, not to be so laid out . . 81 Effect of sect 81, 82 Direction to lay out in land ...... 82-90 Application of legacy 90, 91 8. Power to retain Land in Certain Oases . . . 91-93 !). Application op Act 93 1(1. Saving ... 93 Exemptions from Mortm. and Charit. Uses Act, 1888 . 93-101 APPENDIX. Mortmain and Charitable Uses Act, 1888. (51 & 62 Vict. c. 42.) PART I. — MORTMAIN. 1. Forfeiture on Unlawful Assurance, or Acquisition in Mortmain 103, 104 2. -Power to Her Majesty to grant Licences in Mort- main 104 3. Saving for Rents and Services 104 PART II.— CHARITABLE USES. 4. Conditions under which Assurances may be made to Charitable Uses 104-100 5. Power to remedy Omission to Enrol within Requi- site Time 106 TABLE OF CONTENTS. XI PART III.— EXEMPTIONS. ti. Assurances for a Public Park, Elementary School, OR Public Museum 107, 108 7. Assurances for certain Universities, Colleges and Societies 108 8. Substitution op Provisions of Act for correspond- ing Repealed Enactments 108 PART IV.— SUPPLEMENTAL. 9. Adaptation op Law to system op Land Registration 108, 109 10. Definitions . . . . 109 11. Extent of Act . • 109 12. Savings for Existing Customs, &c, . 109 13. Repeal . . . ■ 109, 110 14. Short Title no Schedule . HI. 112 Index . 113 ei seg. TABLE OF CASES. Adams, Re, Haile v. Adams, 87 Addlington v. Cann, 56, 57 Adnam v. Cole, SG Adolph v. Dolman, ije Fitzgerald, 53 Alexander v. Brame, 39, 42 Anon, 59 Arnold, Re, Eavenscroft v. Workman, 53 Arnold v. Chapman, 34, 39, 52, 56 Ashton V. Langda'e, Lord, 42, 46, 47 Ashworth v. Munn, 33, 37, 41 Aspinall v. Bourne, 37 Aston V. Wood, 81 Att.-Gen. v. Boucherett, 68 Att.-Gen. l\ Boultbee, 67, 68 Att.-Gen. v. Bowles, 84, 87 Att.-Gen. v. Brandreth, 71 Att.-Gen. y. Bunce, 67 Att.-Gen. v. Caldwell, 39 Att.-Gen. V. Chester, Bishop of, 84 Att.-Gen. v. Coopers' Co., 69 Att.-Gen. v. Daugars, 66 Att.-Gen. v. Davies, 57, 83, S5, 86, 90 Att.-Gen. v. Day, 4, 5, 12 Att.-Gen. v. Dixie, 68 Att.-Gen. v. Flood, 30 Att.-Gen. v. Giles, 15, 52 Alt. -Gen. v. Glyn, 66 Att.-Gen. v. Goddard, 86, 88 Att.-Gen. v. Goulding, 90 Att.-Gen. c. Graves, 34, 38 Att.-Gen. v. Haberdashers' Co., 71 Att.-Gen. v. Hankey, 67, 68 Att.-Gen. v. Harley, 36, 39, 40, 52 Att.-Gen. u. Heartwell, 82 Att.-Gen. v. Hicks, 66 Att.-Gin. V. Highgate School Wardens, &c. of, 92 Att.-Gen. v. Hinxman, 90 Att.-Gen. v. Hodgson, 84, 90 Att.-Gen. v. Hnll, 83 Att.-Gen. v. Hurst, 39, 52 Att.-Gen. v. Hyde, 85, 87 Att.-Gen. v Ironmongers' Co., 66, 6'^ Att.-Gen. v. .Jones, 13, 41, 42 Att.-Gen. v. Kell, 69 Att.-Gen. u. London, City of, 68 Att.-Gen. v. Mansfield, Earl of, 71, 92 Att.-Gen. v. Meyrick, 39, 42, 43 Att.-Gen. v. Munby, 84, 94 Att.-Gen. /.. Nash, 83, 87 Att.-Gen. v. Oglander, 66 Att.-Gen. v. Oxford, Bishop of, 84 Att.-Gen. v. Painters' Co., 67 Att.-Gen. v. Parsons, 83, 84, 88 Att.-Gen. «. Power, 30 Att.-Gen. v. Ruper, 58 Att.-Gen. v, Sherborne Grammar School, 68 Att.-Gen. v. Solly, 71 Att.-Gen. v. Southgate, 53 Att.-Gen. v. Stepney, 67 Att.-Gen. ,-. Stewart, 67 Att.-Gen. o. Tancred, 94 Att.-Gen. v. Tomkins, 34, 52 Att.-Gen. v. Tyndall, 52, 83, 87 Att.-Gen. v. Vivian, 69 Afr.-Gen. v. Weymouth, Lord, 3, 34, 35 Att.-Gen. v. Whitchurch, 67, 90 Att.-Gen. v. Whileley, 68 Att.-Gen. v. Whorwood, 94 Att.-Gen. u. Williams, 83, 85 Att.-Gen. v. Wilson, 92 Att.-Gen. v. Winchelsea, Earl of, 39, 52 Attree r. Hawe, 21, 47, 48, 49 Aiibin -0. Daly, 38 XIV TABLE OF CASES. B. Baker v. Sutton, 30, 81 Baldwin v. Baldwin, 57, 86, 88, 98 Banister's Case, 58 Baxter v. Brown, 41 Beaumont v. Oliveira, 53 Beaumont's Trusts, lie, 88 Bedford v. Teale, He Thompson 15, 44, 48, 49, 50, 51 Bennet College r. London, Bishop of, 59 Bifcoe V. tJacksoD, 67, 68, 84 Blaiin V. Bell, 52 Booth V. Carter, 87 Boson V. Statham, 57 Boxley's Case, Abbott of, 59 Bradley, Me, Oldershaw v. Governesses' Benevolent Institution, 99 Braund v. Devon, Earl of, 70 Bristol, Major of, v. Whitton, 59 British Museum, Trustees of, v. M^hite, 35, 100 Brodie v. Chandos, Duke of, 84 Brook V. Badley, 33, 35, 36, 37, 38, 40 Brown, He, 56 Browne v. Barasden, 34 Buckeridge v. Ingram, 43, 46 Buckley v. Eoyal National Lifeboat Institution, He David, 13, 15, 41, 42 Bunting v. Marriott, 43, 66, 68, 82, 90 Bunting v. Sargent, 34 Buir r. Miller, 38 c. Cadbury r. Smith, 37 Campbell v. Eadnor, Earl of, 30 Canipden Charities, Me, 69 Carter v. Green, 88, 89 Gary v. Abbot, 67 Cawood V. Thompson, 84 Chamberlayne v. Brockett, 85 Champney v. Davy, 56, 96, 97 Chandler v. Howell, 48, 49 Chapman v. Brown, 56, 83, 90 Chester v. Chester, 39, 52, 95 Chiist's Hospital, Exparte Governors of, 92 Christmap, Me, Martin v. Lacon, 15, 41, 42, 43, 44 Chiu'ch Building Society v. Barlow, 89 Clancy, Me, 84 Clements v. Ward, Be Smith's Estate, 97 Clephane v. Edinburgh, Lord Provost of, 68 Clergy Society, Me, 68 Cluff K. CInff, 15, 51 Coates V. Mackillop, Me Holbume, 87, 89 CoUinson v. Pater, 40 CoUison's Case, 59 Colston's Hospital, Me, 92 Cook V. Duckenfield, 67 Cope V. Bedford, 59 Corbyn v. French, 81, 82 Comford v. Elliott, Me Watts, 33, 37, 38, 40, 44 Cotton's Case, 59 Cox, Me, Cox V. Davie, 83, 85, 87, 90 Crafton v. Frith, 85 Cramp v. Playfoot, 56, 90 Ci'esBwell V. Cresswell, 85 Currie v. Pye, 39, 52 Curtis V. Hutton, 52, 88 D. Daly V. Att.-Gen., 68 Davall V. New Kiver Co., 46 Davenport v. Mortimer, 85, 89 David, Me, Buckley v. Koyal National Lifeboat Institution, 13, 15, 41, 42 Davies v. Hopkins, 82 Dent V. AUcroft, 84, 88 Denton v. Manners, Lord John, 38, 89 De Eosaz, Me, Eymer v. De Eosaz, 87 Dixon V. Butler, 86, 97 Doe V. Han-is, 56 Doe V. Pitcher, 56, 86 Doe V. Walerton, 34 Doe V. Wrighte, 56, 57 Drybutter v. Bartholomew, 46 Dunn V. Bownas, 84, 86, 87, 90 Durour v. Motteaux, 52 E. Edwards v. Hall 35, 39, 45, 46 83, 85. 87, 88 Edwards v. Pike, 57 Emley v. Davidson, Me Eobson, 40, 58, TABLE OF CASES. XV English c. Orde, 80 Entwistle v. Davis, 46 Faversiiam, Mayor of, v. Eyder, 88 Fincli V. Squire, 13, 43, 44 Fifher v. Brierley, 84, 85, 97 Fisher v. Jackson, 77 Fitzgerald, He, Adolpli v. Dolman, 53 Flood's Case, 59 Forbes v. Steven, 41 Foster r. Blagden, 52 Fourdrin v. Gowdey, 52 Fox V. Lownds, 40, 68 Foy V. Foy, 83 G. Gauge, Be, Mummery v. Gauge, 14, 15 44 Gardner v. L. C. & D. Ry. Co., 47, 4S Gibbs V. Eumsey, 85, 56 Giblett r. Hobsou, 83, 85, 87 Girdlestone v. Creed, 97 Glasgow College c. Att.-Gen., 68, 90 Glubb V. Att.-Gen., 84 Goldsmith, He, Mocatta (. Att.-Gen., 84 Graham v. Paternoster, 88 Graveuor v. Hallum, 56 Green i: Britten, 90 Grieves v. Case, 86 Grimmett r. Grimmett, 86 H. Hallet, Me, Howarth i. Massey, 14, 15, 44, 49 Harle v. Adams, Be Adams, 87 Harris, Be, Jacson v. Queen Anne's Bounty, Governors of, 14, 4-3 Harris v. Bames, 84 Harrison v. Harrison, 39 Harrison v. Southampton, Corporation of, 95 Hartshome v. Nicholson, 85 Hatton, Be, Robson r. Gibbs, 48, 50, 53 Hawkin's Trusts, Be, 85 Hawkins v. Allen, 83 Hayter v. Tucker, 46 Hedgman, Be, Morley r. Croxon, 84, 87, 88, 89 Hemming v. Brabason, 59 Henchman v. Att.-Gen., 58 Hendry, Be, "Watson v. Blakeney, 97 Henshaw v. Atkinson, 84 Hill V. Jones, 85 Hill's Trusts, Be, 37, 38 Hilton V, Giraud, 45 Hobson V. Blackburn, 52 Holburne, Be, C'oates r. Mackillop, 87, 89 Holdsworth v. Davenport, 47, 48 Holme V. Guy, 77 Holmes, Be, Holmes v. Holmes, 15, 50 Honnor's Trust, Be, 92 Hopkins v. Phillips, 84 Howarth v. Massey, Be Hallett, 14, 1,">, 44,49 Howse V. Chapman, 46, 50, 52 I. Incorporated Church Building Society V. Coles, 35, 89, 96 Incorporated Society v. Price, 66 Incorporated Society v. Richards, 60 Ingleby v. Dobson, 84 Ion V. Ashton, 42 Ireland's AVill, Be, 97 J. Jacson v. Queen Anne's Bounty, Go- vernors of. Be Harris, 14, 43 Jeifries v. Alexander, 40, 58 Jervis v. Lawrence, 44 Jesus College v. Gibbs, 59 Johnson v. Woods, 53 Johnston v. Swann, 34, 39, 52, 85 Johnstone v. Hamilton, 57 Jones, Be, Jones !'. Williams, 82, 83 86 Jones V. Badley, 57 Jones V. Mitchell, 35 K. Ker v. Dent, Be Ycrbury's Estate, 47 Kirkbank v. Hudson, 57, 85, 87 Kirkmann v. Lewis, 83 Khapp V. Williams, 41, 42, 43 LAcr V. Stone, Be Pitt's Estate, 53 Langham's Trust, Be, 45 TABLE OF CASES. Leaoroft v. Maynard, 35, 39 i.ee's Trusts, He, 83 Levitt, Marmaduke, JRe, 88, 94 Lewis V. Boetefeur, 53 Limbrey v. Gurr, 90 Linley v. Taylor, 46 Lister's Hospital, Se, 70 Lomax v. Ripley, 57 Lond(jn, University of, «. Yarrow, 86, 88 Lonastaff v. Hennison, 57, 84 Lucas V. Jones, 37, 39 Luckraft v. Pridham, 1, 27, 29, 95, 99 Ludlow's Trusts, He, 84 Lynall's Trusts, Me, 81 M. Makeham v. Hooper, 99 Mann v. Burlingham, 86 March v. Att.-Gen., 46 Marsh v. Att.-Gen., 36, 37 Martin u. Freeman, i?e Taylor, 83, 85, 90 Martin v. Laoon, Se Christmas, 15, 41, 42, 43, 44 Martin v. Wellstead, 83, 85 Mather v. Scott, 85, 86, 92 ■ Melllck V. Asylum, President, &o., of, 86 Middleton v. Cater, 56 Middleton v. Clilherow, 89 Middleton v. Spicer, 40 Miles V. Harrison, 53 Mills V. Farmer, 67 Mitchell's Estate, Be, 47, 48 Mitford V. Beynolds, 86 Mooatta v. Att-Gen., He Goldsmith, 84 Mogg V. Hodges, 52 Moggridge v. Thackwell, 67 Morley v. Croxon, Se Hedgman, 84, 87, 88, 89 Morris c. Glynn, 46 Morris v. Owen, 85 Moseley, He, Moseley v. Moseley, 87 Moss V. Cooper, 57 , Muckleston v. Brown, 57 Mummery v. Gange, He Gange, 14, 15, 44 Myers v. Perigal, 41, 44, 45, 46 N. Negus v. Coulter, 43 Nethereole v. School for Indigent Blind, 95 Norwich Town Close Estate Charity, He, 70 o. O'Beien v. Tyssen, 57, 97 Oldershaw v. Govei-nesses' Benevolent Institution, He Bradley. 99 P. Page v. Leapingwell, 35 Paice V. Canterhury, Archbishop of, 34, 52 Paine v. Hall, 57 Palmer v. Webb, He Webb, 40 Parker, He, Wignall v. Park, 44, 48 Payne v. Esdaile, 14, 44 Pelham v. Anderson, 83 Perring v. Trail, 95 Philpott V. St. George's Hospital, 68, 84 85 Pieschel v. Paris, 45 Pilkington v. Boughey, 56, 57 Pitt's Estate, He, Lacy v. Stone, 53 Pollock V. Day, 30 Poor V. Mial, 57 Pratt V. Harvey, 83, 85, 86 Price V. Hathaway, 90 Priddle and Napper's Case, 59 Prison Charities, He, 67 Pritchard v. Arbouin, 83, 85, 86 R. Eavenscrofc v. Workman, Re Arnold, 53 Raymond v. Lakeman, 41 Kendall v. Blair. 77 Rex V. Bates, 43 Rexu. Newman, 59 Rex V. AVinstanley, 50 Richardson's Will, He, 68, 90 Ridgway ?'. Woodhouse, 34 Eigley'e Trusts, He, 97 Robinson v. Geldard, 53 Robinson v. London Hospital, Govern- ors of, 95 Robinson v. Robinson, 35 Robson, He, Emley v. Davidson, 40, 58, 89 Robson V. Gibbs, He Hatton, 48, 50, 53 Rodwell V. Att.-Gen., 68 Rymer v. De Rosaz, He De Rosaz, 87 TABLE OF CASES. St. Giles', &c., Volunteer Corps, Be, 71 Salusbury v. Dentpn, 88 Sewell V. Crewe-Eead, 84, 85 Shadbolt v. Thornton, 36, 37 Shaw V. Pickthall, 84 Shepheard v. Beetliam, 40 Sims V. Quinlan, 67 Sinnett v. Herbert, 87, 88, 97 Smith r. Oliver, 83, 90 Smith V. Sopwitt, 39 Smith's Estate, He, Clements o. Ward, 97 Sorresby v. Hollins, 88 . Sparling v. Parker, 45 Springett v. Jenings, 57 Stafford, Earl of, v. Buckley, 38, 42, 43 Sweeting r. Sweeting, 57 Symonds v. Marine Society, 39 T. Tate V. Austin, 52 Tatham v. Drummond, 83, 84 Taylor, Be, Martin v. Freeman, 83, 85, 90 Taylor v. Linley, 46, 53 Tee V. Ferris, 56 Tempest v. Tempest, 53 Thomas v. Howell, 35 Thompson, Be, Bedford v. Teal, 15, 44, 48, 49, 50, 51 Thompson v. Thompson, 45 Thomber v. Wilson, 34 Thornton v. Kempson, 43 Tomlinson v. Tomlinson, 45 Trimmer v. Danby, 86 Trye r. Gloucester, Corporation of, 83, 85 Tyrrel v. Whinfield, 42 V. Vaughan v, Farrer, 87 Vaughan, Be, Vaughan v. Thomas, 97 Vigers v. St. Paul's, Dean, &c., of, 59 w. Waite V. Webb, 35, 38 Walker v. Milne, 45, 47 Wallgrave v. Tebbs, 57 Walmsley v. Rice, 15, 40, 50 Ward V. Hipwell, 69 Ware v. Cumberlege, 45 Waterhouse r. Holmes, 81 Watmough's Trusts, Be, 83, 85, 87 Watson V. Blakeney, 97 Watson V. Spratley, 46 Watts, Be, Cornford v. Elliott, 33, 37, 38, 40, 44 Webb, Be, Palmer v. Webb, 40 Wheeler v. Smith, 57 White's Trusts, Be, 85 White V. Evans, 39 Widmore v. Woodroffe, 88, 89 Wigg V. Nioholl, 53 Wignall V. Park, Be Parker, 44, 48 Wilkinson v. Barber, 89 Willet V. Sandford, 56 Williams v. Kers'jaw, 52 Willis V. Brown, 86 Wills V. Bourne, 53 Wright V. Wilkin, 56 Yerbury's Estate, Be, Ker Young V. GrcTo, 56 Dent, 47 TABLE OF STATUTES. 9 Hen. III. c. 36 (Magna Charta), 5 7 Edw. I. (De Viris), 6 27 Hen. VIII. c, 16 (Enrolment), 96, 98 34 & 35 Hen. VII. u. 5 (Wills), 59, 60 43 Eliz. c. 4 (Charit. Uses), 2, 7, 59, 69 12 Car. II. c. 24 (Tenures), 6 2 & 3 Anne, c. 20 [c. 11, Ruff.] (Queen Anne's Bounty), 99 9 Geo. II. c. 36 (Charities), passim 19 Geo. III. 0. xxiii (Bath Infirmary), 99 42 Geo. III. c. 116 (Land Tax), 96, 99 43 Geo. III. c. 107 (Queen Anne's Bounty), 11, 19, 99 43 Geo. III. c. 108 (Church Building), 96,97 5 Geo. IV. u. 39 (British Museum), 100 9 Geo. IV. 0. 85 (Mortm. Amend.), 27 3 & 4 AVili. IV. 0. 9 (Seamen's Hosp.), 99 4 & 5 Will. IV. 0. xxxviii (St. George's Hosp.), 100 5 & Will. IV. 0. 76 (Munic. Corpor.) 50, 51 6 & 7 Will. IV. 0. vii (Middlesex Hopp.), 100 6 & 7 Will. IV. c. XX (Westminster Hosp.), 100 7 AVill. IV. & 1 Vict. c. 26 (Wills), 56, 60 2 & 3 Vict. c. 93 (Police), 43 3 & 4 Vict. c. 88 (Police), 43 4 & 5 Vict. c. 38 (School Sites), 100 6 & 7 Vict. li. 37 (Mortra.), 98 7 & 8 Vict. c. 33 (Police), 43 7 & 8 Vict. i;. 37 (School Sites), 100 7 & 8 Vict. c. 94 (Eoclesiast. Commiss.) 98 7 & 8 Vict >i. 97 (Ireland), 30 7 & 8 Vict. c. 101 (Poor Law), 101 8 & 9 Vict. V. 17 (Comp. Clauses), 47, 48 12 & 13 Vict. c. 49 (School Sites), 100 14 & 15 Vict. c. 24 (School Sites)_ 100 14 & 15 Vict. c. 97 (Church Building), 98 15 & 16 Vict. 0. 49 (School Sites), 100 16 & 17 Vict. u. 137 (Cliarit. Trusts), 69, 70, 71, 73, 76, 77, 78, 79, 80 17 & 18 Vict. c. 112 (Liter, and Scien. Institutions), 100 18 & 19 Vict. c. 124 (Charit. Trusts), 78, 79, 80 19 ■% 20 Vicl. c. 104 (Parishes), 98 22 Vict. c. 27 (Recreation Ground,s),98 23 & 24 Vict. c. 136 (Charit. Trusts), 71, 72, 75, 76, 79, 92 24 & 25 Vict. c. 9 (Mortm. Amend.), 27 25 & 26 Vict. c. 17 (Mortm. Amend.), 27, 31 25 & 26 Vict. c. 89 (Companies), 46 26 & 27 Vict. c. 118 (Comp. Clauses), 49 27 & 28 Vict. c. 13 (Mortm. Amend.), 27 28 & 29 Vict. c. 42 (Churches), 98 28 & 29 Vict. c. 89 (Greenwich Hosp.), 99 29 & 30 Vict. u. 57 (Mortm. Amend.), 27 30 & 31 Vict. 0. 54 (Ireland), 30 TABLE OF STATUTES. 30 & 31 Vict. c. 133 (Churchjaids), 101 32 & 33 Vict. c. xxiii (Univ. Coll. Hosp.), 99 32 & 33 Vict. c. 110 (Charit. Trusts), 75, 77, 78 33 & 34 Vict. c. 34 (Investment), 26 33 & 34 Vict. V. 75 (Elem. Educ), 100 34 & 35 Vict. u. 13 (Parke, &c.), 93 34 & 35 Vict. c. 102 (Iieland), 30 35 & 36 Vict. 0. 24 (Charit. Trustees Incorp.) 28 30 & 37 Vict. c. 50 (Places of Worship), 101 :;G & 37 Vict. V. 66 (Jud. Act), 65 38 & 39 Vict. c. 55 (Pub. Health), 51, 99 38 & 39 Vict. c. 68 (Science and Art), 99 41 & 42 Vict. c. 68 (Bishoprics), 99 42 & 43 Vict. c. 31 (Interments), 99 45 & 46 Vict. c. 21 (Places ofWorship), 101 45 & 46 Vict. c. 50 (Munic. Oorpor.), 50 45 & 46 Vict. c. 75 (Married Women), 98 50 Vict. c. 12 (Truro), 99 50 & 51 Vict. c. 49 (Charit. Trusts), 79 51 & 52 Vict. u. 42 (Mortm.), 103-112 ct passim 53 & 54 Vict. c. 16 (Working Classes Dwellings), 96,- 99 54 & 55 Vict. c. 73 (Mortm.), passim A TREATISE OS THE MORTMAIlvr AKD CHARITABLE USES ACT, 1891. INTRODUCTION. The restrictions on the power to dedicate property to 9 Geo, II. charitable uses were first imposed by the Act 9 Geo. II. *'• ^^' c. 36, which was passed in the year 1736. That Act has generally, and not inaccurately, (a) been known as the Statute of Mortmain. Various amending Acts (h) were from time to time passed, none of which affected the substance of the ori- ginal statute. They do not, therefore, call for notice here. The Act of George II., and all the amending Acts, were Moitm. and repealed, and their provisions re-enacted, by the Mortmain Acr'isss^^^ and Charitable Uses Act, 1888. (c) The substituted provisions are contained mainly in sects. 4 and 5 of that Act. The Mortmain and Charitable Uses Act, 1888, was, so far as it related to charitable assurances, a mere measure of consolidation. It made no change in the pre- vious law. The Mortmain and Charitable Uses Act, 1891, does not Moitm. and Charit. Uses (a) The Act 9 Geo, II. c. 36, was not in pari materia with the old ^'^^' ^^'^^' Mortmain Acts, which applied only to corporations. But charitable trusts vested in bodies of trustees, being of perpetual duration, are, equally with corporations, within the mortmain principle : see per Jessel, M.R., in Luck- draft T. Pridham, 6 Ch. D. at p. 214. (b) These are stated posf, p. 27. (c) Printed in the App., j>os«. A 2 MORTMAIN AXD CHARITABLE USES ACT, 1 89 1. expressly repeal any part of the existing law, except {d) the definition of "land" contained in sect: 10 of the Mortmain and Charitable Uses Act, 1888. But in effect it repeals the whole of part ii. of that Act so far as it relates to assurances by will.(«) Anomalous The Act of George II. was a remarkable statute. No 9 Geo^lT °^ ^^^^ ^^^ ^^s ®^®'' applied to Scotland or to Ireland,(/) and, c. 36. SO far as the author is aware, no similar enactment exists in any foreign country.(^) Even in England it is ia striking contrast to the policy which the law has in other respects pursued in dealing with charities. Except in administering this enactment, the Courts have always regarded charities with peculiar favour. The Court of Chancery relaxed some of its strictest rules in their behalf. (A) Even at the present day there are many rules subsisting which show the anxiety of the Courts to protect charitable trusts. (■!;) Previously to the passing of the Act of George II. the Legislature had, by the Statute of Charitable Uses,(^) given great encouragement to the establishment of charitable foundations. Since that date, also, its efforts have been consistently directed to protecting the property of charities and procuring the cheap and efficient admin- istration of their estates. It has even established an administrative and judicial body for the sole purpose of regulating and controlling the execution of charitable trusts at the expense of the State. (^) Sentiments of benevolence are in themselves sufficient (d) Sect. 3, post. (e) As to the general effect of the new Act, see post, p. 24. (/) Ab to the restrictions in the case of Ireland, see post, p. 80. (g) Provisions restricting death-bed charity and the right to disinherit wives and children are no doubt found. But the English Act went far beyond the requirements of any principle of either of these kinds : see post, pp. 4, 5. (7i) See Tudor's Charit. Trusts, p. 320. (i) Ibid. p. 28 et seg. (k) 43 Eliz. c. 4. This Act, after being long obsolete, except so far as it furnished the legal definition of charity, was repealed by the Mortm. and Charit. Uses Act, 1888. The preamble was, however, preserved by sect. 13 of that Act. [I) The work of the Charity Commission is performed without charge to the charities : Tudor's Charit. Trusts, p. 591. INTRODUCTIOX. 3 reasons for the existence of a tendency to make charities the objects of special regard. But even considerations of expediency point in the same direction. The Legislature has long recognised a duty to make provision for the destitute and suffering. It has maintained workhouses and asylums, and the statute-book contains innumerable provisions for the benefit of the poorer classes. Yet notwithstanding that the revenues of the country have been daily applied to charitable objects, the Legis- lature enacted, and up to the date of the passing of the new Act retained, provisions impeding the operation in the same direction of private bounty. While suppressing the benevolence of individuals, it provided out of its own resources funds for purposes of pi-ecisely similar character. It is a matter of some interest to endeavour to ascer- Reasons for tain what the motives were which led to the Act of n^c^fe ^^° George II. The Act was entitled " An Act to restrain the dispo- sition of lands, whereby the same become unalienable." The preamble was not happily expressed. It recited that, " Whereas gifts or alienations of lands, tenements, or hereditaments in mortmain, are prohibited or restrained by Magna Charta and divers other wholesome laws as prejudicial to and against the common utility ; neverthe- less this public mischief has of late greatly increased by many large and improvident alienations or dispositions made by languishing or dying persons or by other persons to uses called charitable uses, to take place after their deaths, to the disherison of their lawful heirs." Lord Hardwicke, who, as Lord Chief Justice, was one of the promoters of the Act, and as Lord Chancellor was its earliest expounder, said in Att.-Gcn. v. Lord Wcj/- mouth (in) : '' The reason of this statute was to hinder gifts by dying persons, out of a pretended or mistaken notion of religion, as thinking it might be for the benefit of their souls to give their lands to charities which they paid no regard to in their lifetime." (m) Amb. at p. 23. See other cases referred to in Tudor's Charit. Trusts, p. 389. 4 MORTMAIN AND CHABITABLE TSES ACT, 1 89 1. Again in Att.-Gen. v. I)ay,{n) he said : " This, though mentioned as a barbarous Act, is quite otherwise : far from being a prohibition of charitable foundations, it only restrains this method, leaving the disposition of personal property thereto free. The particular views of the Legislature were two : first, to prevent the locking up of land, and real property from being aliened, which is made the title of the Act ; the second, to prevent persons in their last moments from being im- posed on to give away their real estates from their families." From an analysis of these comments, taken in con- nection with the title and preamble, three reasons may be arrived at as those upon which, professedly at all events, the Act was based. These are — (1) the desire to prevent testators from leaving their real estate away from their families ; (2) the restraint of death-bed charity ; (3) the political reason of obviating the mischief which might arise from the fettering of large quantities of land by charitable trusts. Each of them requires separate consideration. Disherison of It may certainly be doubted whether the Legislature awful heirs, ^g^g g^gj. really actuated by a desire to prevent testa- tors from leaving their real estate away from their families. The law of England might, no doubt, as has been done in some other countries, have placed restrictions on the power of a man to disinherit his family. But it has never shown any disposition to adopt such a course. Nevertheless, although there are many ways in which the Legislature might, had it so desired, directly and effectually have protected the families of testators, we are to suppose that, instead of adopting any of them, it chose to proceed indirectly under cover of an attack on charities. The improbability is manifest. Moreover, even if the Act of George II. had any object of this kind, the protection afforded by it was totally inadequate to produce the desired effect. The Act stopped short at real estate, which many persons do not (n) 1 Ves. Sen. at p. 223. INTRODUCTION. 5 possess, and did not extend to personal estate, which most persons who make wills do possess. It restrained gifts to charities, which are generally beneficial, and often meri- torious, but it left wholly untouched the multitude of silly and capricious bequests by which testators might choose to gratify their vanity or indulge their spleen. The conclusion is irresistible that this reason was thrown in merely as a makeweight, and was not, taken by itself, in any degi'ee responsible for the passing of the Act. It is equally difficult to suppose that the desire of pre- Death-bed venting death-bed charity was the real motive which <^^^^^^y- influenced the Legislature. If that had been its object, how readily it might have accomplished it by a simple and effectual enactment. But how inapt was the Act now under consideration. It extended to all wills, whether made by a testator on his death-bed or not, and, while restraining the gift of land and interests in land, it left every man perfectly free to dispose of his pure personalty, even on his death- bed, in any way he pleased. The third reason was the prevention of what Lord Alienation of Hardwicke called the locking-up of land.(o) To enable the cogency of this reason to be appreciated, Analogy be- lt is necessary tx) bear in mind the analogy which exists ti^ns°an™^°™' between corporations and charitable trusts vested in charitable , T /. , ^ trusts. bodies of trustees. Pi-om the date of Magna Charta(^) restrictions have Mortmain law. been imposed on the acquisition of land by corporations. This is technically called the Law of Mortmain. The early statutes were designed to check the accumulation of land in the hands of the gi'eat ecclesiastical corporations. By subsequent enactments the principle was extended to all corporations, civil as well as ecclesiastical. ((^) The origin of the Mortmain Acts was feudal, and the reasons originally assigned for them — namely, that, by the accumulation of land in the hands of corporations, the (o) See Atf.-Gen. v. Day, ante, p. 4. {p) 9 Hen. III. v;. 36. ((/) Tudor's Charit. Trusts, p. 372 ct seq. 6 MOETMAIN AND CHARITABLE USES ACT, I 89 1. lords were deprived of the incidents of tenure and the benefit of escheats(r) — were feudal also. If these had been the only grounds on which the Acts could be supported, there would have been little reason, even at the time of the passing of the Act of George II., for any attempt to extend their application. The peculiar and once-important incidents of tenure were abolished in the year 1660, (s) when all land was made of the tenure of free and common socage, and escheats were daily diminishing in importance. There is, however, another reason which has been commonly supposed to furnish a solid foundation for the Mortmain Law. It is the policy, which the law has consistently adopted, of facilitating, and as far as possible removing impediments to, the free circulation of all kinds of property. Land vested in corporations is not inalienable, but it ceases to be subject to the ordinary laws of devise and descent. It therefore becomes withdrawn from circula- tion except so far as the corporation itself may voluntarily dispose of it. This reason is one which, in theory at all events, is permanent. Whatever may be the true view as to its importance at the present day, a glance at English history will show that there have been periods at which it has been of considerable moment. Nor was the time of the passing of the Act of George II. so far removed from those periods as to render it unreasonable that weight should then have been given to it. Perpetuity of Charitable trusts may be vested either in corporations charitable ^^ jj^ bodies of trustees. To such of them as are vested trusts, in corporations the restrictions of the Law of Mortmain apply. But to those, probably the greater number, which are vested in trustees that law does not apply. Never- theless, such trusts share equally with corporations the quality of perpetuity. Charitable trusts have always been exempt from the rule of law which fixes a limit to the duration of private trusts. Once established, their dura- (r) See the preamble to the Stat, de Viris Eeligiosis, 7 Edw. I. (s) 12 C;ir.-ir. c. 24. INTEODUCTION. 7 tion is perpetual, and they cannot, as a general rule, be ever varied except under the authority of the Legis- lature. The influence of the dead hand is, in fact, not less paramount in the case of charitable trusts than in the case of corporations. At the time of the passing of the Act of George II. there had recently been witnessed a great increase in the number of charitable trusts. An Act passed in the reign of Elizabeth,(<) and now repealed,(«) coupled with the generous interpretation placed upon it by the Courts, had provided a great incentive to the establishment of these trusts. This result had been further promoted by the power to dispose of land by will, which, though first acquired in the reign of Henry VIII., did not become complete until 1660, when socage tenure was made the universal tenure of land. It may, then, well have seemed to the legislators of 1736 that a class of institutions, within the mischief, though not within the operation, of the Law of Mortmain had recently increased to an alarming extent, and if they had confined themselves to imposing, in the case of charitable trusts vested in trustees, restrictions upon the acquisition of land similar or analogous to those which the law had imposed in the case of corporations, little com- plaint could have been made. But the Act 9 Geo. II. c. 36, went very far beyond 9 Geo. II. 0. the requirements of the mortmain principle. The re- ^g^' ^^^^^^^1^^^'^ striction in the case of corporations extended only to of the mort- land. The Act of George II. extended to " any estate or ™'''°P"'«='pl« interest in land." Under the Mortmain Acts an assurance of land to a corporation was not void, but voidable only on the exercise by the Crown or any mesne lord of a right of re-entry. The Act of George II. permitted the assurance, in favour of charity, of property falling within its purview, or of money to be laid out in the purchase of such property, provided that a variety of onerous require- (() 43 Eliz. L-. 4. (11) By the Mortm. and Charit. Uses Act, 1888. 8 MOETMAIN AND CHARITABLE USES ACT, 1 89 1. ments were specifically complied with. But it rendered every assurance which did not satisfy those requirements wholly and irrevocably void. As one of the conditions imposed was that the gift must be by deed, it followed that the Act destroyed the power to give to charity by will any land, or any interest in land, or any pecuniary legacy to be laid out therein. Again, under the mortmain law, the acquisition of land by a corporation might be authorized by a licence from the Crown. The Act of George II. provided for no such exemption. Its provisions could be overridden by nothing short of an Act of Parliament. It must be further mentioned that, after the passing of this Act, corporations invested, or proposed to be invested, with charitable trusts became subject to the disabilities imposed by that Act, in addition to the disability which they shared in common with other cor- porations under the old Mortmain Acts. Alleged It is impossible to avoid the conclusion that the oienUo™"*^" P^^®™^ of the Act 9 Geo. II. c. 36, must be attributed account for 9 to Something more than the nominal reasons which were Geo. II. c. 36. assigned for it. It is scarcely conceivable that if the Legislature had been actuated only by the single-minded desire to protect the families of testators, or to prevent death-bed charity, or to extend the mortmain restrictions to charitable trusts vested in trustees, it would have accomplished its purpose by means of this Act, so inappropriate as regards the two first objects to secure the end desired, and, as regards the last object, so much wider and more stringent than the necessity of the case required. Report of The Select Committee which was appointed to consider m1tteerfi844 *^® subject in 1844 stated in their Report that they had " failed to arrive at any certain knowledge of the true grounds on which the Act of George II. was passed. Indeed, the insufiiciency of the reasons assigned in the reported debates is such as would rather lead to the inference that some apprehensions which it was not INTKODUCTION. 9 thought wise to make public must have operated in addition to the avowed motives of the Legislature." One of the witnesses (w) said that he had endeavoured to ascertain the origin of the Act, but without success. " I am strongly inclined to think," he added, " that there is a great deal more than meets the eye in reading the liistory of that time. When I compare the enactments of the Act with its title and preamble, I suspect there must have been some local and partial purpose to be answered." And again: "It is clear we have not arrived at the real motives of the Legislature by anything which is professed in the title or preamble." The Bill was introduced into the House of Commons Passing of the by Sir Joseph Jekyll, the Master of the EoUs. It was ^'"'■ not hurried through the House. It was eagerly debated, and in many quarters strenuously opposed. Yet it was carried by a large majority, and met with general ap- proval. In the House of Lords it received almost universal support.(a;) There can, in fact, be little doubt that the Act was borne to success upon a wave of popular feeling. At this distance of time it is difficult, impossible Unexpressed perhaps, to say with certainty what were the unexpressed ^^ging ■°^ apprehensions which weighed with the promoters of the Bill, or what was the nature of the wave of feeling which led to its successful enactment. It may, however, be said that in all probability the motive influence was a temporary sentiment of hostility to, and jealousy of, the Church. It is true that the revolution of 1688 had removed any real fear of a revival of papal influence. Still, the memory of the power and wealth to which the Church of Rome had attained was fresh. It was remembered that the mortmain law had originally been directed at the powerful ecclesiastical corporations. It was remembered also that, notwithstanding that law, nearly one-fifth (io) Mr. Burge, Q.C. (x) The notes of a speech prepared by Lord flaidwicke in its support, but nrt delivered, are found in Han'is' Life of Hardwicke, vol. i. p. 308. 10 MORTMAIN AND CHARITABLE USES ACT, 1 89 1. of the whole land of the kingdom had, at the time of the dissolution of the monasteries, been in monastic hands. It is therefore intelligible that some apprehension may have been felt lest the Eeformed Church should attain sufficient possessions to disturb the balance of power in the State. That Church aggrandisement might form a disturbing element in politics seemed to be rendered not impossible by the Jacobite proclivities which were at that time attributed, rightly or wrongly, to the ecclesiastical authori- ties. It was thought that the unrestricted power to establish charitable trusts — a class of institutions which (as has been said) were within the mischief, though not within the operation, of the Law of Mortmain — might open the door to the acquisition by the Church of a dangerous ascendency. And Queen Anne's Bounty, then recently established, was thought to furnish an example of the evils which might be expected to arise. Throughout the debates upon the Bill it is curious how little attention was bestowed on lay charities. The neglect of educational charities may partly be accounted for by the fact that the universities and colleges of Oxford and Cambridge were expressly excepted from the Act. But this does not explain the almost entire omission of any reference to lay eleemosynary charities. The true reason of the omission is that the ecclesiastical charities were those which were uppermost in the minds of the speakers. The chief of them, Queen Anne's Bounty, is mentioned over and over again, in terms almost of dread. The following extract from the speeches in the House of Lords illustrates this : — " By a still more extraordinary Act, in the late Queen's time, all the clergymen of the Church of England are in some manner united into one coiporation ; and that corporation is not only enabled to purchase lands in mortmain without any licence from the Crown, but is provided with a very large and perpetual yearly fund for that purpose, for the first-fruits and tenths settled upon INTltODUCTIOX. 11 them by that Act bring in already £1-1.,000 per annum, and will in a very short time bring in £20,000 per annum. But further, my Lords, lest that happy event of their being made the masters and lawgivers of this country should be too long postponed, every man in England, nay, every woman in England, is by that Act enabled to give them by deed and even by will the whole estate, real and personal, which he or she may die possessed of ; and such estates the corporation are rendered, by that Act, capable to hold and enjoy without any licence ad qiwd damnvvi, and notwithstanding the Statutes of Mortmain And I must say the corporation has established a most excellent rule for this purpose. They have resolved not to purchase anything but land ; they have resolved not to content themselves with any pension or annuity issuing out of lands, but to be absolute masters of the lands themselves."(2/) The details of the debates in the House of Commons are not preserved, but the following significant passage occurs in Lord Hervey's memoirs (z) : — " The Moitmain Bill and the Quakers' Bill were both passed in the House of Commons by great majorities, and everybody that spoke of them gave the bishops and the parsons very hard as well as very popular slaps. The young men all ran riot on these topics, and there were none to take the part of the poor Church but a few old Tories and the Jacobites." It is true that there was no imputation of improper acts or designs to the Church or any member of it. Still, the enactment was in all probability a quia timet one, the inspiring motive being the fear of Church ascendency. A faint reflection of this feeling may be seen even in the preamble to the Act. The words " improvident .... dispositions made by languishing or dying persons " seem to point to that influence to which dying persons must always be most (y) Queen Anne's Bounty was exempted from 9 Geo. II. i.-. 36, in 1803, by 43 Geo. III. c. 107. {z) Vol. ii. p. 94. 12 MOETMAIN AND CHAKITABLE USES ACT, 1 89 1. readily subject — the influence of the ministers of re- ligion. The same note was also struck by Lord Hardwicke in his judgment in the case of Att.-Gen. v. Bay.{a) An extract from that judgment has already been cited. (6) Decisions on 9 It is apparent, from what has preceded, that the dis- ■ abilities to which charities became subject under the Act 9 Geo. II. c. 36, were exceedingly and (as it must now be conceded) unnecessarily stringent. But the real extent of them cannot be appreciated without a reference to the great body of case law which crystallised round its provisions. The kinds of property to which the legislative restrictions attached were lands, tenements, and hereditaments, cor- poreal and incorporeal, of any tenure and any estate and interest in land (c) and personal property to be laid out in the purchase of land. A considerable number of the decisions related to the effect of the exclusion of " personal property to be laid out in land." These are dealt with hereafter, (c^) and require no special attention here. Interests in The great difficulty in dealing with the Act arose in connection with the expression " estate and interest in land." It is obviously impossible to give a precise meaning to this phrase. In the early days, particularly in those of Lord Hard- wicke, when the current of feeling was in favour of the Act of George II., the tendency of the Court was to give the widest possible meaning to the words. In later times a certain reaction set in, and the tendency was rather in the opposite direction. Taking the decisions as a whole, it cannot be said that the problem of defining an "interest in land" was satisfactorily solved. Indeed, the complexity and (a) 1 Ves. Sen. at p. 223. (6) Ante, p. 4. (c) This is the definition of " land " contained in sect. 10 of the Mortra. and Charit. Uses Act, 1888 : see App., ^ost. The definition, howevsr, repro- duced the language of 9 Geo. U. u. 36. {d) Post, p. 82 et seq. IXTEODUCTION. 13 unintelligible nature of the decisions has long been notori- ous. In a case decided two years ago,(e) North, J., expressed his regret that advantage had not been taken of the Mort- main and Charitable Uses Act, 1888, to settle once for all the various questions which were constantly arising in the courts on this subject. The cases are dealt with in the notes to sect. 3 of this Act.(/) It is sufficient for the purposes of this Introduc- tion to refer to a few of them only. The question frequently arose whether bonds given by turnpike, bridge, harbour, or dock authorities, under their statutory powers, and securing loans on mortgage of the tolls received from persons using the road, bridge, harbour, or dock, were interests in land. There are two classes of tolls recognised by the law — tolls traverse and tolls thor- ough. One class was not more within the mischief of the statute than the other, yet a bond secured on tolls thorough was held to be pure personal property, while a bond secured on tolls traverse was an interest in land.(^) It was easy to state this distinction, but it was difficult, and without an application to the Court impossible, in any par- ticular case, to determine whether the tolls in question fell within the one class or the other. The answer depended on a critical examination and comparison of the various Acts of Parliament, different in every case, from which the powers of the body creating the security were derived ; and the subtle point which had to be determined was, whether the tolls were " an incident or addition to the income and the profit arising from " the land, or whether they were a " totally distinct and independent personal franchise."(A.) Again, it was decided in the year 1804('i) that a mort- (e) Be David, Buckley v. Boyal National Lifeboat Institution, i\ Cb. D. at p. 175. (/) Post, p. 32 et seq. (g) Be David, Buckley v. Boijal National Lifehoat Institution, A3 Cli. D- 27. (h) Att.-Gen. v. Jones, 1 Mac. & G. at p. 589. ((■) Finch V. Squire, 10 Ves. 41. 14 MORTMAIN AND CHARITABLE USES ACT, I 89 1. gage of poor-rates and county-rates was an interest in land, and could not be bequeathed to charity. The ground of the decision was that, " inasmuch as the rates were chargeable in respect of the ownership of the land, and could be levied by distress, they were like rent."(7i;) The case was subsequently frequently followed. A bond charging money on police-rates was, however, held not to be an interest in land.(Z) The reason given was, that the rates were levied by the guardians, and the bonds were given by the justices, so that the funds which became directly subject to the pledge were funds received by the justices from the guardians, which, after the transit, had lost the character of rates and become purely personal estate. Again, it was recently held that a charge on the general district rate was not an interest in land,(m) but no ground was suggested upon which any distinction in principle could be drawn between that rate and poor-rate. It was perfectly clear, however, that the original case had never been overruled, and could not be except by a Court of the highest authority. Only two years ago it was referred to in the House of Lords as a subsisting decision, (w) and more lately it was expressly followed.(o) Who, then, could answer the question, whether a mortgage of rates was or was not an interest in land ? Here again (except where the particular rate had been the subject of express decision) the problem could only be solved by an applica- tion to the Court. A great number of municipal corporations and other local authorities are invested with statutory powers of borrowing money, and charging it upon their general pro- perty, and the proceeds of undertakings, such as gasworks and waterworks, carried on by them, and upon various rates and other funds. These powers are frequently con- (/■;) Per Jessel, M.E., in Re Harris, Jacsonv. Governors of Queen Anne'g Bounty, 15 Ch. D. at p. 565. {I) lie Harris, sup. (to) Be Hallett, Howarth v. Massey, 5 Times L. E. 285 («) Payne v. Esdaile, 13 App. Gas. at p. 628. (0) Be Oange, Mummery v. Gange, Times, 19 Mob. 1889, INTRODUCTION. 15 ferred by special Acts relating only to the particular authority by which the loan is made, and the Acts them- selves differ widely in scope and language. The question whether bonds or mortgages given under powers of this kind were or were not interests in land formed a frequent subject of litigation, and the distinctions drawn were often exceedingly subtle.(j3) The cases on this subject were very numerous, but the following sum- mary of the results of some of the latest of them will illustrate the extreme uncertainty which characterised this branch of the law. Bonds of the corporations of Dewsbury, Bradford, and Wakefield were held not to be interests in land.(5') On the other hand, as regards bonds of the Salford and Old- ham corporations, a contrary decision was arrived at.(r) Leicester corporation bonds could be given to charity, but not Leicester corporation 34 per cent, redeemable stock, (s) or consolidated stock of the corporation of Manchester. (<) Again, East India stock was not an interest in land ; {lo) but Metropolitan Board of Works Consolidated Stock was. (a;) Mersey Dock bonds (y) and Great Yarmouth Port and Haven bonds (z) could be given to charity, but not Swansea Harbour bonds (a) or bonds issued under the Dover Corporation Sea Defences Act.(&) The hardships to which charities were subjected were Assets not crowned by the rule under which the Court, with a view f^vnur of of giving the fullest possible effect to the Act of George II., cbarity. refused to marshal assets in their favour. (p) The subtlety of the distinctions cannot he better illustrated than hy the two recent cases of -ffie Tliompeon, Bedford v. Teale, 45 Oh. D. 161, and lie Solmes, Bolmes v. Holmes, 63 L. T. N. S. 477. {q) Me Tlmmpson, sup. (r) WalmsJey v. Bice, 1 Times L. E. 251. (s) Be Sallett, Howarth v. Massey, 5 Times L. K. 285. (t) Be Solmes, Solmes v. Solmes, sup. (u) Alt.- Oen. v. Giles, 5 L. J. Ch. 44. (x) Oluffv. C'luff, 2 Ch. T). 222. (y) Be Sallett, Sowarth v. Massey, sup. {z) Be Christmas, Martin v. Lacon, 33 Ch. D. 332. (a) Be David, Buckley v. Boyal National Lifeboat Institution, 43 Ch. D. 27. (b) Be Gange, Mummery v. Oanrje, Times, 19 Mcb. 1889. 16 MORTMAIN AXD CHAEITABLE USES ACT, 1 89 1. Where a testator had formed a mixed fund, partly derived from real and partly from personal estate, and had made it applicable, among other things, to the pay- ment of a charitable legacy, the Court did not consider itself at liberty to shift the debts and expenses and the non-charitable legacies on to that part of the estate which could not be applied to charity, thus leaving the pure personal estate free to answer the charitable legacy ; but it considered itself bound to administer the estate in the same way as if no legal objection existed to applying any part of it for charitable purposes, the result being that the charitable bequest failed so far as in the ordinary course of administration it fell to be paid out of the prohibited fund. Lawproduc- It is worth while, before leaving this part of the tiou. ' '^* subject, to observe how productive of litigation the uncertainty which surrounded this branch of the law was. Whenever property like the corporation, harbour, or dock bonds above referred to (unless the particular bond had been the subject of decision) was bequeathed to charity, or whenever a charitable legacy fell in the ordi- nary course of administration to be paid, even to the smallest extent, out of property of this nature, an appli- cation to the Court was required. No lawyer could, having regard to the state of the authorities, advise with any con- fidence whether the property was or was not an interest in land ; and if he did, no executors could act upon such advice without risk of personal liability. If an application to the Court was made, it could not in most cases, at all events if it was at all strenuously resisted, be disposed of without elaborate evidence and long and subtle arguments. All this meant considerable expense. In the end, the intention of the testator might or might not be frustrated. If it was, the expense and trouble were thrown away. If it was not, the accom- plishment of his benevolent purpose was dearly bought. Disapproval of The Act 9 Geo. II. c. 36, met, from time to time, with gg '"' ''■ strong condemnation. INTKODUCTION. 17 In IS-W a Select Cominittee of the House of Commons Select was appointed " to inquire into the operation of the laws ^g^"""^** °' of mortmain, and of the restrictions which limit the power of making gifts and bequests for charitable and religious uses." In their Report (c) the Committee stated their opinion to be that " land left to charities with a direction to be sold, and all virtually personal property, do not fairly come under the intent of that statute." TheEeport concluded in thefoUowingwords: — "Although your Committee do not feel authorized by the terms of reference to report in favour of any specific alterations of the laws of mortmain, they feel bound to state, from an attentive consideration of the evidence submitted to them by witnesses whose means of information and authority must be held to be great, that the operation of the laws is most unsatisfactory, leads to doubt, expense, uncertainty, and litigation, and frequently defeats good and pious purposes which the present aspect of the country would induce all men to wish fulfilled ; while, from the existing facilities for evasion, they cannot be regarded as serving the main purpose for which they are supposed to be maintained by securing the heir from the unexpected alienation of property to which he might reasonably have hoped to succeed." In the year 1852 another Select Committee of the Select_ House of Commons was appointed, " to consider the policy 1852. of extending the Law of Mortmain so as to include personal estate, and generally whether any alteration should be made in the law as it affects testamentary or other dispo- sitions in favour of religious, charitable, or permanent objects." In their Report(c^) they stated as follows : — " Inde- pendently of any consideration concerning the degree of restriction which ought to be imposed on alienations of property for charitable purposes, great evils arise from the somewhat technical distinctions in the law as they affect different kinds of personal estate. It is in evidence (c) Pari. Papers, 18U, X. 50D. (d) Pari. Papers, 185?, XIII. 7. B 18 MORTMAIN AND CHARITABLE USES ACT, 1 89 1. before your Committee that scarcely any property can be safely disposed of where legacies are given to charities, and the property is considerable, without a suit in Chancery. As such a suit involves an investigation of the relative amounts of the different descriptions of property, the expense is necessarily large, and usually falls upon the residuary legatee, who has also to pay the charitable legacies themselves. Your Committee are of opinion that these distinctions should be abolished entirely, and that the same law should be enacted with respect to all descriptions of personal estate given for charitable purposes, and whether it be directed to be laid out in land or not." Popular In 1860 the Popular Education Commission stated in Education their Report that " it seems reasonable, if the State desires CJommissiOD. ^ . , to encourage educational foundations, that the decisions which extend the prohibition of devises in mortmain to mortgage-money, and to the price of land ordered by the will to be sold, should be repealed." Bill introduced A Bill for the amendment of the law was introduced "" ■ into Parliament in 1854 and again in 1865, but its pro- visions were long and cumbersome, and it was not pro- ceeded with beyond the Committee stage. Morim. and The Mortmain and Charitable Uses Act, 1888, («) was, Act'i888^^^ as has already been stated, so far as the present subject is concerned, a mere measure of consolidation, making no change in the substance of the law. Mortm. and The Bill which has now become law under the name Act"i89i!^^ of the Mortmain and Charitable Uses Act, 1891, was first introduced by Mr. Cozens Hardy, Q.C., into the House of Commons on the 6th of May 1891. It was afterwards dropped in that House, and on the 29th of the same month was introduced by Lord Herschell into the House of Lords. On the 18th of June, when it was read a second time, a debate of a friendly character took place upon it, but it encountered no opposition, and ultimately passed the Upper House on the 14th of July. In the Lower House it passed through all its stages (c) See App., post. INTKODUCTION. 19 without opposition of any kind. It received the royal assent on the 5th of August 1891. Before passing on to notice the particular provisions of Principles on the new Act, and the effect of them, it is worth while to ^oc'fedt.''* consider briefly the views to which the Legislature gave effect in passing it. Of the three alleged reasons for the Act 9 Geo. II. Protection of c. 36, (j) it will be remembered that the first was the p^.evintion"of protection of the families of testators, and the second the death-bed prevention of death-bed charity. It has been shown (g) " ^" ^' that that Act did not adequately or effectually accomplish either of those objects. There can hardly be thought at the present day to be any special necessity for compelling testators to provide for their families. Nor can it be supposed that the evil results of unrestricted death-bed charity in this country have been, or are likely to be, sufficiently serious to call for remedial legislation. But even if either of those matters required to be dealt with, it is obvious that it should be by specific enactment, and not by an Act relating only to gifts to •charity. Accordingly, in framing the new Act, the Legis- lature has ignored them. The third reason arose from the applicability of the Principle mortmain principle to charitable trusts vested in bodies f^^d from" of trustees. Opinions may differ as to the degree of im- tecoming portance which should be attached to this. The particular institution which the legislators of 1736 had before their minds has not justified the sinister ap- prehensions which they entertained in respect of it. Notwithstanding that Queen Anne's Bounty was, in the year 1803, specially exempted (/i) from the operation of 9 Geo. II. c. 36, it has not engrossed an unduly large quantity of land. It may be that there is no probability that, if the mortmain restrictions were removed, the balance of power in this country would be disturbed. Moreover, the existing exemptions from that law are so (/) Pee ante, p. 4. {g) Ante, pp. 4, 5. [h) The exemption was granted by 43 Geo. III. c. 107 20 MORTMAIN AND CHARITABLE USES ACT, I 89 1. numerous that, to a considerable extent, the restrictions have been removed already ; and recent legislation has rendered the sale of charity land, which was formerly almost impossible, now comparatively easy. It must be added that the Select Committee of 1844 reported that the dread of land becoming inalienable was not, in their opinion, a reason of sufficient urgency to justify the retention of the mortmain law. On the other hand, the abolition of all restriction on the holding of land by charities would lead logically to the repeal of the whole Law of Mortmain. A principle upon which the law has proceeded for many centuries would in that case be reversed ; and results of a wide and far- reaching character would be involved. Again, the Law of Mortmain itself has produced no hardship. The principle upon which it rests, that land should, as far as possible, be alienable, has scarcely been criticised. The real complaint has not been against the Law of Mortmain, but against the mode in which the policy of it was applied to charities. Pieserved by The Mortmaia and Charitable Uses Act, 1891, does " ' not in any way invade the mortmain principle. It proceeds upon what may be briefly described as the plan of paring down the restrictions on the disposition of property to charitable uses to the bare requirements of that principle. It was, in the first place, urgently necessary that the Act should deal in some way with the array of decisions as to the meaning of "interests in land." But it was found possible to go much farther than merely to engraft upon them some reconciling provision. Principle only The mortmain principle, that land ought not to be Und?' ^ ° permitted to become inalienable, does not require that the restrictions should extend beyond land. There is no more reason why a charity should not be permitted to hold " impure personalty," or " personalty savouring of realty," than there is why it should not be allowed to take a sum of money. If the receipt of a pecuniary legacy which is paid out of the proceeds of sale of real estate is INTRODUCTION. 21 objectionable, it is equally objectionable to allow a charity to receive a legacy paid out of money at the testator's bank. The Select Committee of 1852 recognised this, and ventured to propose that the restrictions should be extended to every kind of property. (-i) Such a proposal would find few advocates now, but the alternative is that the restrictions should be confined to land alone. There is, indeed, no point at which a line can properly be drawn, except between land and not-land. It has, however, been generally admitted that the Indirect acquisition by a charity of an " interest in land " is not fand,^^' '°° " in itself objectionable. The professed reason for thus ex- tending the restrictions was that, otherwise, land might be indirectly acquired.(^-) Even if we admit the necessity of preventing this indirect acquisition of land, the provisions of the old law went too far. Not only did they include such interests in land as mortgages or charges under which land might, with more or less probability, be acquired, but they extended also to many kinds of property the possession of which could never lead to the acquisition of land. In the common case of a testator directing his property, consisting partly of land and impure personalty, to be sold, and the proceeds applied for a variety of purposes, including the payment of a charitable legacy, the charity could not by any process acquire the land. Another instance is furnished by the cases in which legacies of securities on dock, harbour, or turnpike tolls, or on rates, were held to fail as being interests in land. The chance of acquiring land under a legacy of this kind is inconceivably remote. But, in truth, the risk of land being indirectly acquired under a charitable legacy is a matter of small importance. It certainly did not justify the elaborate precautions taken to prevent it. In framing the new Act the Legislature has acted upon Curtailment of ° definition of "land." (i) See ante, p. 18. (i) See tlie judgment of James, L.J., in Attree v. Ham, 9 Ch. D. at pp. 345, 348. 22 MOKTMAIN. AND CHAEITABLE USES ACT, 1 89 1. Distinction between pure and impure personalty removed. Subsequent parts of Act confined to wills. the principle that, as regards any property, except actual land, the power of disposition in favour of charity ought to be wholly unrestricted. And in place of making any effort to prevent the indirect acquisition of land, it has adopted the more generous view that the risk is one which may safely be disregarded. Sect. 3 (I) of the Act accordingly repeals the definition of " land " contained in sect. 10 of the Mortmain and Charitable Uses Act, 1888,(m) and substitutes for it a new definition, which extends only to lands, tenements, and hereditaments, corporeal and incorporeal, and expressly excludes " money secured on land or other personal estate arising from or connected with land." The effect of this provision is to remove the distinction between personal property which is an interest in land and pure personalty. The meaning of the expressions " impure personalty " and " personalty savouring of realty '' will in a short time have an historical interest only, and the whole body of decisions with regard to them will at the same time be rendered obsolete. In future, any property, except lands, tenements, and hereditaments, and personal property directed to be laid out in them, may be assured to charity either for value or as a gift, and either by deed or will, without restriction of any kind. This is the only respect in which the new Act affects an assurance in favour of charity by instrument inter vivos. From the point of view of logical completeness it is pos- sibly a defect that the subsequent portions of the enact- ment are concerned solely with gifts by will. The conditions required by the Mortmain and Charitable Uses Act, 1888, to be satisfied in the case of purchases are not of an oppressive character. Indeed, one of them, the necessity for enrolment, may well be thought to be beneficial. The same observation applies to the like requirements in the case of gifts by instrument inter vivos. (0 Post, p. 31. (m) See App., post. INTRODUCTION. 23 The liability to subsequent avoidance to which, such gifts are subject in case the donor dies within a limited period (m) can hardly be said to be a necessity, and is certainly not in accordance with the principle which the new Act applies in the case of wills. But the cases are rare in which this liability to subsequent avoidance takes practical effect, and the provision, however indefensible in theory, has not in fact been found to be oppressive. Moreover, the provisions of the Act with regard to wills render it possible by simple means to obviate the result of any such avoidance of a prior gift by deed. The truth is, that the real ground of complaint has always been the way in which the legislative provisions afEected gifts by will. It will be remembered that the requirements by the Mortmain and Charitable Uses Act, 1888, rendered necessary to the validity of a charitable assurance are of such a nature as to be incapable under any circumstances of being satisfied by a will ; (o) conse- quently, under that Act, a gift to charity by will of any of the kinds of property to which the Act applied was void. In thus avoiding the gift, the Legislature again over- stepped the requirements of the mortmain principle. Even if the possession of land by a charity ought to be restrained, it is not necessary that the gift should be rendered wholly void. The principle is satisfied if the restriction is confined to the holding, and not extended to the acquisition, of land. The new Act accordingly proceeds upon the view that, Provisions as if the possibility of land being improperly retained is ° ^' ^' sufficiently guarded against, there is no reason why the charity should be altogether deprived of the benefit which the testator intended for it. This is dealt with by sects. 5, 6, and 7 of the Act. It is, in the first place, expressly provided that both in the case of a devise of land {p) and in the case of a (n) Mortm. and Charit. Uses Act, 1888, sect. 4, sub-ss. (7) and (8) : see App., post. See ante, p. 8. (p) Post, p. 5G. 24 MORTMAIN AND CHARITABLE USES ACT, I 89 1. bequest of personal estate to be laid out in the purchase of land (q) the gift shall be valid. Thus, the double incapacity which existed under the previous law — namely, the incapacity on the part of the donor to give, and the incapacity on the part of the charity to take — is removed. The will having operated to pass the property the subject-matter of the gift, the Act proceeds, in the case of a devise of land, to enact a peremptory direction for the sale of the land within a limited period,(r) and, in the case of a bequest of personalty subject to a direction to lay it out in the purchase of land, to strike that direction out of the will.(s) With the view of insuring compliance with the direction for sale, the machinery of the Charity Com- missioners is employed, and the duty of seeing that the sale is carried into effect with reasonable speed is imposed upon them.(^) Power to Sect. 8 contains an important provision empowering retention or '^^ Court or the Charity Commissioners to authorize the acquisition of retention of land devised, or the application in the *° ■ purchase of land of a legacy directed to be so laid out, in cases in which the land is required as the site or part of the site of the charity. Application of The application of the Act in the case of wills is confined (u) to the wills of testators dying after the date of its passing,(a;) and sect^ 10 (y) contains a saving clause, which is perhaps superfluous. Summary of The effect of the Act may be summed up in the following way : — It renders all kinds of property, except lands, tene- ments, and hereditaments, capable of being disposed of in favour of charity as freely as to an individual. As regards lands, tenements, and hereditaments, the restrictions imposed by the Mortmain and Charitable (2) Post, p. 82. (r) Sect. 5, post, p. 55. (s) Sect. 7, post, y. 81. («) Sect. 6,posi, p. 72. (u) Sect. 9, 2>ost, p. 93. (x) 5 Auf;. 1891. (1/) Post, p. 93. Act. effect of Act. INTRODUCTION. . 25 Uses Act, 1888, on assurances inter vivos remain un- affected. Gifts by will to charity are rendered valid in every case, but where the subject-matter of the gift consists of lands, tenements, or hereditaments, they must be sold ; and where the gift is of personalty subject to a direction to lay it out in the purchase of lands, tenements, or hereditaments, that direction cannot be carried out. In every case the benefit of the gift is retained by the charity. The new Act in no way affects the restrictions on the Devisee to acquisition of land by corporations imposed by part i. corporations. of the Mortmain and Charitable Uses Act, 1888,(8) now substituted for the old Mortmain Acts. Charitable corporations have, in common with other corporations, always been subject to those restrictions. Now that land has been rendered capable of being devised to a charitable use, it is important to remember that, where a corporation is constituted the charity trustee, a licence in mortmain will be required. Most of the large charitable corporations have, under their charters or Acts of Parliament, licences to hold land in mortmain amply suflScient for all purposes for which under the provisions of the present Act they are likely to be re- quired. Another point should also be noticed. The old mortmain Effect of Acts restricted the acquisition by corporations of no kind aefini'tion of of property except land. "land" on The effect of the definition of " land" contained in sect. "^"'P"^ '°°^- 10 of the Mortmain and Charitable Uses Act, 1888, was to extend (no doubt by an oversight) these restrictions to " interests in land." The present Act, by repealing that definition, restores the mortmain law to the position which it previously occupied. For the provision introduced in the Act for the com- Precedent for pulsory sale of land devised to charity, there is precedent ^"l^pXory'' even within the region of charity law. sale. (») See App., post. 26 MORTMAIN AND CHARITABLE USES ACT, I 89 1. Under 33 & 34 Vict. c. 84, charity moneys are authorized to be invested on mortgage of land, but it is provided that any land acquired by virtue of such an investment shall be " held in trust to be sold and converted into money, and shall be sold accordingly." Simplification Among incidental' results produced by the Mortmain °[^^dministra- a,nd Charitable Uses Act, 1891, may be mentioned the great simplification which will be effected in the ad- ministration of the estates of testators who have made charitable devises or bequests, and the removal for the future of the necessity for inserting in a will containing gifts of this kind any direction for the marshalling of assets. Questions Various points occur upon the Act which will, at some arising on Act, ^jjjjg or other, call for judicial decision. It is not necessary to refer to them here, but the most prominent of them are discussed in the notes to the sections under which they arise. The Mortmain and Chabitable Uses Act, 1891. (54 & 55 Vict. c. 73.) An Act to amend the Mortmain and Charitable Uses Act, 1888, and the Laiv relating to Mortmain and Cliaritable Uses. {a) \5th August 1891.~] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Com- mons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited as the Mortmain and SECT. i. Charitable Uses Act, 1891. Short title. (a) The subject-matter of this Act is the same as that of Subject- part ii. of the Mortm. and Charit. Uses Act, 1888 (see App., ™*"<'''- post) — namely, the restrictions which the law imposes on the assurance of certain kinds of property in favour of charity. These restrictions were first imposed by an Act (9 Geo. II. 9 Geo. II. 0. 36) passed in the year 1736, which has been commonly, and '^' not inaccurately, known as the Statute of Mortmain : see per Jessel, M.R., in Luckraft v. Pridliam, 6 Oh. D. at p. 214. The Act of George II. was from time to time amended, the amendments relating chiefly to the time for enrolment. The amending Acts were 9 Geo. IV. c. 85 ; 24 & 25 Vict. c. 9 ; 25 & 26 Vict. c. 17 ; 27 ) (a) ThLs Act is printed in the App., post. (6) The repealed definition was contained in sect. 10 of the Repealed Mortm. and Charit. Uses Act, 1888. It was as follows :— '^^*'"'*'™- " Land " includes tenements and hereditaments corporeal and incorporeal of whatsoever tenure, and any estate and interest in land." The repealed Act, 9 Geo. II. c. 36, contained no definition of land, but sect. 3, which rendered assurances not complying with the provisions of the Act void, was expressed to apply to "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, tene- ments, 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." The definition contained in sect. 10 of the Mortm. and Charit. Uses Act, 1888, was taken from sect. 2 of 25 & 26 Vict. c. 17, which was one of several Acts passed for extending the time for enrolment under 9 Geo. II. c. 36 : see ante, p. 27. In order to make plain the extent and importance of the General effect change effected by the present section it will be necessary to °^ ^®°'- consider what kinds of property fell within the repealed 32 MORTMAIN AND CHARITABLE USES ACT, I 89 1. Marshalling. SECT. 3. definition, and whicli of them are included in the definition now substituted for it. This is dealt with infra. It will be seen that very many kinds of property which were included in the old definition are excluded from the new. As regards the kinds of property thus excluded it has been stated {cmte, p. 29) that the effect of the present section is to take them for all purposes out of the operation either of the Mortm. and Oharit. Uses Act, 1888, or of this Act. It will be seen hereafter {post, p. 54) that a further result of the section, taken in connection with the other provisions of the Act is, as regards the wiU of a testator dying after the passing of the Act (see sect. 9, post), to leave no room for any question as to marshalling assets, and to render it unnecessary to insert a marshalling direction in any future will containing charitable gifts. A great simplification in the process of administering the estates of testators who have left charitable legacies is at the same time efiected : &ee post, p. 52. One other result requires to be mentioned. The restriction.s imposed by the old Mortmain Acts on the acquisition of land by corporations extended only to lands and hereditaments. Those Acts were repealed by sect. 13 of the Mortm. and Charit. Uses Act, 1888 (see App., post), and part i. of that Act was substituted for them. The introduction of the defini- tion of land contained in sect. 10 of that Act had the efiect of extending the disabilities to which corporations were subject to " interests in land," and thus to introduce the whole body of case law on that subject into the domain of mortmain, properly so called. As the Mortm. and Charit. Uses Act, 1888, was intended to be (except in one or two particulars) a purely consolidating Act, this extension of the Law of Mortmain was probably an oversight. The present section has the effect of restoring the Law of Mortmain to the position in which it stood previously to the passing of the Mortm. and Charit. Uses Act, 1888. Adminietra- tion. Corporations. Property formerly not disposable to charity. Interest in land. Property ivithin Definition. A great number of cases were decided as to the kinds of property to which the restrictions on the powers of disposi- tion in favour of charity imposed by 9 Geo. II. c. 86, and continued by the Mortm. and Charit. Uses Act, 1888, extended. The decisions arose mainly in connection with the expres- MEANING OF "LAND." 33 sion '' estate and interest in land," which occurred in the Act SECT. 3. of George II., and was adopted by the Mortm. and Charit. Uses Act, 1888. In many instances they reached an extreme degree of complexity. The law was further complicated by the unnecessary use of " impure the words " impure personalty " and "personalty savouring of P^''*™*'ty'" ^®^^^y- savouring of It was considered that everything which could be brought realty." within these expressions fell under the legislative prohibitions. But as they did not occur either in the Act 9 Geo. II. c. 36, or in the Mortm. and Charit. Uses Act, 1888, no useful pur- pose was served by the employment of them, and of late years they have somewhat fallen into disuse. Most of the cases were decided on the Act of George II., Cases chiefly but as the Mortm. and Charit. Uses Act, 1888, was (so far as °" ^ ^eo. II. regards the subject now being dealt with) a mere measure of consolidation, reproducing, so far as material, the very language of the preceding enactment, they became equally applicable to that Act. Por a more detailed examination of the decisions than is here attempted, reference is made to Tudor's Charit. Trusts, pp. 398—419. The cases which have been decided since that work was published are incorporated in the present note. Generally, it may be said that the present section excludes Property from the definition of " land " every kind of property which ^'•'I'l' W<'- had been held to be an " interest in land " or " impure person, alty " or " personalty savouring of realty,'' thus sweeping away the whole body of decisions on this subject. " Land " both in the Mortm. and Charit. Uses Act, 1888, and in this Act now includes nothing except lands, tenements, and hereditaments. It was in some cases attempted to be argued that, under the Test under old law, a gift to charity was good if the charity could not ■ become possessed of land under it. It became, however, clearly settled that this was not the test, but that in every case the question was, what was the nature of the testator's interest in the property : Ashworth v. Munn, 15 Oh. D. at pp. 371, 373; Re Watts, Gornford V. Elliott, 29 Ch. D. at p. 952 ; and see Brooh v. Badley, 3 Ch. 672. The present section expressly excludes from the definition of Test under land " personal property arising from land." presen c . These words include all cases in which the pi-operty which C 34 MORTMAIN AND CHARITABLE USES ACT, I 89 1. SECT. 3. left the donor was land, but the interest which ultimately ■ passes to the charity is money — as, for instance, where land is devised upon trust to sell and to pay a charitable legacy out of the proceeds. The test, therefore, now is, not what was the nature of the property in the hands of the donor, but what is the nature of the interest which the charity is intended to receive: see further, post, p. 62. The possibility of a charity acquiring land by means of a gift cannot be taken into consideration in determining its validity. Land. Both the Act 9 Geo. II. c. 36, and also, of course, the Mortm. and Oharit. Uses Act, 1888, applied to land of any tenure, whether freehold, copyhold {Arnold v. Chapman, 1 Ves. Sen. 108 ; Doe v. WaUrton, 3 B. & Aid. 149 ; and see Browne v. Ramsden, 2 Moo. 612), or leasehold : Att.-Gen. v. Graves, Amb. 165 ; Att.-Gen. v. Tomkins, ibid. 216 ; Johnston v. Swann, 3 Madd. 457; Paice v. Archbishop of Canterbury, 14 Ves. 364; Bunting v. Swrgent, 1 3 Ch. D. 380. The present section expressly includes land of any tenure. Bents and A devise of the rents and profits of land is in many cases a profits. devise of the land. It was accordingly held, under the old law, that such a devise when made in favour of charity was void : Att.-Gen. v. Lord Weymouth, Amb. at p. 24. Rents and profits, in cases in which they are construed to mean the land, would no doubt be held to be land within the meaning of the present section. The devise, however, would no longer be void ; but the land passing by it would require to be sold under sects. 6 and 6 of this Act, post. Under the old law, a bequest to charity of the rents and profits of land for a limited period was also void : Thomber v. Wilson, 3 Dr. 245, 4 Dr. 350. The same conclusion was arrived at in a case where the will contained a direction for the payment to charity of a certain sum out of the rents and profits of land : Eidgway v. Wood- house, 7 Beav. 437. It is conceived that the rents and profits of land, except in the cases in which they are equivalent to the land, or a sum out of such rents and profits, are " personal estate arising from or connected with land " within the meaning of the present section. In that case they are expressly excluded from the MEANING OF "LAND." 35 new definition, and may henceforth be assured in favour of SECT. 3. charity without restriction. " Arrears of rent could always be bequeathed to charity, for An-ears of " rent when due is in the nature of fruit fallen ; it is severed '^° ' from the land ": Edwards v. Hall, 6 De G. M. & G. at p. 94 ; see also Brook v. Badley, 4 Eq. lOG, affirmed 3 Ch. 672, and Thomas v. Roicell, 18 Eq. 198. A bequest in favour of charity of the proceeds of sale of real Proceeds estate (Trustees of the British Mvseum v. White, 2 S. & S. 594 ; °^ i^^®"" Waite V. Webb, 6 Madd. 71 ; Incorporated Church Building Society v. Coles, 5 De G. M. & G. 324 ; Robinson v. Robinson, 19 Beav. 494), or of a legacy out of (Page v. Leapingwell, 18 Ves. 463; Gibbs v. Rumsey, 2 V. & B. 294; Jones v. Mitchell, 1 S. & S. 290) or the residue of (AU.-Gen. v. Weymouth, Amb. 20) the proceeds of sale of real estate, or of a legacy to be raised out of real estate {Lioaroft v. Maynard, 3 Bro. C. C. 233), was formerly void. The present section expressly provides that land shall not Effect of include " personal estate arising from or connected with P'^^^'^'' ^^'''• land." These words are wide enough to include proceeds of sale : see ante, p. 34. Where, therefore, the charity obtains, 'under the assurance, proceeds of sale only, the case is excluded from the section. Thus, a legacy directed to be paid to charity out of the proceeds of sale of real estate may in future be paid without any restriction whatever. A charity may, however, be placed in a position in which it Charitycannot might, if it were an individual, elect to take the land unsold, take land This would be so if land were assured upon trust to sell and to pay the proceeds to charity simpliciter. So also in the case of a gift to charity of the proceeds of sale and conversion of real and personal estate remaining after payment of debts, funeral expenses, and legacies, if the payment of the debts, expenses, and legacies had not rendered necessary a sale of the land. Similarly, too, where only a share in such residue is given to charity, subject, however, in this case, to the concur- rence of the persons interested in the other shares. It is to be observed, however, that the section excludes only " personal estate arising from or connected with land." If, then, the assurance has the effect of passing to the charity, not the proceeds of sale, but the land itself, it is no longer an assurance of " personal estate arising from land." 36 MOETMAIN AND CHARITABLE USES ACT, I 89 1. SECT. 3. The exercise of a right to direct the trustees to convey the ~~" land in its unsold state in effect strikes out of the assurance the trust for sale. After that process has taken place the assurance is not an assurance of "personal estate arising from land " within the meaning of the excluding words of this section. Practically, therefore, a charity cannot elect to take the land unsold. The only result of its so doing would be, in the case of an assurance inter vivos, to render the assurance void unless it satisfied the requirements of the Mortm. and Charit. Uses Act, 1888, and, in the case of a devise, to substitute the imperative directions for sale contained in sects. 5 and 6 of this Act for the trust for sale and ancillary provisions contained in the will. Sale directed There was formerly some conflict of authority as to whether bypnorinstru- ^^j^g proceeds of real estate directed to be sold by a prior will law. could, so long as the sale had not taken place, be bequeathed to charity. In Att.-Gen. v. Harley, 5 Madd. 821, it was held that it could not. This view was dissented from in Shadholt v. Thornton, 17 Sim. 49 (more fully reported 13 Jur. 507), and Marsh v. Att.-Gen., 2 J. &H. 61. The question was set at rest by Brooh v. Badley, 3 Ch. 672, by which Att.-Gen. v. Harley was supported and Shadholt v. Thornton and Marsh v. Att.-Gen. overruled. In Brooh v. Badley (at pp. 673, 674) Lord Cairns explained the principle upon which the cases proceeded, as follows: — " If a testator devises his real estate to be sold, and the proceeds paid to A. B., and A. B. subsequently makes his will, and either devises those proceeds by name or devises all his property to charity, the proceeds of the sale of that real estate will not go to the charity, and the bequest of the second testator to that extent is invalid. That is not matter in con- troversy at the present day. It ha,s, indeed, been suggested as. the reason for this, that the second testator, or those who claim under him, might, instead of having the land sold, insist upon taking it in its unconverted form, and thus the charity might become the actual possessor of specific real estate. But this cannot be the true reason ; for if a testator demises his land to be pold, and the proceeds given, not to one person, but to four persons, in shares, and if one of those persons afterwards makes his will and gives either his share of the proceeds or all -MEANING OF "LAND." 37 his property to chanty, the position of that second testator SECT. 3. with regard to the estate which is to be sold is, in substance, that of a person who has a direct and distinct interest in land. 'Che estate is in the hands of trustees, not for the benefit of those trustees, but for the benefit of four persons between whom the proceeds of the estate are to be divided when the sale takes place. It may very well be that no one of those four persons could insist upon entering on the land, or taking the land, or enjoying the land, quel land, and it may very well be that the only method for each one of them to make his enjoyment of the land productive is by coming to the Court and applying to have the sale carried into execution, but nevertheless the interest of each one of them is, in my opinion, an interest in land ; and it would be right to say in equity that the land does not belong to the trustees, but to the four persons between whom the proceeds of sale are to be divided. If the cases of Marsh v. Att.-Gen. and Shadbolt v. Thoi-nton axe at variance with these principles, then I am unable to follow those authorities." See also Aspinall v. Bourne, 2iJ Beav. 462; Lucas V. Jones, 4 Eq. 73 ; Gadhitrij v. Smith, 9 Eq. at p. 43 ; Ashworth v. Munn, 15 Ch. D. at p. 371; Be HilVs Trusts, 16 Ch. T>. 173. The restriction extended not only to a gift of the proceeds Share of mixed of a sale directed by a prior instrument simplioiter, but also to a gift of a share of a legacy out of a mixed fund created by a prior instrument, and consisting partly of the proceeds of sale of real estate, and partly of pure personalty : Brook v. Badley, sup. Thus, a mortgage of a life or reversionary interest in a mixed fund subject to the trusts of a settlement was held to be an interest in land : Re Watts, Gornford v. Elliott, 29 Ch. D. 947. In such a case the whole interest of the donor in the mixed No apportion- f und created by the prior instrument was held to be an interest ™<="'- in land no part of which could be given to charity There was no principle of apportionment by which so much of the legacy as would be paid out of personalty could be made avail- able for the charity. The case was the same as if the second testator at the time of his death had a sum secured by mort- gage of both real and personal estate. The whole sum was charged on every part of the security, and the Court could not negative the security on the realty, and say that, to a certain extent, the sum was to be secured on the personalty only : 38 MOETMAIN AND CHAEITABLE USES ACT, I 89 1. SECT. 3. Brooh v. Badley, mp. ; Re Watts, Cornford v. Elliott,sup. See " Re Hill's Trusts, 16 Oh. D. 173, where Malins, V.C, directed an apporiionment. Effect of pre- It is conceived that under the present section the prin- sent sect. ciples applicable in cases of this kind are the same as those which we have seen {ante, p. 35) to be applicable where the assurance of the land and the charitable gift are both con- tained in the same instrument. If and so far as the assura.nce of the proceeds of a sale directed by a prior instrument has the effect of passing to the charity merely proceeds of sale, it is an assurance of " personal estate arising from or connected with land " within the ex- cluding words of this section. Charity cannot If and so far, however, as by the exercise of any right of take land. election it is transformed into an assurance of the land, it is not an assurance of personal estate within those words. Here again, therefore, the only effect of a direction to the trustees not to exercise the trust for sale would be, in the case of an assurance inter vivos, to render the assurance void unless it satisfied the requirements of the Mortm. and Charit. Uses Act, 1888, and, in the case of a will, to bring it within sect. 5 of this Act, and to substitute the imperative directions for sale contained in that section and sect. 6 for the trust for sale and ancillary provisions contained in the instrument. Rent-ohavge. A rent-charge, being an incorporeal hereditament and issuing out of land, was within the old definition of land, and is no doubt also within the definition contained in the present section. It has already been stated (ante, p. 34) that rents and profits, except where the assurance of them would he construed to pass the land, or a sum out of rents and profits, are " personal estate arising from land " within the meaning of the present section. Annuity nn- A gift to charity of an annuity which was not connected connected with ^^ji i^j^j -^g^g^ of course, always good : Hmrl of Stafford v. Buckley, 2 Ves. Sen. 171, 178 ; Auhin v. Daly, 4 B. & Aid. 59 ; Att.-Gen. v. Graves, Amb. 157, n. : Waite v. Webh, 6 Madd. 71. Tithes. A devise of tithes in favour of charity was void under the old law : Benton v. Lord John Manners, 2 De G. & J. 675 ; Burr V. jViller, W. N. 1872, 63. Tithes, being incorporeal hereditaments, are probably also within the definition contained in the present section. meaninct of "land. ay Tithe rent-charge stands on the same footing as other rent- SECT. 3. charges : see myra. TithT^^JitT^ It was held in Symonds v. The Marine Society, 2 Griff. 325, charge, that a charitable legacy could not be paid out of the proceeds Growingcrops. of growing crops. In future a case of this kind cannot arise. It is stated hereafter [post, p. 54) that a charitable legacy can now always be paid out of a mixed fund, whatever may be the nature of the specific items from which it was produced. There will therefore be no objection to the payment of a charitable legacy out of the proceeds of growing crops. A specific gift to charity of crops not accompanied by, or implied from, a devise of the land would also, it is conceived, be free from restriction, for the crops, when once severed from the land, are " personal estate arising from or connected with land " within the meaning of this section. Tenant's fixtures, being merely personal chattels, might always Tenant's be bequeathed to charity : Johnston v. A'tvann, 3 Madd. 457, fixtures. 467. Previously to the present Act it was well settled that money Mortgages secured by mortgage of freeholds in fee or for a term (Att.-Gen. °^^ '*''• V. Meyrick, 2 Ves. Sen. 44 ; Att.-Gen. v. Caldwell, Amb. 635 ; Att.-Gen. v. Uarl of Winchelsea, 3 Bro. C. C. 373; Johnston v. Swann, 3 Madd. 457 ; Att.-Gen. v. Harley, 5 Madd. 321 ; Att.- Gen. V. Hurst, 2 Cox 364; Gurrie v. Pye, 17 Ves. 462), or on mortgage of leaseholds {Att.-Gen. v. Caldioell, sup.), or by equitable mortgage, as by deposit of deeds {Chester v. Chester, 12 Eq. 444), even though merely as a collateral security (Alexander v. Brame (No. 2), 30 Beav. 153 ; Lucas v. Jones, 4 Eq. 73; Smith v. Sopwith, W. N. 1877, 208), could not be be- queathed for charitable purposes. Arrears of interest due upon a mortgage of course fell within the same rule : Alexander v. Brame, 7 De G. M. & G. 525, 542. In like manner a charitable legacy charged on land was void : Legacy Arnold v. Chapman, 1 Yea. Sen. 108 ; White v. JSvans, 4 Ves. l^^f^^ °^ 21 ; Currie v. Pye, 17 Ves. 462 ; Leacroft v. Maynard, 3 Bro. C. 0. 233. Indeed, in no case could a sum of money in any way secured by charge on land be bequeathed to charity. Unpaid purchase-money for which there was a vendor's lien Unpaid pur fell within this rule : Harrison v. Harrison, 1 E. & M. 71 ; chase-money. Edwards v. Hall, 11 Hare at p. 22, 6 De G. M. & G. 74 ; but 40 MORTMAIN AND CHARITABLE USES ACTj 189I. SECT. 3, Premium on Judgment debt. Mortgage of " interest in land." Not within preseiit egct. Simple con- tract debt. yhare in partnership. see MiUleton v. Spicer, 1 Bro. C. C. 201, more fuUy stated " arguendo in Att.-Gen. v. Barley, 5 Madd. at pp., 325, 326. So also an unpaid premium for granting a l^as.e ((SAe^AearcZ V. Beetham, 6 Ch. D. 697), thougli'not if it was really rent, {Brook V. Badley, 4 Eq. 106) ; and a judgment debt if and so far as it was a charge on land : GolUnson v. Pater, 2 E. & M. Ml; and see Jeffries v. Alexander, 8 H. L. C. 594. A mortgage of any kind of " interest in land " was, under the old law, itself an interest in land : Re Watts, Cornford v. Elliott, 29 Ch. D. 947, where a sum secured on life_ and reversionary interests in a fund subject to the trusts of a settlement, and consisting partly of money invested on mortgage of land and partly of pure personalty, was held to be an interest in land. See, also, the cases of mortgages of tolls, rates, &c., cited post, p. 41 et seq. ^ The present section expressly excludes from the definition " money secured oh land." ' • , ,^[^ ' The whole of the cases above referred to as to ' rtortgages and changes on land are therefore now rendered inapplicable, .and a mortgage debt secured, or money charged, on land of any ^tenure or on any interest in land may be freely assured to i^harity.- It is noticeable that the expression used by the section is " money secured on land." It is submitted that these words include, not only the mortgage debt, but also the full benefit of all tshe -securities for it, and, in the case of a legal moAgage, of the- legal estate in the- land mortgaged, and in eveiy case the right to realise the. security by foreclosure or, in a proper'; case, by sale. If this were not so, the result would be that, in' the cas6 of an assurance inter vivos, the beneficial interest would pass, but the legal estate would not pass unless the requirements, of the Mortm. and Charit. Uses Act, 1888, were satisfied, whUe, in the case of a devise, the legal estate would become subject to the direction for sale contained in sect. 5 {post), but the beneficial interest could be retained unsold. A bequest of a mere debt was never subject to restriction, even though it might have to be paid out of the proceeds of sale of land : Re Robson, Emley v. Davidson, 19 Ch. D. 156 ; Walmsley v. Rice, 1 Times L. R. 251 ; Re Webb, Palmer v. Webb, 3 ibid. 404 ; cf. Jeffries v. Alexander, 8 H. L. C. 594, and Pox v. Zounds, 19 Eq. 453. A share of a j.artner in a private partnership including land among its assets was, under the old law, an interest in MEANING, or • " LAND." 41 land: Ashtvorthv. Munn, 15 Ch. D. 363; &ti<\ knQ Baxter v. SECT.'S, Broiun, 7 M. & Gr. 198. The reason was that, although the ~" ' "" share of each partner was not a share in any specific asset, or in any specific part of the assets, real or personal, yet the amount due to him in respect of his share was acharge or in- qumbrance on the land forming part of the. partnership assets : Ashworth v. JIunn, sup. at pp. 369, 370, per James, L.J. See also Raymond v. Lakeman,lQ W. R. 67 ; Forbes v. Steven, 10 Eq. at p. 189. The same reason now applies to brin^ a share in a partner- ship including land within the excluding words of the present section, " money secured on land or other personal estate arising from or connected with land." Under the old law the question frequently arose whether Tolls — oM mortgages of tolls were interests ia land, ^^' It was settled that tolls thorough were, not interests in land, but that toUs traverse were incorporeal hereditaments so con- nected with land as to come within the statutory provisions : Knapp V. Williams, 4: Yes. 430,; n.; Re Christmas, Martin -v. Lacon^ 33 Ch. D. at p. 339 \,^Re David, Buckley v. Royal National Lifeboat Institution, ^iCh. D. at p. 35. The distinction was sta.tBd in Att.-Gen. v. Jones, 1 Mac, ik G. at p. 589, where the question arose with rfegard to light- house tolls, in the following words : — " The question then is, the house (i.e., the lighthouse) being clearly real property, for there is no doubt about that, whether the privilege of receiving tolls on condition of keeping up the light is not an incident or ., addition to the income and the profit arising from the house, Or whether it be a totally distinct and independent personal franchise, which in that case would be personalty, and not realty." That tolls traverse were interests in land was first decided in ToUa traverse the year 1798 by Knapp v. WilUamis, 4 Ves. 430, n., where the question was as to a mortgage of turnpike tolls. It is not clear from the report what the security in this case really was. Lord St. Leonards said, in Myers v. Perigal, 2 De G. M. & G. at p. 619, that there was " an actual assignment of the real property on which the tolls were secured." But this seems doubtful : see Re Christmas, Martin v. Lacon, 33 Oh. D. at p. 340. If the mortgage in fact comprised the tolls only, it may still be that they were so intimately connected with land as to be an incorporeal hereditament within the statute. 42 MORTMAIN AND CHARITABLE USES ACT, 1 89 1. SECT. 3. With regard to this, Cotton, L. J., said {Ee Christmas, Martin '-—^ V. Zacon, sup. at p. 341) ; 'Mn that case {Xn(y>p v. Williams) he (Lord Loughborough) considered that tolls for the use of a turnpike road and for the use of what was certainly vested in the trustees, of turnpikes and toll-houses, might be considered as so far connected with the land as to be an incorporeal here- ditament within the statute." ICnapp V. Williams was followed by Att.-Gen. v. Meyrick, 2 Yes. Sen. 44 ; Earl of Stafford v. Buckley, ibid. 171 ; Ashton v. Lord Langdale, 4 De G. & Sm. 402 ; and Tyrrell v. Whivfield, W. N. 1877, 99. A similar decision was arrived at, as regards harbour tolls, by Ion v. Ashton, 28 Beav. 379 ; and, as regards dock tolls, by Alexander v. Brame (No. 2), 30 Beav. 153 ; and, as regards lighthouse tolls, by Att.-Gen. v. Jones, 1 Mac. & G. 574. In Re David, Buckley v. The Royal National Lifeboat Insti- tution, 43 Ch. D. 27, bonds containing mortgages of pro- portionate parts of (inter alia) the tolls charged for passing over certain bridges on land belonging to the trustees, and the approaches to which were partly over land of the trustees, were held to be interests in land. Tolls thorough. The other class of tolls came under consideration in Re Christmas, Martin v. Lacon, 33 Ch. D. 332, where bonds charged on tolls levied on vessels entering and leaving a certain haven were held not to be interests in land. Cotton, L. J., said (at p. 339) : " In my opinion .... you cannot possibly say that this duty is a hereditament within the meaning of 1 he section. It is not in any way inseparably connected with, and certainly not in any way issuing out of) any land. It is a duty which is to be collected by the com- missioners on vessels which may come into the roads or the haven, or in respect of goods which are landed or exported from the haven, or from or to vessels which are in the roads. It is very true that the commissioners have duties to perform, and duties connected with land, and probably that is the reason why the right to claim these tolls was vested in them. But that does not make the tolls in any way an incorporeal heredita- ment so connected with the land as to be within the mischiei of the statute, or within the meaning of the statute.'' Effect of Tolls thorough are, of course, excluded from the present present Boct. ^^^^^^^ Tolls traverse were treated in the cases above cited as having MEAXIXG OF "LAND." -iS been within the statutory provisions because they were inoor- SECT. 3. poreal hereditaments connected with land: see the extracts from the judgment of Cotton, L.J., in Re Christmas, Martin v. Lacon, cited ante, p. 42. See also, as to the nature of such tolls, BiKkeridge v. Ingram, 2 Ves. Jun. at p. 661. The present section includes incorporeal hereditaments, but it expressly excludes " personal estate arising from or con- nected with land." It is submitted that these words are wide enough to include any kind of toll, and that an assurance in favour of charity of tolls merely is no longer subject to restriction. Even if this were not so, a mortgage of tolls would be Mortgages of clearly excluded, as coming within the words of the section, *°"^' " money secured on land." A franchise, such as a right of market or a right to levy Franchise. tolls, would, in many cases, be probably held to be an incorporeal hereditament within the meaning of the pi^esent section. Such a case arose under the old law in Negus v. Coulter, Amb. 367, where a devise to charity of a lease from the Crown of the right to lay chains in the Thames for mooring ships, and of all profit to arise therefrom, was held void. It was held in the year 1804, in the case of Finch v. Squire, Mortgages of 10 Ves. 41, that a moi-tgage of poor rates and covinty rates was rates— old law. an interest in land within 9 Geo. II. c. 36, and bhat there was no solid distinction between that case and Knapp v. Williams, ante, ■p. 41. 1ti Re Harris, Jacson v. Governors of Queen Anne's Bounty, lb Ch. D. at p. 565, Jessel, M.E., said that "the doctrine of Finch v. Squire was that, inasmuch as the rates were chargeable in respect of the ownership of the land, and could be levied by disti ess, they were like rent.'' Finch v. Squire was followed in Thoi-nton v. Kempson, Kay 592. See also Att.-Gen. v. Meyrick, 2 Ves. Sen. 44 ; Earl ofStaffm-d v. Buckley, ibid. 171 ; Rex v. Bates, 3 Price 341. On the other hand, it was decided in Bunting v. Marriott, 19 Beav. 163, that Tothill Fields Improvement Bonds, by which money was secured on charge of rates, were not interests in land. In Re Harris, Jacson v. Governors of Queen Amie's Bounty, 15 Ch. D. 561, the question was with regard to money Secvxred by bond upon police rates. Under the Acts appUcable in that case (2 & 3 Vict. c. 93 ; 3 & 4 Vict. c. 88 ; and 7 & 8 Vict. c. 33) the bond was given by the justices, but the guardians of 44 MORTMAIN AND CHARITABLE USES ACT, I 89 1. SECT. 3. the union, and not the justices, were the authorities to levy the rate. As, therefore, the justices could only pledge moneys to be received by them from other persons, it was held that the security was not an interest in land. In Jervis v. Lawrtnce, 22 Ch. D. 202, a metropolitan vestry^ in whom were vested the powers of commissioners under a suburban Improvement Act, were empowered to rate occupiers and borrow money on the security of the rates. In that case the vestry were the persons who actually levied the rates ; and payment could be enforced either by action or distress. It was held by Bacon, V.C, that a mortgage of such rates was not an interest in land. So also in Re Hallett, Howarth v. Massey, 5 Times L. R. 285, it was held that a Leicester Corporation Bond, creating a charge on a proportionate part of the general district rate, was not an interest in land. Moreover, some of the bonds {i.e., the Dewsbury and Wakefield Corporation Bonds) which in Re Thompson, Bedford v. Teal, 45 Ch. D. 161, and the bonds (Borough of Preston Waterworks Mortgages) which in Re Parher, Wignall v. Park, [1891] 1 Ch. 682, were held not to be interests in land, were charged collaterally on the general district rates. Nevertheless, in Payne v. Esdaile, 13 App. Cas. at p. 628, Finch V. Squire was mentioned without any suggestion that its authority had been shaken. It was followed by Kay, J., in Re Gange, Mummery v. Gauge, Times, 19 Mch. 1889, and the observations of Cotton, L.J., in Re Watts, Cornford v. Elliott, 29 Ch. D. at p. 952, and in Re Christmas, Martin v. Lacon, 33 Ch. D. at p. 342, goto show that it was never overruled. Undei- present Whatever may be the right view of these conflicting decisions, s^<2*- it is abundantly clear that mortgages of, and bonds charged upon, rates of any kind are not within the definition of " land " contained in the present section. They may therefore, in future, be assured to charity without restriction. Profits of In the case of Myers v. Perigal, 2 De G. M. & G. 599, unxier- decided in the year 1852, Lord St. Leonards said (at p. 619) : " It is impossible to deny that the current of modern decisions is against the older cases, and that while there is to be dis- covered an inclination formerly to carry the provisions of the Act beyond the intention of the Legislature, the tendency of modern decisions has been the other way." This tendency manifested itself mainly in the recognition of MEANING OF "LAND." 45 the principle that an interest merely in the profits of an under- SECT. 3. taking was never, whatever might be the nature of the property by the use of which they were earned, an interest in land. The introduction of this principle alleviated to some extent the rigour of the old law. But in many cases the diflSculty of determining whether it was applicable or not led to its proving not always an unmixed benefit. Under the present section, not only do the kinds of property Effect of pre- which were formerly excluded by the application of that ^""^ ^^'''• principle remain excluded, but the series of decisions which led to its establishment are swept away. In Myers v. Perigcd, sup., it was helct that the interests of Shares in com- a shareholder in a company, whether incorporated or not, paces- possessing land merelj' as incidental to its undertaking, was limited to the profits to ax'ise from the undertaking, and was accordingly not an interest in land. The company in that case was a banking company, estab- lished under a deed of settlement, and therefore not incor- porated. But the principle applied d, fortiori in the case of a company incorporated by charter or Act of Parliament, " where the lands are held by the corporation itself, being a body, in theory at least, distinct from the shareholders of whom the company is composed" : see per Lord Oranworth, in Edwards v. Hall, 6 De G. M. ife Gr. at p. 03. This case overrviled Ware v. Cum- herlege, 20 Beav. 503. Shares in the London Gas Light and Coke Co., incorporated by charter {Thompson v. Thompson, 1 Coll. 381 ; Edwards v. Hall, sup.), in the Liverpool Gas Light Co., incorporated by Act of Parhament (Sp>arlingv. Parker, 9 Beav. 450), and in a gas company established by deed (ibid.) were accordingly held capable of being bequeathed to a charity. Similarly, shares in the London Dock Co. {Hilton v. Giraud, 1 De G. & Sm. 183 ; Pieschel v. Paris, 2 S. & S. 384) and in the East and West India Dock Co. {ibid.), and St. Katherine Dock Stock {Walker v. Milne, 11 Beav. 507), all these dock companies having been incorporated by statute ; shares in a dock company established by deed (Sparling v. Parker, 9 Beav. 450) ; stock and shares in various canal companies (Walker v. Milne, 11 Beav. 507 ; Edwards v. Hall, 6 De G. M. & G. 74 ; Re iMugJiam's Trust, 10 Hare 446 ; Tomlinson v. Tomlinson, 9 Beav. 459, and Ware v. Gumherlege, 20 Beav. 503, in both of 46 MOETJUAIN AND CHARITABLE USES ACT, 1 89 1. SECT. 3. which a contrary decision was come to, being overruled ; see also Eowse v. C/Mpnum, 4 Ves. 542, where Bath Navigation shares were held to be interests in land), waterworks companies {Ashton V. Lord Langdale, 4 De G. & Sm. 402 ; Edwards v. Hall, sup.), banking companies {Myers v. Perigal, 2 De G. M. & G. 599 ; Ashton v. Lord Langdale, sup.), railway com- panies (Ashton V. Lord Langdcde, sup. ; Linley v. Taylor, 1 GifF. 67, S.C. on appeal nom. Taylor v. Linley, 2 De G. F. & G. 84) were all held capable of being bequeathed for charitable purposes. So, also, scrip shares in a projected railway company {Ashton V. Lord Langdale, sup.), and even the shares of a com- pany whose business was the purchase and improvement of lands {Entwistle v. Davis, 4 Eq. 272). Upon the same principle, policies of assurance were held not to be interests in land : March v. Att.-Gen., 5 Beav. 433. It is expressly provided by sect. 22 of the Companies Act, 1862 (25 & 26 Vict. c. 89), that shares and other interests of members in companies registered under that Act are personal estate, and not of the nature of real estate. Shares in a cost- book mining company were not ordinarily interests in land : Hayter v. Tiijcker, 4 K. & J. 243 ; and cf. Watson v. Spratley, 10 Ex. 222. See, however, Mm-ris v. Glynn, 27 Beav. 218, where a contrary decision was arrived at ; but this case was disapproved of by Wood, V.C., in Ent- wistle V. Davis, 4 Eq. at p. 275. The case was different if, as sometimes occurs, the mines were vested in trustees, not for the purpose of the undertaking generally, but for the individual adventurers in proportion to their shares : Hayter v. Tucker, sup. at p. 251. Shares in companies of all kinds are of course excluded from the definition of " land " contained in the present section. Shares in cost-book mining companies, where the mines are vested in trustees for the individual adventurers, can hardly be put higher than shares in private partnerships the assets of which include land, in which case they are also excluded from the new definition : see ante, p. 41. Shares in the New River Co. are real estate : Dryhutter v. Policies of assurance. Joint stock companies. Cost-book mining companies. Shares in New Eiver Co. Debentures — old law. Bartholomew, 2 P. Wms. 127 ; Davall v. New River Co., 3 De G. & Sm. 394 ; and cf. Buckeridge v. Ingrami, 2 Ves. Jun. 652. It followed from the rule, that a share in the rents and profits of an undertaking was not, even under the old law, an MEANING OF "LAND." 47 interest in land, that a mortgage or charge on an undertaking SECT. J was also not an interest in land. This was, however, only settled after a considerable conflict of authority. In Wcdker v. Milne, 11 Beav. 507, Lord Langdale held that a Birmingham and Liverpool Junction Canal Bond creating a charge on the undertaking of the company was not an interest in land. That decision was dissented from by Knight Bruce, V.C, in Ashton V. Lord Langdale, 4 De G. & Sm. 402, who held that railway debentures constituting mortgages of the undertaking, and the rates, tolls, and sums of money arising under the Act, were interests in land. The real nature of a railway debenture was explained in Railway Gardner v. L. C. and D. Ry. Co., 2 Ch. 201, decided in 1867. debentures. In giving judgment in that case. Lord Cairns said (at p. 217) : " The term ' undertaking ' is the proper style, not for the in- gredients, but for the completed work, and it is from the completed work that any return of moneys or earnings can arise. It is in this sense, in my opinion, that the ' under- taking ' is made the subject of a mortgage .... the under- taking, so far as these contracts of mortgage are concerned, is, in my opinion, made over as a thing complete or to be com- pleted ; as a going concern, with internal and parliamentary powers of management not to be interfered with ; as a fruit- bearing tree the produce of which is the fund dedicated by the contract to secure and pay the debt.'' Applying the principle thus enunciated, it was held by Malins, V.C, in Holdsworth v. Davenport, 3 Oh. D. 185, that a debenture of a waterworks company in the form provided by sched. C. to the Comp. Clauses Consol. Act, 1845, and by Bacon, V.C, in Re MitcheWs Estate, 6 Ch. D. 655, that a railway de- benture in the like form, was not an interest in land. The same view was expressed by James, L.J., in Attree v. Hawe, 9 Ch. D. 337, who said (at p. 348) that, after Gardner v. L. C. and D. Ry. Co., it was impossible not to prefer the decision of Lord Langdale in Walker v. Milne, 11 Beav. 507, to the decision of Knight Bruce, V.C, in Ashton v. Lord Langdale, 4c De G. & Sm. 402. In Re Yerhury's Estate, Ker v. Dent, 62 L. T. N. S. 65, the debenture was not in the form given in sched. C. of the Comp. Clauses Consol. Act, 1845, but it was charged on the undertaking, and the rates, tolls, and sums of money arising under the company's Acts ; and the conveyance was to 48 MOETMAIN AND CHARITABLE USES ACT, I 89 1. SECT. 3. Other debentures. the mortgagee, " her heirs, executors, administrators, and ' assigns." It was nevertheless held that the debenture was not an interest in land. With regard to debentures other than railway debentures it has been seen (ante, p. 47) that in Holdsworth v. Davenport, 3 Oh. D. 185, Malins, V.C, held that a debenture of a water- works company in the form given in sched. C. to the Comp. Clauses Consol. Act, 1845, was not an interest in la,nd. This case could not, having regard to Om-dner v. L. C. cmd B. Ity. Co., 2 Oh. 201 {ante, p. 47), have been decided otherwise. But in Chandler v. Ho-ioell, 4 Oh. D. 651, Hall, V.C, held that a waterworks mortgage in a somewhat different form, and created, not by a company, hut by town commissioners acting under an Improvement Act, was an interest in land. The ground of the last-mentioned decision was that the debenture was not the debenture of a trading concern : see per Bacon, V.C, in Re Mitchell's Estate, 6 Oh. D. at p. 664. It has been supposed that Chandler v. Howell, sup., was over- ruled by Attree v. Hawe, 9 Ch. D. 837 (see the head-note to that case), but this was not so. Attree v. TTaive did not deal in any way with the distinction drawn by Chandler v. Howell between trading concerns and other undertakings. Chandler v. Howell was, however, not followed in the recent case of Re Parher, Wignall v. Park, [1891] 1 Ch. 682, where it was held that a Borough of Preston Waterworks Mortgage which created a charge on a proportionate part of the " rents, rates, and water- works " which the coi-poration of Preston were authorized to charge, levy, purchase, and make under their Acts was not an interest in land. See also, as to the mortgage of a gas under- taking carried on by a municipal corporation, Re Hatton, Rohson V. Gihhs, 4 Times L. E. 311. In Re Thompson, Bedford^. Teal, 45 Ch. D. 161, questions arose with regard to certain bonds charged primarily on the revenues of waterworks undertakings carried on by the corpora- tion, and collaterally on other funds, and it was not suggested that the charge on the waterworks revenues constituted them interests in land. There, however, the charge was expressly on the revenues of the undertakings only. Debenture Under the old law a debenture creating an actual mort- oreating mort- 00,00, on the land, and not mei'ely a charge on the earnings, gage on land. ^ '= ^^ ^ i,v, ■i.j.-ij t would or course have been an interest in land : see per James, L.J., in Attree v. Hawe, 9 Ch. D. at pp. 346, 347. MEANING OF " LAND." 49 It is clear that under no circumstances can a debenture SECT. 3. fall within the definition contained in the present section. „„. , 7 Where it is a charge merely on the undertaking, it is plainly present sect. excluded, and such vitality (if any) as remained in Chandler V. Hoivdl, sup., must be regarded as now finally extin- guished. A debenture creating an actual mortgage on land is expressly excluded under the words of the section, " money secured on land " : see ante, p. 40. Railway debenture stock, or debenture stock of other com- Debenture panies, created under the Oomp. Clauses Act, 1863 (26 & 27 ^'"'=''- Vict. c. 118), part iii., was not an interest in or charge upon land under the old law {Attree v. Haive, 9 Oh. D. 837), and is, of com-se, equally excluded by the present section. It will be seen hereafter (post, p. 60) that the principle that Charge oa a share in profits was not an interest in land was applied to a ''<"'o"g" ''^''°- bond charged on the borough fund, on the ground that it was only the fioating balance remaining after satisfying a variety of statutory objects which was subject to the charge : He Thompson, Bedford v. Teal, 45 Ch. D. 161. A large number of the cases as to interests in land, particu- Corpora- larly in recent years, have turned upon bonds given by muni- ^~^-,n^e. cipal corporations and other local authorities invested with ment statutory powers of borrowing money and charging it upon a bonds. variety of difierent kinds of property. These powers are frequently conferred by special Acts relat- ing only to the particular authority by which the loan is raised, and the Acts themselves differ widely in scope and language. It is to this fact, combined with the varieties of property frequently charged by the same bond, that the great difliculty which these cases have caused, and the minute and careful investigation which they have required, are attributable. The properties charged by these bonds are most commonly Kinds of all or any of the following : — Real or other property possessed ^]™^gg'/ by the corporation ; the revenues of waterworks, gasworks, or similar undertakings ; the borough fund ; the district fund ; and various species of rates. By way of instance may be taken Leicester 31- per Cent. Redeemable Stock, which in Ee HaMett, Howa/rth v. Massey, 5 Times L. R. 285, was held to be, and Dewsbury Corporation Bonds, which in Re Thompson, Bedford v. Teal, 45 Ch. D. 161, were held not to be, interests in land. The Leicester 3 J per Cent. Redeemable Stock was charged on D 50 MORTMAIN AND CHAKITABLE USES ACT, I 89 1. SECT. 3. all the revenues of the corporation arising from land, under- ■ takings, and other property of the corporation, the borough fund and borough rate, the district fund and general district rate, and the gas and water revenue, and all other funds and rates established and leviable by the corporation for municipal or sanitary purposes. The Dewsbury Corporation Bonds were charged primarily on the revenues of the corporation's waterworks undertaking, and collaterally on the borough fund, the borough rate, the general district rate, and the general water rate. Old law. Previously to the present Act cases of this kind required to be dealt with in accordance with the rules applicable to the several species of property included in the charge. "Where the bond created a specific charge on the real property of the corporation it was an interest in land : Howse v. Chap- man, 4 Ves. 542 ; Rex v. Winstanley, 8 Price 180 ; Walmsleyv. Rice, 1 Times L. E. 251. On the other hand, so far as. the charge was on the revenues of waterworks, gasworks, or similar undertakings (see ante p. 46 et seq.), and also (but as to this there was some doubt, see ante, p. 44) so far as it was on rates, it was not an interest in land. Charge on A charge on the borough fund created by a bond given by a borough fund, municipal corporation acting under its statutory powers was held not to be an interest in land : Re Thompson, Bedford v. Teal, 45 Oh. D. 161, in effect overruling Re Ration, Rohson v. (?i56s, 4TimesL.E. 311. The decision proceeded on the ground that, although the borough fund might be partially fed out of the rents of land, yet under sect. 140 of the Munic. Corpor. Act, 1882 (45 & 46 Vict. c. 50) — and the case was the same under sect. 92 of the Munic. Corpor. Act, 1835 (5 & 6 Will. IV. c. 76)— it was first applicable to a variety of municipal purposes, and only the floating balance became subject to the charge. The case, therefore, fell within the principle already stated, that a mortgage of an undertaking being a mortgage of earn- ings only was not an interest in land. A very small variation of the circumstances was, however, sufficient to render this principle inapplicable. Thus, in Re Holmes, Holmes v. Holmes, 63 L. T. N. S. 477, the bond was, by virtue of the statute under which the loan was raised, charged upon the general property (including land) of the MEANING OF " LAND." 51 corporation. In this, as in the former case, the proceeds of SECT. 3. the property passed, under the Munic. Corpor. Act, into '' the borough fund, and could not, in fact, become available to satisfy the bond in question until the same municipal objects had been provided for. Nevertheless, because the language of this Act was slightly different, and purported, so to speak, to intercept, for the benefit of the bondholders, the income of the corpox-ate property before it reached the borough fund, the bond was held to be an interest in land. Whether a charge on the district fund under the Public Charge on Health Act, 1875 (38 & 39 Yict. c. 55), could under any cir- ^'^^''""^ ^""'^• cumstances be an interest in land was left unsettled, but it was at all events clear that, in order to make it so, it was necessary to show that there was some land coming within the purview of sect. 175 of that Act : Be Thompson, Bedford v. Teed, 45 Ch. D. IGl. It is clear that in no case can a corporation or improvement Effect of pre- bend fall within the definition of " land " contained in the ^^°'' ^^''^• present section. The different classes of property charged by such bonds have ah'eady been separately dealt with. Thus, mortgages of the revenues of waterworks, gasworks, and other undertakings are not included : ante, p. 49. Nor are mortgages of rates (ante, p. H), or mortgages of a borovigh fund : ante, p. 50. A mortgage of the district fund would also be excluded, even if there were land coming within the purview of sect. 175 of the Public Health Act, 1875 (see supra), because a sum derived even from the proceeds of sale of land is expressly excluded under the words of the section, " personal estate arising from land " : see ante, p. 35. Even if the bond created a specific charge on real property, it would still be outside the definition, by virtue of the express exclusion of " money secured on land " : see ante, p. 40. It may therefore be laid down broadly that any kind of corporation or improvement bond can now be unrestrictedly assured to charity. It was held in Chiff v. Cluf, 2 Ch. D. 222, that Metro- Stock of politan Board of Works Consolidated Stock could not be J'^^^^^^Pj^J^"'"'-! bequeathed to charity. It need hardly be said that this deci- sion is no longer law. East India East India Stock was held not to be within the restric- Stock. 52 MOETMAIN AND CHAPJTABLE USES ACT, I 89 1. SECT. 3. tion, even under the old law: Att.-Gen. v. Giles, 5 L. J. ■ Ch. 44. Administra- tion. Extent of failure under old law. Assets not marshalled. Kule of ad- ministration. Administration. Before leaving this part of the subject it is necessary to point out the simplification which the change of the law has effected in the administration of the estates of testators who have left charitable bequests. Under the old law, not only was a gift to charity of any of the kinds of property to which the restrictions formerly extended void, but a gift of residue failed to the extent to which it consisted of the proceeds of sale of land {Durour v. Motteux, 1 Ves. Sen. 820 ; Att.-Gen. v. Tomkins, Amb. 21G ; Hotvse V. Chapman, 4 Ves. 542 ; Curtisv. Hutton, 14 Ves. 537 ; Paice V. Archbishop of Canterbury, ibid. 364), or of mortgage securities or other " interests in land " : Att.-Gen. v. Earl of Winchelsea, 3 Bro. C. 0. 373 ; Johnston v. Swann, 3 Madd. 457; Att.-Gen.. V. Barley, 5 Madd. 321; Att.-Gen. v. Hurst, 2 Cox 364 ; Chester v. Chester, 12 Eq. 444. In the same way a charitable legacy failed to the extent to which, in accordance with the testator's directions and in the ordinary course of administration, it fell to be paid out of any prohibited kind of property : Currie v. Pye, 17 Ves. 462. Moreover, the Court would not, unless the will contained a direction to that efiect, marshal the testator's assets in favour of the charity. Thus, if the testator gave real and personal estate upon trust to sell and pay debts and legacies, and bequeathed the residue to charity, the Court refused to thro-y the debts and ordinary legacies upon the proceeds of the real estate so as to leave the pure personalty for the charity : Arnold v. C/iapman, 1 Ves. Sen. 108 ; Mogg v. Hodges, 2 Ves. Sen. 52 ; Foster v. Blagden, Amb. 704 ; Att.-Gen. v. Tyndall, ibid. 614 ; Tate v. Austin, 1 P. Wms. 264 ; Hobson v. Blackburn, 1 Keen 273 ; Blann v. BeU, 7 Ch. D. 382, and other cases cited in Tudor's Charit. Trusts, p. 58. In the absence of any direction as to marshalling in the will, the rule which the Court adopted was to appropriate the fund as if no legal objection existed to applying any part of it to charity, and thus to hold so much of the charitable legacies to fail as would in that way fall to be payable out of the pro- hibited fund : Williams v. Kershaw, 1 Keen 274, n. ; Fowrdmn v. ADMINISTKATIOX. 5o Goiodei/, 3 My. &. K. at p. 307; Att.-Gen. v. Southgate, 12 Sim. SECT. 3. 77 ; Johnson v. Woods, 2 Beav. 409 ; and see Tudor's Oharit. Trusts, p. 59. If, on the other hand, the will contained a marshalling direc- Extent of tion, it became necessai-y to determine the extent of that marshalling direction. when directed. That was a question of construction, in determining which no regard could be paid to the fact that it depended upon the result how far (if at all) the charitable legacy could take effect : Lewis V. Boetefeur, 38 L. T. N. S. 93, on app. W. N. 1879, 11. A bequest of charitable legacies, followed by a direction that Marshalling they should be paid out of pure personalty, was a direction to teneHcraries marshal as between legatees. In such a case the chai-itable legatees were entitled to be paid out of the pure personalty in pnority to the other legatees ; but such a direction did not show any intention to relieve the pure personalty from its obUgation to contribute rateably to debts and funeral and testamentary expenses, and the costs of administration : Rohinson v. Gelda,rd, 3 Mac. & G. 74(! ; Tempest v. TempeM, 7 De G. M. & a. 470 ; Beaumont v. Oliveira, 4 Oh. 309 ; Re Hatton, Rohson v. Gibhs, 4 Times L. R. 311. The testator might, however, express an intention that his Marshalling assets should be marshalled, not only as between beneficiaries, ^^ expenses but also as between the charities on the one hand, and the other beneficiaries, debts, funeral and testamentary expenses on the other hand, as, for instance, by an express direction that debts, funeral and testamentary expenses should be thrown upon the impure personalty or the impure personalty and the realty {Taylor v. Livhy, 2 De G. F. & J. 84), or that the estate should be so marshalled and administered as to give the fullest possible effect to the charitable bequests {Wigg v. yickoll, 14 Eq. 92), or by any language sufficiently indicative of an intention to this effect on the part of the testator : Wills v. Bourne, IG Eq. 487 ; Miles v. Harrison, 9 Oh. 31G ; Re Fitzgerald, Adolph v. Dolman, 26 W. R. 53 ; Re Pitts Estate, Lacy V. ^toiie, 33 W. E. 653; Re Arnold, Ravenscroft v. Workman, 37 Ch. D. 637 ; and see Tudor's Oharit. Trusts, pp. 60-65. The difficulties which surrounded a charitable bequest ren- Distinguish- dered it necessary in administering a testator's estate to dis- ™g property tinguish between such parts of it as could, and such parts of it charity, as could not, be made available to satisfy the charitable gift. 54 MORTMAIN AND CHARITABLE USES ACT, 1 89 1. SECT. 3. Apportion- ment. Effect of new Act. Marshalling Marshalling direction unnecessary. Rules of ad- ministration. If the will contained no marshalling direction, an apportion- . ment was required for the purpose of determining how much of the charitable bequest would fall in the ordinary course of administration to be paid out of the prohibited fund, and to what extent, therefore, it must abate. If the will contained a direction for marshalling the assets, then other processes were requii'ed to be gone through for the piu'pose of giving effect to that direction to the precise extent to which the testator's intention extended, and no farther. It has been already stated {ante, p. 35) that under the present section proceeds of sale of land can pass to charity under any kind of assurance without any restriction whatever. The same rule, of course, applies to the proceeds of sale of any other kind of property still left within the curtailed definition of land contained in this section. Furthermore, even where the devise is of land within the meaning of the section, it is now perfectly valid, and the only restriction to which it is subject is, that the land which is the subject-matter of the devise must be sold : see sects. 5 and G of this Act, post. Since, then, no gift by will of a testator dying after the passing of this Act (see sect. 9, post) in favour of charity can ever be void, there is no longer any room for the application of the old rule, that assets will not be marshalled in favour of charity. It follows that it will in future also be unnecessary to insert in the will of a testator making charitable bequests any direction as to the marshalling of his assets. In place- of the distinction which it was formerly necessary to make between property which could and property which could not be given to charity, and the consequent apportion- ment of the charitable legacy, and its avoidance or abatement as the case might be, three general rules of administration may now be laid down : — (1) The administration of the estate of a testator who has left charitable beqviests will, up to the point of determining the precise property which the charity is to take, or which is to become subject to the charitable trust, be proceeded with -upon the same lines and subject to the same rules as if the will contained no charitable gift. (2) A pecuniary legacy to charity may always be safely paid. . (3) Property which would, in the ordinary course of ad- ADMINISTRATION. 55 ministration, pass to the charity under the gift, and which is of SECT. 3. such a nature as to fall within the definition of land contained in this section, must be sold in accordance with the provisions of sects. 5 and 6 of this Act. 4. In this Act the word " assurance " shall have SECT. 4. the same meaning as in the Mortmain and Charit- Meaning of able Uses Act, 1888. (a) assurance. , (a) The definition of " assurance " is contained in sect. 10, sub-s. (i.), of the Mortm. and Charit. Uses Act, 1888 : see App., post. It is as follows : — " ' Assurance ' includes a gift, conveyance, appointment, lease, transfer, settlement, mortgage, charge, incumbrance, devise, bequest, and every other assurance by deed, will, or other instrument ; and ' assure ' and ' assuror ' have meanings corresponding with assurance." 5. Land (a) may be assured by will to or for the SECT. 5. benefit of any charitable use,(&) but, except as Land assured hereinafter provided,(c) such land(c?) shall, not- a^charitable withstanding anything in the will contained to goij^^^ *" * the contrary, be sold within one year from the death of the testator, or such extended period as may be determined by the High Court, or any judge thereof sitting at chambers, or by the Charity Commissioners. (e) (a) Defined by sect. 3 of this Act : ante. (b) It has been seen {ante, p. 29) that under the Mortm. Old law. . and Ohaiit. Uses Act, 1888 (reproducing the provisions of 9 Geo.. II. c. 36), none of the various kinds of property which fell within that Act could be assured in favour of charity by wiU. The gift in such a case was wholly void, the charity deriv- ing no benefit whatever from the intended bounty of the te&tator. 56 MORTMAIN AND CHAKITABLE USES ACT, 1 89 1. SECT. 5. If the devise was of real estate, not only was the charitable trust avoided, but even the legal estate did not pass to the trustees {Addlingtonv. Cann, 3 Atk. at p. 155 ; Doe v. Wrighte, 2 B. ;. 36. General dis- ability to devise to coiTJoration removed. Restrictions as regards corporations not removed bypresentAct Devise to corporation requires licence in mortm. Extent of licence required been said that this case " rests on no solid foundation " : per Lord St. Leonards in hyxrporated Society v. Richards, 1 Dr. & W. at p. 306. The Act 9 Geo. II. c. 36, rendered every devise for a charitable purpose, whether to a corporation or not (except in certain exempted cases), void as to both the legal and the equitable interest. The exception in the case of corporations from the general power to devise was removed by the present Wills Act, 7 Will. IV. & 1 Vict. c. 26, which contains no such exception as was contained in 34 & 35 Hen. VIII. c. 5. Although the Mortm. and Charit. Uses Act, 1891, renders devises to charitable uses vaUd, it is quite clear that it does not affect the mortmain restrictions, now contained in part i. of the Mortm. and Charit. Uses Act, 1888, which, as has been stated (ante, p. 58), apply to gifts by will equally with any other form of assurance. It is not arguable that the provision of this section, that " land may be assured by will to or for the benefit of any charitable use," has the effect, in the case of a devise to a corporation, of dispensing with the necessity of a licence in mortmain. In the first place, the scope of the Act is confined to dealing with the particular disabilities created by 9 Geo. II. c. 36, and perpetuated by part ii. of the Mortm. and Charit. Uses Act, 1888 ; and there is nothing in it to suggest an intention on the part of the Legislature to extend it beyond that object. In the second pla«e, the enabling part of the present section extends only to permitting the property devised to pass to the charity. That is not inconsistent with the continued applica- tion of the provisions of part i. of the Mortm. and Charit. Uses Act, 1888, which do no prevent the land from passing to the corporation, but only render the assurance subsequently voidable. It must therefore be remembered that in cases falling under the new Act, where the devise is to a coi-poration, a licence in mortmain will be required. Except, however, where the land is authorized to be retained under sect. 8 of this Act (post), the licence wiU only be re- quired to cover the period elapsing before the sale directed by the present section is carried out. A limited licence in mortmain is often granted by the charter DEVISE TO CORPORATION. 61 or Act of Parliament under which a corporation is established. SECT. 5, In other cases there may be available an existing licence „ . . granted under sect. 2 of the Mortm. and Oharit. Uses Act, licence 1888 : see App., post. available. Most of the large charitable corporations have in one of these ways licences in mortmain sufficient to cover all their probable requirements under the present section. Where there is no existing hcence in mortmain available, it will be necessary to take steps to obtain one under sect. 2 of the Mortm. and Charit. Uses Act, 1888. The licence is usually granted by writ of privy seal or letters Licence, how patent. The latter appears to be the more regular course. It "ot^^'^^- frequently empowers all subjects, whether incorporated or not, to aUen to the licensee within the limits of the licence. A licence in mortmain usually specifies the amount in value of land which may be held under it ; and if it is desired to acquire more land after that amount has been reached, a further licence must be obtained. For this purpose a petition must be presented to the Crown, which will be referred to the Attorney- General or Solicitor-General, who will make a report, upon which the licence will be either granted or refused. For further information on the subject of mortmain and licences in mortmain, see Tudor's Charit. Trusts, pp. 381-385. (c) See sect. 8, post. Power to Under that section the Court or the Charity Commissioners authorize are empowered to authorize the retention of land required for jand. actual occupation for the purposes of the charity. {d) I.e., land assured to or for the benefit of any charitable use. (e) The language of this section is exceedingly wide. It Direction for contains in terms a peremptory direction for the sale within one ^^''' year from the death of the testator (the time being capable of extension), and notwithstanding anything in his will contained to the contrary, of all land " assured by will to or for the benefit of any charitable use." Whenever a will contains a devise of land, and any, even the When smalle.st, interest in such land or the proceeds of sale of it is applicable. given to charity, the land is in some sense " land assured by will to or for the benefit of a charitable use." But it is perfectly clear that this is not the meaning of the words in the present section. It is apprehended that, in determining whether the section 62 MORTMAIN AND CHARITABLE USES ACT, I 89 1. Depends on nature of property passing to charity. SECT. 5. operates or not, the question is, not what was the nature of the property which passed from the testator, but what will be the nature of the property which, when the testator's directions have been carried out and the process of administration com- pleted, or completed so far as necessary, will ultimately pass under the charitable gift : see ante, p. Si. In other words, the point of time to be looked to is the time at which the subject-matter of the charitable gift becomes cleared of all questions of general administration, and is severed, or capable of being severed, from the other parts of the testator's estate, and comes to be held upon the charitable trust alone. If at that time the property passing to the charity is land, or property of svich a nature as to fall within the definition of " land " contained in sect. 3, the direction for sale contained in this section applies to it. If, on the other hand, it is money or other property not falling within that definition, then the section has no application to the case ; and it is immaterial what may have been the nature of the property from which the charitable legacy was derived. This view of the section is confirmed by a consideration both of the scope of the Act and of the provisions of sect. 6 (post). This Act, like the Act 9 Geo. II. c. 36, and like part ii. of the Mortm. and Charit. Uses Act, 1888, extends only to the interest of the charity. There is nothing in it to suggest, and it is impossible to suppose, that it was designed to affect in any way the interest of any other beneficiary under the testator's will. Unless the scope of the Act is to be greatly enlarged, it is necessary to conclude that the present section does not operate until some property within the definition of " land " contained in sect. 3 becomes subject exclusively to a charitable trvist. Again, under sect. 6 (post), land remaining unsold at the end of a year after the testator's death (or any extended period) becomes vested in the official trustee of charity lands, and the Charity Commissioners have imposed upon them the duty of seeing that the sale is effected with reasonable speed. These provisions suggest that the operation of the section is confined to cases in which land has become part of the charity estate, or subject to an immediate charitable trust in such a way as to bring it within the general jurisdiction conferred on the commissioners by the Charitable Trusts Acts. If this were not so, the Charity Commissioners would, in SALE. 63 many cases, be burdened with a considerable part of the gene- SECT. 5. ral administration of the testator's estate, and their jurisdiction ' " would not be confined to property subject only to a charitable trust, but would extend to property in which other persons as well as the charity were interested. It is needless to say that no such extension of their powers was contemplated. Where land passes to a charity or to a charitable use under Specific a specific devise or a gift of residue, it is clear that it will have '^'^^'^s. to be sold under the provisions of this section. Where the land is devised upon trust for sale, and the Trust for bequest to the charity is merely of a legacy out of the proceeds, ^ then, inasmuch as the charity will receive money only, the direction for sale contained in this section will not apply to the case. In this view the present section is consistent with sect. 3, which exclud&s " personal estate arising from or connected with land " from the definition of " land " : see ante, p. 35. If the charity should be, or should become, the sole bene- Charity cannot ficiary, and thus be placed in a position in which it could, if it ,^^° *° '^ ® were an individual, direct the trustees to convey the land to it unsold, it has already been stated {cmte, p. 35) that any such direction given by the charity would merely have the efiect of subjecting the land to the direction for sale contained in the present section, for in that case the property ultimately becoming subject to the charitable trust would be, not money, but land. Shortly, then, the result is that, where there is a trust for sale, the sale must be effected under the testator's will, and not under this section, and the charity cannot elect to take the land unsold. Where the estate given to the charity by the wUl is not Reveraon. immediate, but reversionary or contingent, the application of the principle above stated leads to the conclusion that the direction for sale contained in this section does not come into operation until the estate of the charity becomes an estate in possession. The rule that the section does not require land to be sold Partial until such time as it becomes held upon an exclusively ^" ^"^^ ' charitable trust has of course no application to cases in which, although the charity has not the whole interest in the land, yet the particular interest given to it is itself " land " within the meaning of the definition contained in sect. 3. Thus, a rent-charge is within sect. 3 (see ante, p. 38), and, Ee.it-charge, 64 MORTMAIN AND CHARITABLE USES ACT, I 89 1. SECT. 5. Undivided share. Sale, by -whom to be effected. Devise to chant, institu- tion. Other cases. Extension of time for sale. if- devised to charity, would itself require to be sold under the present section. So, also, where the gift to the charity is of an undivided share in land. The section contains no express provision as to the persons by whom the sale is to be effected, but it is not difficult to gather who those persons must be. The first clause of the present section renders it quite clear that the Legislature intended that the will should be effectual to pass the property in the land devised to the persons who are to hold it "to or for the benefit of the charitable use." The land will therefore, under the first clause of tlie section, pass to the persons pointed out by the will as the persons to hold it upon an immediate charitable trust — that is, to the persons upon whom the duty of executing that trust is cast. Having directed that the property in the land shall pass under the will, the section arrests it in the hands of the persons to whom it so passes, and directs that it shall be sold. Those persons, therefore, are the persons to carry the sale into effect. The persons to sell are, in fact, the persons who will have the duty of administering the proceeds. Where, therefore, there is a direct devise to an existing charitable institution, the trustees or persons acting in the administration of that institution will usually be the persons to carry out the sale. This is consistent with the provision in sect. 6, that the Charity Commissioners are to take all necessary steps for compelling the sale to be carried out by the " administering trustees " : see post, p. 74. But, except in the case of a direct devise to an existing charity, it is apprehended that the persons to sell are the trustees in whom the property is vested by the will. If the view above taken (ante, p. 62), that the application of the section depends on the nature of the property ultimately passing to the charity, is correct, it follows that in a very great number of cases the sale must of necessity be postponed beyond a year from the death of the testator. In such a case it is conceived that an extension of the time for sale would be granted as a matter of course. Other cases, too, may of course occur in which it may be necessary or desirable to apply for an extension of the time for sale. The jurisdiction to extend the period for sale is, by the SALE. 65 section conferred on the High Court, or any judge thereof SECT. 5. sitting at chambers, and also on the Charity Commissioners. ~ Matters relating to the execution of charitable trusts are, by extend time, sect. 34 of the Jud. Act, 1873, expressly assigned to the Chancery Division. Whether the application should be made to the Court or 'Whether the Charity Commissioners is a question which will depend on q'^''j*o,!°" *" the circumstances of each case. Charity In many cases the application for an extension of time will Commiss. form part of an application relating to questions arising in the course of the general administration of the testator's estate either in respect of the charitable devise or otherwise. It will then naturally bo made to the Court : see further, post, p. 69. Where the charitable gift has been finally severed from the general estate, and established, so to speak, on an independent foundation, the fact that the services of the Charity Com- missioners are rendered gratuitously should ordinarily lead the trustees, from motives of economy, to make the application to them. An application in chambers for an extension of time will. Application in unless made in the course of pending proceedings, be by ch^^'t'era. originating summons entitled in the matter of this Act. It is too early as yet to state what the procedure of the Application to Charity Commissioners will be with regard to applications to '-";'*"'.v Com- them. In the meantime, it can only be said that communica- tions in respect to a proposed application should be addressed to the secretary of the Charity Commissioners. The general procedure on applications to the commissioners will be found in Tudor's Charit. Trusts, and the general form of application is given in the same work at p. 797. If no extension of time is obtained, the sale will have to be Efl'ect of carried out in accordance with the provisions of sect. 6 : post. \IJ^a\-." ^'^ It is probable that, under the combined eifect of this section Whether and sect. 6, the trustees have a continuing power of sale, the trustees have . , • 1 • 1 • 1 1 1 continuing provision in this section as to the time within which the sale power of sale. is to be completed being directory only : see post, p. 73. An important question arises with regard to the trusts upon Application of which the proceeds of land sold under the provisions of this proceeds of section are to be held. The section contains no express provision as to this. But it is Trusts to be observed that it expressly enables the land to pass under ^.^ "''^d V^ ^ •' ^ will remain. the devise to the charitable use intended, only engrafting upon E 66 MORTMAIN AND CHAKITABLE USES ACT, 1 89 1. SECT. 5. So far as capable of be- ing effected by money fund. And without purchasing land. Power to authorize retention of land. Gift to existing institution. Other cases. Cyjprh application. that a direction that the land shall be sold. Nor is there anything in the section to destroy the trusts to which the land, if it could have been retained, would have been subject It is submitted, then, that the trusts declared by the will remain if and so far as they can be carried into effect by means of a money fund instead of land. A further limitation must, no doubt, be also imposed. In many cases the trusts of the will may be of such a nature as to be incapable of being carried into effect with a money fund, except by the purchase of land. This would be so if, for instance, the land devised was intended to be used as the site of a charitable institution. If it were permissible to expend the proceeds of sale in purchasing land, it would be possible for the land de\'ised by the testator to be sold one day and re-purchased the next. It is not likely that such a proceeding, adopted for the purpose of defeating the intentions of the Legislature, would be per- mitted. It may be concluded, then, that the trusts of the will if and so far as they involve the purchase of land cannot be carried into effect. It will be remembered that under sect. 8 of this Act {post) both the Court and the Charity Commissioners are empowered to authorize the retention of the land devised where it is re- quired for the site of a charity. In the case of a simple gift to an existing charitable insti- tution, the proceeds of sale will clearly fall into, and become applicable as part of, the general funds of the institution. Where the gift is for the benefit of an existing institution, but subject to special trusts declared by the testator, or where the testator is establishing a new charity, then the trusts declared by the will must be carried out if that can be done by means of a money fund and without purchasing land. If and so far as the trusts cannot be specifically executed, there arises the common case of a fund subject to charitable trusts which cannot be carried into effect. This is, under the ordinary rules of charity law, a simple case for the appUcation of the doctrine of cy-pres : see Att.-Gen. v. Oglander, 3 Bro. C. C. 166 ; Incorporated Society v. Price, 1 J. & Lat. 498 ; Att.-Gen. v. Hicks, Highm. Mortm. p. 336 ; Att.-Gen. v. Glyn, 12 Sim. 84; Att.-Gen. v. Ironmongers' Co., 2 My. rd v. Peynolds, 1 Ph. 185 ; and Willis v. Brown, 2 Jur. 987. See also Tudor's Charit. Trusts, p. 67. Other- wise, where the erection is part of the fabric of the church : ' Adnam v. Cole, 6 Bea'v. 353. LEGACY TO BE LAID OUT IX LAND. 87 A direction to purchase land has been held not to be implied SECT. 7- by the use of the words " endow " or " support " (Re Hedgman, „ „ , ^r Morley v. Croxon, 8 Ch. D. 156; Re Holburne, Coates v. " support," or Mackillop, 53 L. T. N. S. 212 ; see Kirhbank v. Z^wdson, " create " does 7 Price 221), or " create" : Re Be Rosaz, Rytner v. De Rosaz, purcliase. 5 TimesL. R. 606. Thus, a gift for the endowment of an existing, or even a future, church or chapel was always valid : Edwards v. Hall, 6 De G. M. & G. 74 ; Sinnett v. Herbert, 7 Oh. 232 ; see Re Adams, Harle v. Adams, 4 Times L. R. 767. So also a gift to further the preaching and teaching of certain doctrines : Re Moseley, Moseley v. Moseley, 4 Times L. R. 301. The cases in which a direction to purchase land would not, Effect of pre- upon the principles applied in the cases above cited, be held ^^"' ^^ . • 'S , to be implied are, of course, not within the present section. direction. In cases in which, in accordance with the decisions, a direc- tion to purchase land would be held to be implied, the section applies, but with the only result that the will is shorn of that implied direction. A direction to build, establish, or found must therefore, in future, be construed as a direction to build, establish, or found without purchasing land. As to the application of the legacy in cases of difficulty, see post, p. 90. It must be remembered that, under sect. 8 of this Act Power to (post), both the Court and the Charity Commissioners are ^\^1 empowered to authorize the application of the legacy in the purchase of a site. Under the old law it followed as a corollary that, if the Formerly im- . testator's intention was that land should be purchased, nothing material that could render the gift good. It was therefore held to be im- ^^\^ elsewhere. material that the necessary land could be obtained elsewhere {Att.-Gen. v. Tyndall, Amb. 614; Att.-Gen. v. Nash, 3 Bro. C. C. 588; Giblett v. Hobson, 3 My. & K. 517; Bunn v. BoimvM, 1 K. & J. 596 ; Vaughan v.Farrer, 2 Ves. Sen. 182, and Att.-Gen. v. Bowles, ibid. 547, in both of which a contrary decision was come to, being overruled), or that the charity itself possessed land upon which the intended buildings could be erected : Att.-Gen. v. Hyde, Amb. 751 ; Giblett v. Hobson, 3 My. & K. 517. In Booth v. Carter, 3 Eq. 757, a contrary decision was arrived at, but that case has not been followed : Re Watmough's Trusts, 8 Eq. 272 ; Re Cox, Cox v. Bavie, 7 Ch. D. 204. 88 MORTMAIN AND CHARITABLE USES ACT, I 89 1. SECT. 7. Under the new provision the only thing forbidden is the gg.g J ^ ~ expenditure of the legacy in purchasing land, and it is quite sent sect. clear that if that is not done there is no objection to applying it in building upon a site obtained elsewhere or which the charity already possesses. Alternative Under the old law the bequest was supported where a direc- faw'^*"'°~~°''^ tion was given to the trustees to apply the fund either in an unobjectionable manner or in a manner repugnant to the sta- tutory provisions : Mayor of Faversham v. Ryder, 5 De G. M. & G. 350 ; Salusbury v. Denton, 3 K. & J. 529 ; BaUimn v. Baldwin (JSTo. 2), 22 Beav. 419 ; University of London v. Yarrow, 1 De G. & J. 72 ; Re Marmaduke Levitt, 1 Times L. R. 578. Thus, where the bequest was for erecting or endowing a church {Edwards v. Hall, 6 De G. M. & G. 74; Sinnettv. Herbert, 7 Oh. 232), endowing, maintaining, and keeping up a school at a particular place or otherwise for school purposes {Dent V. Alhroft, 30 Beav. 335), or "to support or found a school " {Re Hedgman, Morley v. Groxon, 8 Oh. D. 156), it was held to be valid. So also where there was a mere power to purchase land {Att.-Gen.v. Goddard, T. & E,. 348), or where the trustees had an option to lay out the legacy either in the purchase of land or upon Government or personal security : Sorresby v. Hollins, 9 Mod. 221; Widmore v. Woodroffe, 1 Bro. C. C. 13, n. ; Aft.-Gen. V. Parsons, 8 Ves. 186 ; Curtis v. Hutton, 14 Ves. 537. See also Graham v. Paternoster, 31 Beav. 30, and Re Beaumont's Trusts, 32 Beav. 191. Trustees oouU But, although the legacy was upheld, the trustees were not illegal allowed to apply it under that branch of the option which was alternative. repugnant to the law {Mayor of Faversham v. Ryder, 5 De G. M. & G. at p. 355), and a declaration as to what would be an illegal exercise of the option was inserted in the decree : Att.-Gen. v. Parsons, 8 Ves. at p. 192 ; Garter v. Green, 3 K. & J. 591. But see University of London v. ZaJTOw, 24 Beav. 472, where Romilly, M.R., declined to insert any such declaration. Illegal applica- And an illegal application of the funds would be restrained : tion restrained. (J^^^^ ^^ q^^^^^ ^^^ Effect of pre- It is apprehended that under the present section the trustees sen sec . would be equally precluded from selecting that branch of the alternative, or exercising a power given by the will, which would involve the purchase of land. LEGACY TO BE LAID OUT IN LAND. 89 Indeed, it may be said that when trustees have made up SEC T.7. their mind to adopt the improper alternative, or even to exercise a power in an improper manner, there is a direction within the meaning of the section. A bequest to a charitable society bound by its rules to invest Bequest to its funds in the purchase of land was void under the old law ; to'pureha'sT Widmore v. Woodroffe, Amb. 636 ; Middleton v. Clitherow, 3 land. Ves. 734 ; Incorporated Church Building Society v. Coles, 5 De G. M. & G. 324. In those cases the will was construed as though the instru- ments constituting the society were incorporated in it : Carter v. Green, 3 K. & J. 591. Consequently, upon the principle above stated to apply to the case of trustees having an option as to the application of the fund, where the funds of the society were not necessarily to be applied in purchasing land, as where they might also be expended in a manner not obnoxious to the statute, the gift was good : Church Building Society v. Barlow, 3 De G. M. & G. 120 ; Carter v. Green, sup. ; Wilkinson v. Barher, 14 Eq. 96 ; cf. Benton v. Lord John Manners, 2 De G. & J. 675. It is apprehended that, in cases falling within the present section, the same principle is applicable — namely, that the rules of the institution must be read into the will. Where, therefore, there is a legacy to an institution bound by its trusts to lay out its funds in purchasing land, the present section precludes the carrying out of that object. In the same way, where the legacy is to an institution having power to apply its funds in the purchase of land, the exercise of that power must be regarded as being equally excluded. A direction to hire a house or rooms is not a direction to lay Hiring house out in the purchase of land within the meaning of the section : °' '""nis. Re Eohson, Emhy v. Davidson, 19 Oh. D. 156; Re Holhurne, Goates v. MacMllop, 53 L. T. N. S. 212. See also Davenport v. Mortimer, 3 Jur. 287 ; Re Hedgman, Morley v. Croxon, 8 Ch. D. 156. It was held under the old law that a bequest of pure person- Bequest alty might be so connected with a devise of real estate as to be jii^g^i devise itself void. — oW law. Where houses were devised for the benefit'of the poor of a parish, and a sum given for the endowment of them, it was held that, the gift of the houses being void, the money bequest 90 MORTMAIN AND CIIAEITABLE USES ACT, 1 89 1. SECT. 7. failed also : Att.-Gen. v. Goulding, 2 Bro. C. C. 428 ; Att.-Gen. ' V. Whitchurch, 3 Ves. 141 ; Price v. Hathaway, 6 Madd. 304. So also, where there was a legacy to build almshouses and purchase ground, which failed, a residuary bequest to a chari- table society, provided they would furnish a piece of ground to build the houses, and would take the management, was held to fail with the principal gift : Att.-Gen. v. Davies, 9 Yes. 535. See also Chapman v. Brown, 6 Ves. 404 ; lAmhrey v. Gurr, 6 Madd. 151 ; Att.-Gen. v. Hinxman, 2 J. & W. 270 ; Smith v. Oliver, 11 Beav. 481 ; Dunn v. Bownas, 1 K. & J. 596 ; Cramp V. Playfoot, 4 K. & J. 479 ; Green v. Britten, 42 L. J. Oh. 187 ; Re Taylor, Martin v. Freeman, 58 L. T. E". S. 538; Be Cox, Cox V. Davie, 7 Oh. D. 204 ; and Tudor's Charit. Trusts, pp. 45, 46. The case of Att.-Gen. v. Ilodgson, 15 Sim. 146, should probably be regarded as belonging to another class of decisions, in which case it was wrongly decided : Tudor's Charit. Trusts, pp. 416, 418. Efiect of pre- The legacy in these cases having been held to fail solely sent Act. because the primary devise was void under 9 Geo. II. c. 36, the effect of this Act in rendering the primary devise valid removes the foundation of the decisions. In such cases, there- fore, the legacy will in future be valid. Applica- It has been seen (ante, pp. 82 and 87) that the present leeacv section has the effect of striking out of a will any direction, whether express or implied, to lay out a charitable legacy in the purchase of land. This is, in fact, a statutory direction for a special cy-pres application of the fund. The striking out of a condition attached to a gift, when that condition has become incapable of performance, has always been one of the recognised modes of applying the cy-pres doctrine : Glasgow College v. Att.-Gen., 1 H. L. 0. 800; Bunting v. Marriott, 19 Beav. 163; Re Richardson's WiU, 58 L. T. N. S. 45. The result of this erasing process is that the intentions of the testator must, so far as possible, be carried into effect as though no direction to lay out in land had been expressed or implied. In the cases in which a legacy to erect buildings for or to establish a charity was void under the old law, the gift was in fact held to be applicable to a double purpose — first, the purchase of land, and, secondly, the erection of the buildings or the establishment of the charity upon the land so purchased. LEGACY TO BE LAID OUT IN LA\1). 91 The present section separates these two purposes, and, while SECT. 7. it strikes out the iirst, leaves the second subsisting. The legacy therefore remains applicable to erecting the building or establishing the charity, only not through the medium of purchasing land. Where the legacy is to an existing charitable institution, and Legacy to the direction to buy land is express, the effect of striking out j'^gtjt "(foj, the direction is to leave a simple legacy to the institution. It is apprehended that in such a case the legacy will usually fall into its general funds. Where the legacy is to erect buildings, or carry out any Other cases. similar object for the benefit of an existing institution, and in every case, whether the direction is express or implied, where the testator is establishing a new charity, it may be laid down that as a general rule it will be necessary to obtain the direc- tions of the Court or the Charity Commissioners as to the application of the fund. The fund will primarily be apphcable in effecting the direc- tions, so far as they can be effected without purchasing land. If they are impracticable, a cy-pres application will be required : see as to the application of the cy-pres doctrine, ante, p. 66 e< seq. The question whether the authority of the Court or the Wliethei- Charity Commissioners shall be invoked will be governed by application the principles stated (ante, p. 69) with reference to similar Court or applications as to the proceeds of land sold under sect. 5 of Chanty Oom- 1 1 c 1. ■ r-. miss. this Act. As to the mode oi application, see ante, p. < 1. 8. It shall be lawful for the High Court, or any sect. 8. judge thereof sitting at chambers, or for the p(,„er to Charit)'- Commissioners, if satisfied that land ^^j.^j^?^'''^^^^;'; assured by will to or for the benefit of any chari- table use, or proposed to be purchased out of personal estate by will directed to be laid out in the purchase of land, is required for actual occu- pation for the purposes of the charity and not as an investment, by order to sanction the retention or acquisition, as the case may be, of such land.(a) (a) This section is likely to prove exceedingly beneficial. Effect of sect. It enables the Court or the Charity Commissioners in every 92 MORTMAIN AND CHAEITABX.E USES ACT, 189I. SECT. 8. case in which land or money directed to be laid out in land is given for the purpose of providing a new or additional site for an existing charity, or of providing a site for a new charity, to authorize the retention of the land, or the application of the legacy in purchasing land, as the case may be. Application to An application to the Court under the section will, unless it ""'''• is made in proceedings already pending, be by originating summons entitled in the matter of the Act. In many cases, no doubt, it will, like a summons under sect. 5 (see ante, p. 70), for extension of the time for sale, form part of an appUcation relating to other questions arising in the course of the admin- istration of the testator's estate. It may be supposed that a summons for leave to retain the land will also ask in the alternative for an extension of the time for sale. Whether As to whether the application should be to the Court or the apphcation to Charity Commissioners, see aTvte, p. 69. And as to the pro- Cliarity Com- cedure on an apphcation to the Charity Commissioners, see ™iss. areie, p. 71. (Teneral power Independently of this section the Court has under its ' *]"•'!' '" general jurisdiction power to authorize the purchase of land : chase of land. Tudor 's Charit. Trusts, pp. 250, 278. Thus, it has authorized the purchase of a fresh site for a charitable institution: Re Colstons Hospital, 27 Beav. 16. So also when the enlargement of a charitable institution has been required : Att.-Gen. v. Earl of Mansfield, 14 Sim. 601 ; Re Honnor's Trust, 3 W. R. 429. See also Att.-Gen. v. Wardens, &c., of Highgate School, 14 L. J. Ch. 25. In general, however, the Court has not allowed money belonging to a charity to be invested in the purchase of land, regarding it as contrary to the policy of 9 Geo. II. c. 36 (now part ii. of the Mortm. and Charit. Uses Act, 1888) ; Mather V. Scott, 2 Keen 172 ; Att.-Gen. v. Wilson, ibid. 680. Purchase The Court does not approve of a purchase of land by charity ""'dV^^^'^'*' *^''i^*^ss under very special conditions of sale : Ex parte Governors of Christ's Hospital, 2 H. & M. 166. General power The Charity Commissioners have no express power under Commiss^to *^^ Charit. Trusts Acts to make orders authorizing the authorize pur- purchase of land. chase of land. Provisions as to the purchase of land are, however, fre- quently inserted in schemes established under sect. 2 of the Charit. Trusts Act, 1860 : see Tudor's Charit. Trusts, p. 494. Sect. 16 of the^same Act is also wide enough to authorize an EETENTIOX OE PURCHASE OF SITE. 93 order for the purchase of land where the purchase will be SECT. 8. beneficial to the charity ; and such orders are frequently made : Tudor's Charit. Trusts, pp. 494, 572. The Charity Commissioners requiie a valuation and report Practice o( as to the land proposed to be purchased to be made by a ^?*"*y "^o™' , "^ miss. surveyor on behalf of the charity and submitted to them, together -with a certificate by the solicitors of the charit}- as to the sufficiency of the title : Tudor's Charit. Trusts, p. 494. 9. This Act shall only apply to the will of a SECT. 9. testator dying after the passing of this Act.(a) Appiicatiou of Act. (a) This section does not, of cour.