convey Whiteacre (part of the devised estate) to a charity, the condition alone is void, and the devise is absolute. (q)

Bequest of proceeds of real estates to charity illegal.

Though the statute does not in terms apply to the proceeds of land ' directed to be sold, yet it is settled by construction, that a fund of this nature is within its spirit and meaning, (r) on the ground, it should seem, that the legatee might have elected to take it as land; (s) and a legacy payable out of such a fund of course shares the same fate. (t) The act, however, does expressly embrace the converse case of money being directed to be laid out in land, (u) and the prohibition applies not only where the investment in land is expressly directed by the will, but also *where it results from the nature and regulations of the charity itself. (v)

So, of bequest

of money to be
laid out in
land.

chase held to

Where trustees

A recommendation to trustees to purchase land is imperative, and, Recommenda- consequently, has the same invalidating effect as a trust tion to pur- which is mandatory in terms. (x) But, if an option be be mandatory. given to the trustees to lay out the money in land, or upon government or personal security, (y) [or, generally, to execute the trust in either of two ways, the one lawful, the other not, (z) or, if the regulations of the charity be such that the money bequeathed might, if the act were out of the way, be applied either in one way or the other, (a) the

have an option

to invest in land or other security, the bequest is good.

(q) Poor v. Miall, 6 Mad. 32.

[(r) Att.-Gen. v. Lord Weymouth, Amb. 20;] Curtis v. Hutton, 14 Ves. 537; Trustees of British Museum v. White, 2 S. & St. 595.

v. Hutton, 14 Ves. 537; [Edwards v. Hall, 11 Hare 11, 12, 6 D., M. & G. 89; Dent v. Allcroft, 30 Beav. 335; Salusbury v. Denton, 3 K. & J. 529; Graham v. Paternoster, 31 Beav. 30; Wilkinson v. Barber, [(8) It is an interest in land, per Lord L. R., 14 Eq. 96; Morley v. Croxon, 8 Cairns, L. R., 3 Ch. 674.] Ch. D. 156.

(t) Page v. Leapingwell, 18 Ves. 463. (u) Att.-Gen. v. Heartwell, 2 Ed. 234; Pritchard v. Arbouin, 3 Russ. 458.

(v) Widmore v. Woodroffe, Amb. 636; Middleton v. Clitherow, 3 Ves. 734. [And see Denton v. Manners, 25 Beav. 38, 2 DeG. & J. 675.]

(x) Att.-Gen. v. Davies, 9 Ves. 546; Kirkband v. Hudson, 7 Pri. 212; [Pilkington v. Boughey, 12 Sim. 114.]

(y) Soresby v. Hollins, Amb. 211, [9 Mod. 221; Widmore v. Governors of Queen Anne's Bounty, 1 B. C. C. 13, n.; Att.-Gen. v. Parsons, 8 Ves. 186;] Curtis

(z) Mayor of Faversham v. Ryder, 18 Beav. 318, 5 D., M. & G. 350; Baldwin v. Baldwin, 22 Beav. 419; London University v. Yarrow, 1 DeG. & J. 72; Sinnett v. Herbert, L. R., 7 Ch. 243; Lewis v. Allenby, L. R., 10 Eq. 668.

(a) Church Building Society v. Barlow, 3 D., M. & G. 120; Carter v. Green, 3 K. & J. 591; Denton v. Manners, 2 DeG. & J. 675, 682. Unless the purpose of the gift be expressly confined by the will to the illegal object; see last case. If the will be expressly worded to include the illegal as well as the legal objects, it

bequest is valid. Thus, in Lewis v. Allenby, (b) a bequest of residue, comprising pure and impure personalty, to trustees for division among such charities in London or elsewhere in England as they in their discretion should think proper, was upheld on the ground that the trustees had power to name the charities, and could properly exercise it as to the impure personalty only in favor of such charities as were exempted from the act.] It was attempted to bring within the scope of this principle a direction to invest on such mortgage securities as the trustees should approve, which, it was contended, authorized the trustees to lay out the fund on mortgages of personal chattels, or on Irish or Scotch real securities (some of which the testator was already possessed of); but Lord Langdale, considering that the reasoning savored too much of refinement, held the bequest to be void. (c)

purchase of

land is the ulti

mate object,

the trust is bad. to be void, Even though option "in case

there be an

land cannot be

conveniently

purchased."

So, if investment in land is the ultimate destination of the money, the bequest will not be protected by the circumstance of Where the *provision being made for its suspension during an indefinite period; and, therefore, a gift of personal estate, to be laid out in the purchase of lands, has been repeatedly held although the trustees were empowered to invest the money in the funds until an eligible purchase could be made; (d) [neither will a direction to purchase, though accompanied by a legal alternative direction for the application of the money in case the purchase cannot be conveniently made, give the trustees such a discretion as to take the bequest out of the statute, where there is no impediment to the primary trust but the statute.](e) These determinations have clearly overruled Grimmett v. Grimmett; (f) and it seems somewhat difficult to reconcile with them the more recent case of Att.-Gen. v. Goddard, (g) where a testatrix, after bequeathing £1000 Indian annuities to trustees for charitable purposes, added, "as money is of more uncertain value than land, I do also give them power to make such purchase as they shall think best for perpetuating the gift;" Sir T. Plumer, M. R., hesitatingly held the would seem that there must be an apportionment, In re Rigley's Trusts, 36 L. J., Ch. 147; Hoare v. Osborne, L. R., 1 Eq. 585, and the share apportioned to the illegal object would be undisposed of.

(b) L. R., 10 Eq. 668.]

(c) Baker v. Sutton, 1 Kee. 224. [Cf. London University v. Yarrow, sup., where a choice between London and Dublin was

expressly given.]

(d) Grieves v. Case, 4 B. C. C. 67, Dick. 251, [1 Ves., Jr., 548, 2 Cox 301;] English v. Orde, Duke Ch. Uses 432; Pritchard v. Arbouin, 3 Russ. 458; [Mann v. Burlingham, 1 Kee. 235.

(e) Att.-Gen. v. Hodgson, 15 Sim. 146.]
(ƒ) Amb. 210.
(g) T. & R. 348.

bequest to be valid, though he admitted it to be doubtful whether the clause in the will did not amount to a direction to purchase land, and whether the discretion extended to anything further than the selection of the estate.

Legacy valid

where the pur

not essential to the trust.

to establish a

school;

-to endow one;

It is clear, that where the will is silent as to the purchase or acquisition of land, and the charitable trust or purpose is of a chase of land is nature which admits of its being fully and conveniently executed without such purchase or acquisition, the legacy is good. Thus, where the testator bequeathed £2800 three per cent. Gifts of income reduced annuities, and directed the dividends to be applied "for and towards establishing a school," Lord Loughborough said, that this did not include the purchase or renting of land: the master might teach in his own house, or in the church. (h) So, in another case, the bequest of personalty, "to be a perpetual endowment and maintenance of two schools," was considered, by Richards, C. B., to be so far good; though it was rendered void by the addition of a recommendation to purchase land. (i) And -to provide a even where the interest of the bequeathed fund was directed to be applied in "providing a proper schoolhouse," Sir J. Leach, V. C., thought *that, as the intention might be executed by hiring a house, without the necessity of purchasing land, the bequest was valid; and that, too, though the will contained expressions showing that the testator contemplated the perpetuity of the charity. (k) So, where the trustees were expressly directed to apply the income of a charity fund in the purchase or rental of an appropriate building. (1)

school-house.

Contra where purchase of

[Much reliance was in these cases placed on the circumstance that the purposes of the will were to be answered out of the land intended. annual income as it arose, leaving the principal untouched. Where a legacy was given towards "establishing" a school near the Angel Inn at E., provided a further sum could be raised in aid thereof if found necessary; Sir G. Turner, V. C., said that the first words indicated an intention to occupy a site in the neighborhood referred to; and that the latter words removed all doubt,

Capital, to establish a school;

(h) Att.-Gen. v. Williams 4 B. C. C. 526, [2 Cox 387;] see also Att.-Gen. v. Jordan, Highmore on Mortmain 225. [Also Martin v. Wellstead, 23 L. J., Ch. 927; Hartshorne v. Nicholson, 26 Beav. 58.]

(i) Kirkbank v. Hudson, 7 Price 221. (k) Johnston v. Swann, 3 Mad. 457; [and see Crafton v. Frith, 15 Jur. 737, 20 L. J., Ch. 198.]

(1) Davenport v. Mortimer, 3 Jur. 287, (V. C. Shadwell).

showing that the establishment of the school was not to be by a succession of small payments, but by the immediate expenditure of a sum of money. He thought it clear that the intention was that land should be purchased. (m)

-a hospital;

So, in Dunn v. Bownas, (n) where a testator bequeathed a sum of money to the mayor and corporation of N., in trust for the purpose of "establishing" a hospital for twelve poor widows, with a monthly allowance of twenty shillings to each, the surplus to be applied in providing for them coals, clothing, or other necessaries; and he declared that the bequest was to be carried into effect at the death of his sisters, or during their lives if they should think proper, in which case they should be allowed to name the first inmates, Sir W. P. Wood, V. C., held that the only way in which the trust could be executed, was to buy a house with part of the fund, and that the reference to "surplus income" was not sufficient to alter this plain conclusion.

And in Tatham v. Drummond, (o) a bequest of money to be applied towards the "establishment" of slaughter-houses in the —a slaughterneighborhood of London was held void by Lord West- house; bury, who thought it could not be doubted that if there were no statute of mortmain, a bequest to "establish" a charity such as a school or a hospital in any parish or district would be carried into effect *by the purchase of land and the erection of buildings thereon; and he adopted Lord Loughborough's rule (p) that the court would not alter its conception of the purposes of a testator merely because they happened to fall within the prohibitions of the statute.

So a bequest to "found" a chapel (q) is prima facie void.

-to found a chapel.

But a bequest to "endow" churches and chapels in populous districts, (r) or to "support" a school at A, (s) or to "found a charitable endowment," (t) is good.

[(m) Att.-Gen. v. Hull, 9 Hare 647; and see Att.-Gen. v. Hodgson, 15 Sim. 146; Longstaff v. Renneson, 1 Drew. 28; In re Clancy, 16 Beav. 295.

(n) 1 K. & J. 596.

A bequest to estab

Legacy to enschools, &o.,

dow churches,

good.

(q) Hopkins v. Phillips, 3 Gif. 182. (r) Edwards v. Hall, 11 Hare 1, 6 D., M. & G. 74.

(8) Morley v. Croxon, 8 Ch. D. 156; Kirkbank v. Hudson, 7 Pri. 221, per

(0) 4 D., J. & S. 484, reversing Wood, Richards, C. B., sup.

V. C., 33 L. J., Ch. 438.

(p) Att.-Gen. v. Williams, 2 Cox 387.

(t) Salusbury v. Denton, 3 K. & J. 529.

"Institution."

lish an "institution" may also be good if the purpose of the institution as described does not require the purchase of land.] (u)

It has been much questioned whether a bequest of money, to be applied in the "erection" of a school-house or other building, for charitable purposes, is bad, as involving a trust to purchase. Lord Hardwicke considered that if the

Legacy to be applied in erecting or building, bad.

trustees could get a piece of ground given to them, so that land need not be purchased, the gift was good; (x) but the contrary is now settled: (y) [and to make such a bequest valid, the testator must either point to land already in mortmain, or he must forbid the purchase of land. (2) Thus, in Mather v. Scott, (a) where a testator bequeathed a legacy to trustees, with a request that they would entreat the lord of the manor to grant land for building almshouses, Lord Langdale, M. R., held that the language of the bequest was not sufficiently expressed to exclude a purchase, and therefore the gift failed.] And it is equally clear that a legacy, [on condition that the legatee provide land for effecting the testator's object, is void, as being in truth a purchase of the land from the legatee.] (b) And it would not avail, that charity legatees, by whom a fund is directed to be laid out in the erection of buildings, possess and offer to appropriate for the purpose land already in mortmain, unless the bequest were so framed as not to admit of a new *purchase being made for the occasion; (c) [nor is a bequest to build made valid by a proviso that the legacy shall not be paid until the building has been commenced. (d)

Legacy on

condition that legatee provides land, void.

(u) Baldwin v. Baldwin, 22 Beav. 413 (trust to provide annuities for indigent persons, with directions for the management of the "institution"). And see per Lord Cranworth, London University v. Yarrow, 1 De G. & J. 81, but qu., for that was a hospital for animals.]

(x) Vaughan v. Farrer, 2 Ves. 182; Att.-Gen. v. Bowles, Id. 547, [3 Atk. 806.]

(y) Foy v. Foy, 1 Cox 163; [Pelham v. Anderson, 2 Ed. 296, 1 B. C. C. 444, n. ;] Att.-Gen. v. Nash, 3 B. C. C. 588; Att.Gen. v. Whitchurch, 3 Ves. 144; Chapman v. Brown, 6 Id. 404; Att.-Gen. v. Parsons, 8 Id. 186; Att.-Gen. v. Davies, 9 Ves. 535; Pritchard v. Arbouin, 3 Russ.

458; [Att.-Gen. v. Hodgson, 15 Sim. 146 Smith v. Oliver, 11 Beav. 481.

(z) Att.-Gen. v. Davies, 9 Ves. 544, Pratt v. Harvey, L. R., 12 Eq. 544. (a) 2 Kee. 172.

(b) Att.-Gen. v. Davies, 9 Ves. 535; and see Dunn v. Bownas, 1 K. & J. 602.]

(c) Giblett v. Hobson, 5 Sim. 651, 3 My. & K. 517; [In re Watmough's Trusts, L. R., 8 Eq. 272; Cox v. Davie, 7 Ch. D. 204.] In Giblett v. Hobson, Lord Brougham held that circumstances dehors the will might be investigated for the of purpose getting at the intention [i. e., evidence of surrounding circumstances," according to the general rule; see ch. XIII.

(d) Pratt v. Harvey, L. R., 12 Eq. 544,