case is equally an authority against holding the bequest void for uncertainty. (f)

And if, instead of a trust for a charitable and another definite object, there be a trust for a charitable or another definite object, as trustees shall appoint, there would be an implied trust for both in default of appointment.] (g)

times in regard

to charity.

The policy of early times strongly favored gifts, even of land, to Policy of early charitable purposes. Thus, not only was no restraint imposed on such dispositions by the early statutes of wills, but the act of 43 Eliz., c. 4, as construed by the courts, tended greatly to facilitate gifts of this nature, such act having been held to authorize testamentary appointments to corporations for charitable uses, (h) and even to enlarge the devising capacity of testators, by rendering valid devises to those uses by a tenant in tail; (i) *and also by a copyholder, without a previous surrender to the use of the will, (k) though it was admitted that the statute did not extend to the removal of personal disabilities, such as infancy, lunacy, and the like. (1)

To the same policy we may ascribe that rule of construction presently considered, by the effect of which property once devoted to charity was never allowed to be diverted into any other channel, by the failure or uncertainty of the particular objects. At the commencement of the eighteenth century, however, the tide of public opinion appears to have flowed in an opposite direction, and the legislature deemed it necessary to impose further restrictions on gifts to charitable objects; from the nature of which it may be presumed that the practice of disposing by will of lands to charity had antecedently prevailed to such an extent as to threaten public inconvenience. It appears to have been considered, that this disposition would be sufficiently counteracted by preventing persons from aliening more of their lands than they chose to part with in their own lifetime; the supposition evidently being, that

(ƒ) In like manner, if there are several charitable objects, and the share of each is undefined, the court will direct inquiries to ascertain the proportion due to each, In re Rigley's Trust, 36 L. J., Ch. 147; or, if that, from the nature of the gift, is impracticable, will make equal division among the charities, Hoare v. Osborne, L. R., 1 Eq. 585.

(g) Brown v. Higgs, 4 Ves. 708, 5 Ves. 495, 8 Ves. 561; Fordyce v. Bridges, 2

Phill. 497. But see Thompson v. Thompson, 1 Coll. 399, 8 Jur. 839.]

(h) Flood's case, Hob. 136. [But see 1 D. & War. 303, 4, 5.]

(i) Att.-Gen. v. Rye, 2 Vern. 453; Att.Gen. v. Durdett, Id. 755. See also 3 Ch. Rep. 154.

(k) Rivett's case, Moore 890, pl. 1253, 3 Ch. Rep. 220.

(1) See Collinson's case, Hob. 136.

No hereditasonal estate to the purchase

ments, or per

be laid out in

of hereditaments, to be

disposed of or any charitable use, other than chancery, &c.

charged for

men were in little danger of being perniciously generous at the sacrifice of their own personal enjoyment, and when uninfluenced by the near prospect of death. Accordingly, the stat. of 9 Geo. II., C. Stat. 9 Geo. II., c. 36, (usually, but rather inaccurately, called the statute of c. 36. mortmain,) enacted, that from and after 24th June, 1736, no hereditaments, or personal estate (m) to be laid out in the purchase of hereditaments, should be given, conveyed, or settled to or upon any persons, bodies politic or corporate, or otherwise, for any estate or interest whatsoever, or any ways charged or encumbered, in trust or for the benefit of any charitable uses whatsoever, (n) unless such gift or settlement of hereditaments or personal estate (other than stocks in the public funds) be made by deed indented, (o) sealed and delivered in the presence of two credible witnesses, (p) twelve calendar months before the death of the donor, including *the days of the execution and death, and enrolled (r) in chancery within six calendar months after the execution, and unless such stocks be transferred six calendar months before the death, and unless the same be made to take effect in possession (8) for the charitable use, and be without any power of revocation, reservation, (t) trust, &c., for the benefit of the donor, or of any persons claiming under him.

[(m) A voluntary covenant to pay a sum to a charity after covenantor's death is void under this act, so far as it would affect chattel real assets, Jeffries v. Alexander, 8 H. L. Cas. 594, and see S. C. as to validity of “devices to evade the statute," and as to the object of the act; and Fox v. Lownds, L. R., 19 Eq. 453. As to subscription fund, and as to parol declaration of trust, see Girdlestone v. Creed, 10 Hare 480.

(n) A conveyance of land to churchwardens and overseers of a parish to build a poor-house, under 59 Geo. III., c. 12, is not within the act, Burnaby v. Barsby, 4 H. & N. 690.

(0) The deed need no longer be indented, 24 Vict., c. 9, 1.

(p) In Wickham v. M. of Bath, L. R., 1 Eq. 17, it was held that the witnesses must not only be present, but subscribe the attestation clause.

As to copyholds, and cases where

by indenture enrolled in

the conveyance to trustees is by one deed, and the declaration of trust by another, see 24 Vict., c. 9, 8% 2, 4; 25 Vict., c. 17,

. 1, 3, 4. A deed conveying to a charity land already in mortmain does not require enrolment, Ashton v. Jones, 28 Beav. 460.

(8) I. e., giving the right to possession, Fisher v. Brierley, 10 H. L. Cas. 159. As to actual retention of possession by the donor, not expressly authorized by the deed, furnishing evidence of a secret reservation, S. C. and Way v. East, 2 Drew. 44. A lease for years to take effect in possession within one year is good, 26 and 27 Vict., c. 106.]

(t) This does not preclude the donor from reserving to himself a power of regulating the charity, 2 Cox 301. See also 1 Mer. 327. [And by 24 Vict., c. 9,

1, certain restrictive covenants and other provisions are now permissible.

Exception.

[The 2d section provides, that purchases for valuable consideration shall not be avoided by the death of the grantor within the twelve months, leaving, however, such purchases subject to the other conditions imposed by the act. (u) The 3d section declares all gifts, conveyances, settlements, of any hereditaments, or of any estate or interest therein, or of any charge or encumbrance affecting or to affect any hereditaments, &c., not perfected according to the act, void. The 4th section excepts from the operation of the act the two universities of Oxford and Cambridge, and the colleges thereof, and the scholars upon the foundation of the colleges of Eton, Winchester, or Westminster. The 5th section puts a restriction, since removed, (x) on the number of advowsons to be held by any such college. The 6th section excepts Scotland from the act.]

The act extends to 6 leaseholds and money secured on mortgage, whether in fee or for years, (y) [or by deposit of titledeeds, (2) and to arrears of interest on any such mortgage:] (a) and even to judgment debts, so far as they

What species of property within the statute.

(u) On this section see Price v. Hathaway, 6 Mad. 304; Milbank v. Lambert, 28 Beav. 206; and 9 Geo. IV., c. 85; 24 Vict., c. 9, 1, 3, 4; 25 Vict., c. 17, 2, 5; 27 Vict., c. 13, 4; 29 and 30 Vict., c. 57.

(x) 45 Geo. III., c. 101.]

6. What constitutes an interest in land within the meaning of the English mortmain acts, has been a question much debated there. In the general absence of American mortmain laws, it is of less practical importance here, but a brief note is made of the later cases in England, many of which are more fully considered in the text.

Land in a foreign country is not within the act; Whicker v. Hume, 7 H. L. Cas. 124; Beaumont v. Oliveira, 6 L. R., Eq. 534, affirmed 4 L. R., Ch. App. 309. Proceeds of real property in England are

(y) Att.-Gen. v. Graves, Amb. 155; Att.-Gen. v. Caldwell, Id. 635; Att.-Gen. v. Meyrick, 2 Ves. 44; Att.-Gen. v. Earl of Winchelsea, 3 B. C. C. 373; S. C., nom. Att.-Gen. v. Hurst, 2 Cox 364;] White v. Evans, 4 Ves. 21; Currie v. Pye, 17 Ves.

within the act, whether the sale of the real property is expressly directed by the testator, or only made necessary by the amount and circumstances of the gift; Jeffries v. Alexander, 8 H. L. Cas. 594 (1860); Brook v. Bradley, 4 L. R., Eq. 106, affirmed 3 L. R., Ch. App. 672 (1868).

An annuity (based on a share in the proceeds of sale of land) left to the testator, is not; Marsh v. Att.-Gen., 2 Johns. & H. 61 (1860).

An unpaid premium for a lease, which is a lien on the land, is; Shepheard v. Beetham, 6 L. R., Ch. D. 597 (1877).

A leasehold is; Aspinwall v. Bonne, 29 Beav. 462 (1861), Romilly, M. R., saying in this case: "I have always considered the statute to mean, that whatever might be its legal character and in whatever form it might be disposed of, no interest

operate as a charge on real estate. (b) And where a testator had bequeathed his personal *estate upon trusts for a charity, and afterwards contracted to sell real estate, it was held that his lien on the property for the purchase-money was "an interest in land" within the meaning of the statute, and accordingly could not pass with the rest of his personal estate. (c)

Sum charged

Again, where A, being entitled to certain sums of money which were to be raised by the execution of a trust for sale of real estate, bequeathed all his personal estate to B, who survived A, and afterwards died, having bequeathed the

Improvement certificates, water works debentures, &c., charged on the undertaking, rates, &c., are; Cluff v. Cluff, 2 L. R., Ch. D. 222 (1875); Holdsworth v. Davenport, 3 L. R., Ch. D. 185 (1876); Chandler v. Howell, 4 L. R., Ch. D. 651 (1875); especially if secured by mortgage of the land, Alexander v. Brame, 30 Beav. 153 (1861); Chandler v. Howell,

uhi supra.

on land for

testator, and

not yet raised.

in land could pass to a charity by de- Trust, 32 Beav. 191 (1863). Attention vise." is also called to the following valuable note of Mr. Wharton, in Acland v. Lewis, 9 C. B. (N. S.) 46 (Am. ed.): "In some of the earlier American cases shares in turnpike and railroad companies and other corporations dealing in land have been held to be real estate and descendible as such: Willes v. Cowles, 2 Conn. 567; Price v. Price, 6 Dana 109; see Cape Sable Co.'s case, 3 Bland's Ch. 606. If this be so it might perhaps be contended that the members of such a corporation have a direct interest in the land itself, in other words that the corporation should be considered as a sort of partnership with limited liability. For it is difficult to see except upon some such hypothesis how the nature of the corporation proper can determine the character of a corporator's rights. The tendency of the decisions is now however to treat such shares as personal property and indeed they are usually made such by statute: Johns v. Johns, 1 Ohio St. 351; Arnold v. Ruggles, 1 R. I. 165; Tippets v. Walker, 4 Mass. 596; Howe v. Starkweather, 17 Mass. 243; Russell v. Temple, 3 Dana's Abr. 108. There is doubtless great practical convenience in the latter doctrine which excludes many

So, also, a legacy secured by charge on harbor tolls, Ion v. Ashton, 28 Beav. 379 (1860); on a railway debenture with mortgagee rights, Attree v. Hawe, 37 L. T. R. (N. S.) 399 (1877); but not a simple railway debenture, Mitchell's Estate, 6 L. R., Ch. D. 655 (1877); nor railway shares, Taylor v. Linley, 2 DeG., F. & J. 84, affirming 1 Giff. 67; nor shares in stock company, Bennett v. Blain, 15 C. B. (N. S.) 518; nor shares in a land company for purchasing and improving land, Entwistle v. Davis, 4 L. R., Eq. 272 (1867); but when there is an option given with the gift, that it be invested in real securities or government funds, or in the former with power to change to the latter, the gift will be upheld, Graham v. Paternoster, 31 Beav. 30 (1862); Beaumont's

(b) Collinson v. Pater, 2 R. & My. 344. [And see Jeffries v. Alexander, 8 H. L. Cas. 594.]

(c) Harrison v. Harrison, 1 R. & My.

71. [See also Shepheard v. Beetham, 6 Ch. D. 597 (lien for premium payable on grant of lease).]

residue of her personal estate to charity; it was contended, that, as the period for raising the sums in question had arrived in the lifetime of B, (though they were not actually raised until after her decease,) it was a breach of duty in the trustees not to raise them, and this neglect ought not to invalidate the gift, especially as the charities had no right to elect to take it as land; but Sir J. Leach, V. C., held, that these sums, constituting an interest in land at the testatrix's death, could not legally be given to the charities. (d) [And it makes no difference, as sometimes supposed, (e) whether B (in the above case) was alone entitled to the whole proceeds of the land directed to be sold, and entitled, therefore, to take the land unconverted; or whether he was entitled only to a share of the proceeds, or to a sum payable thereout. In either case, if the real estate has not in fact been sold before B's death, his interest is then an interest in land and within the statute. (ƒ) "It may very well be," said Lord Cairns, "that no one of the several persons entitled to the proceeds could insist upon entering on the land, or taking the land, or enjoying the land qua land, but the interest of each one of them is, in my opinion, an interest in land."](g) If the pecuniary gift is partly charged upon land and partly personal, it will be void pro tanto. And therefore, where a testator devised a freehold estate to be sold, and the produce applied, together with so much of the personal estate as should be necessary, to secure an annuity of £30 for the life of A, and *after his death, the principal to go to a charity; the freehold estate not being sufficient to raise the money, it was held that the bequest

Legacy, partly real and partly personal, void pro tanto.

embarrassing questions which must otherwise arise between heirs and executors where the company also possesses and deals with personal property as is most often the case. It seems also the most correct on principle, because the rights of the shareholder, so far as he can be considered as distinct from the corporation itself, only extend to compelling the latter to employ the corporation property for its legitimate purposes and to share in any profits arising therefrom and are therefore strictly in the nature of rights of action. See Union Bank of Tennessee, v. State, 9 Yerg. 119; Brightwell v. Mallory, 10 Yerg. 196; State v. Franklin Bank, 10 Ohio 91; Slaymaker v. Gettysburg Bank, 10 Barr 373."

(d) Att.-Gen. v. Harley, 5 Mad. 321. [(e) Marsh v. Att.-Gen. 2 J. & H. 61; Lucas v. Jones, L. R., 4 Eq. 73.

(f) Conversely where a testator, having a reversionary interest in personalty, which during the life of the tenant for life (who survived him) was subject to a power of investment in real securities, but which was never so invested, bequeathed it to a charity, the bequest was held valid. The actual condition of the fund when it fell in was the criterion, In re Beaumont's Trusts, 32 Beav. 191.

(g) Brook v. Badley, L. R., 3 Ch. 672. See also Aspinall v. Bourne, 29 Beav 462; Cadbury v. Smith, L. R., 9 Eq. 43. Thus Shadbolt v. Thorton, 17 Sim. 49, is overruled.]