allowed to be subverted by a mere slip or omission of the testator, which the court had the power of easily correcting by an arrangement of the funds. (1) Exception in favor of two versities, and Eton, Winchester, and It will be observed, that the act expressly allows gifts to the two English universities and their colleges, and the three colleges of Eton, Winchester, and Westminster. (k) It has never been decided whether the proviso extends to colleges founded since the act, as Downing College, Cambridge. Westminster. Lord Northington considered that it was confined to colleges antecedently established; (1) but Lord Loughborough appears to have dissented from this opinion. (m) It is clear that the statute does not authorize a devise to a college in trust for other charitable objects; (n) but it seems not to be essential that the trust should embrace the whole college; a trust for the benefit of particular members would be within the proviso; and therefore, a devise to the master and fellows of Christ's College, in trust that they and *their successors should apply the rents for some undergraduate student, has been held to be good. (o) But the devise must be for collegiate or academical purposes; and a gift to the college, to the intent that an individual member (the senior fellow for the time being) should live in the testator's house, and entertain the poor, and distribute medicine and books among them, was held to be void on this principle. (p) Lord Loughborough appears to have thought, that, if a devise of real estate to a college was refused by the college, as of course it may be, whether the devise be upon trust or otherwise, (q) it might, as the lands were originally devised to a valid purpose, be executed cy pres. (r) Exception in respect of The exception made by the act in respect of property in Scotland has been held to apply only to the locality of the lands destined to the trust; precluding, therefore, the devise of lands in England to a Scottish charity, but admitting of English personalty being bequeathed to be laid out in lands in Scotland, so far as (i) As to the policy of the stat. of 9 Geo. II., c. 36, [see a note by the author in previous editions, urging a relaxation of its prohibitions. But contra see Jeff ries v. Alexander, 8 H. L. Cas. 594, 648; and per Lord Romilly, 20 Beav. 508, L. R., 4 Eq. 111.] (k) For an instance of such a devise, see 3 Ves. 641. (1) 1 Ed. 16. (n) Att.-Gen. v. Tancred, 1 Ed. 15, 1 W. Bl. 90, Amb. 351; see also Blandford v. Fackerell, 4 B. C. C. 394, 2 Ves., Jr., 238; Att.-Gen. v. Mundy, 1 Mer. 327. (0) Att.-Gen. v. Tancred, 1 Ed. 10. (r) [Att.-Gen. v. Andrew, 3 Ves. 633.] is consistent with the Scotch law, which permits the destination of real estate to some kinds of charity. (s) It has been held, that the circumstances of the charity being Scotch, and Scotchmen only being eligible as trustees of it, do not conclusively show that the purchase is to be of lands in Scotland, so as to take the bequest out of the statute. (t) So, of course, a bequest of money to be laid out in lands in Ireland, for charitable purposes, will be good. (u) [But by a modern statute (x) it is enacted, that any donation, devise, or bequest, whereby any estate in lands, tenements or hereditaments in Ireland is conveyed or created for a charitable purpose, must be executed three calendar months before the death of the donor. This enactment does not, however, appear to extend to bequests of money to be laid out in land.] Purchase of lands in Ireland. British colonies. The statute 9 Geo. II., c. 36, does not extend to the British colonies; in its causes, its objects, its provisions, its qualifications, and its exceptions, it is a law wholly English, calculated for the purposes of local policy, complicated with local establish*ments, and incapable, without great incongruity in the effect, of being transferred, as it stands, into the code of any other country. (2) Custom of By the custom of London resident freemen might devise land in mortmain. (a) [By the general act De religiosis (b) the custom would have been abolished, but that afterwards there came a general confirmation of the customs of London by statute. (c) There is no saving of any custom in the statute of George, any more than there was in the statute De religiosis; and as there has (s) Oliphant v. Hendrie, 1 B. C. C. 571; Curtis v. Hutton, 14 Ves. 537; Mackintosh v. Townsend, 16 Ves. 330. [And the English rule, arising out of the act, against marshaling in favor of charities does not exist in Scotland. See Macdonald v. Macdonald, L. R., 14 Eq. 60.] (t) Att.-Gen. v. Mill, 4 Russ. 328, 5 Bli. (N. S.) 593, 2 D. & Cl. 393, [Sudg. Law of Prop. 419.] (u) See Campbell v. Earl of Radnor, 1 B. C. C. 272; Baker v. Sutton, 1 Kee. 234; Att.-Gen. v. Power, 1 Ba. & Be. 154. (x) [7 and 8 Vict., c. 97, 16. A deed must also be registered within the same period, Ib.] (2) Per Sir W. Grant, M. R., in Att.Gen. v. Stewart, 2 Mer. 141; [see also Att.-Gen. v. Giles, 5 L. J. (N. S.) Ch. 44; Whicker v. Hume, 1 D., M. & G. 506, 14 Beav. 509, 7 H. L. Cas. 124; Mayor of Lyons v. East India Company, 1 Moo. P. C. C. 298. So of course as to lands in a foreign country where there is no law corresponding to stat. 9 Geo. II., c. 36; Beaumont v. Oliveira, L. R., 6 Eq. 537. (a) 8 Rep. 129 a. (b) 7 Ed. I., c. 1, ante ch. V. (c) Per Lord, Coke, 2 Bulst. 190. And local customs are expressly saved by the stat. 23 Hen. VIII., c. 10, § 5. been no subsequent confirmation of the customs of London, (d) it follows, according to Lord Coke, that the statute of George is binding on the city of London. (e) An express power given to a charitable corporation by statute 6 Ann. to take and hold land by devise without license in mortmain has been held to be taken away, by the statute 9 Geo. II.] (f) At all events it is clear that the custom of London applies only to lands in London. (g) Statutes allowdevoted to charities. ing land to be particular The legislature has, in several instances, relaxed in favor of particular objects the restriction on disposing of land to charitable purposes. 10 Thus, by the land tax redemption act (42 Geo. III., c. 116, § 50,) money may, by will or otherwise, be given to be applied in the redemption of the land tax on hereditaments settled to charitable uses. So, the statute 43 Geo. III., c. 107, authorizes the devise of lands to the governors of Queen Anne's bounty; and again, the statute 43 Geo. III., c. 108, empowers persons, by will executed three months before death, to devise lands not exceeding five acres, or goods and chattels not exceeding in value £500, (h) for erecting, rebuilding, repairing, purchasing, or *providing any (d) The latest confirmation by statute appears to be 2 W. & M., sess. 1, c. 8, 3. (e) See also per Sir R. P. Arden, M. R., Highmore on Mortmain p. 127; and see generally as to these customs the authorities cited in Reg. v. Mayor, &c., of London, 13 Q. B. 1. (ƒ) Luckraft v. Pridham, 6 Ch. D. 205. (9) Middleton v. Cater, 4 B. C. C. 409. 10. The statutory authority to take lands by devise, notwithstanding the stat ute of mortmain, is strictly construed. Thus, in Nethersole v. School for Indigent Blind, 11 L. R., Eq. 1, (1870,) authority to take lands, tenements, hereditaments and money, was held not to give authority to take impure personalty; so in Chester v. Chester, 12 L. R., Eq. 444, (1871,) authority as above, with proviso that grants which would be void under the statute of 9 Geo. II. should not be thereby validated, was held not to authorize the taking of a bequest of debts secured by equitable mortgage of leaseholds. But authority to a hospital to take by gift, purchase or otherwise, land or personal property, gives an implied right to take by devise a gift of mixed personalty, Perring v. Trail, 18 L. R., Eq. 88, (1874). [(h) By section 2, if the devise exceed the limit, the excess only is void, and the specific five acres may be allotted by the L. C. In Sinnett v. Herbert, L. R., 7 Ch. 232, a gift comprising pure and impure personalty, for building or endowing a church, was held to carry £500 worth of the impure personalty, besides all the pure personalty, on the ground that the £500 being all which could properly be spent in building (see In re Ireland's Will, 12 L. J., Ch. 381), it must be assumed that the trustees would apply all the rest for the other purposes. As under this act, one may devise, so he may convey, reserving a life estate, per Sir G. Turner, L. J., Fisher v. Brierly, 1 D., F. & J. 664. But the act does not authorize a gift of money, even within the limit of £500, to arise by sale of land, Church Building Society v. Coles, 1 K. & J. 145, 5 D., M. & G. 324. church or chapel where the liturgy of the Church of England may be used, or any mansion-house for the residence of the minister, or any outbuildings, offices, churchyard, (f) or glebe, for the same respectively; but no glebe, containing upwards of fifty acres, is to be augmented above one acre; (g) [and the promotion of these or similar objects has been further encouraged by an act (h) legalizing the devise of lands to or in trust for (2) the ecclesiastical commissioners, in aid of the endowment and erection of district churches. Again, the public parks, schools, and museums act, 1871, authorizes gifts by will, made twelve calendar months before, and enrolled in the books of the charity commissioners within six calendar months after, the testator's death, of limited portions of land for any of the objects mentioned in the title to the act.] (k) The statute of mortmain has also been repealed pro tanto in favor of the British Museum, () [the Department of Science and Art,] (m) the Bath Infirmary, (n) Greenwich Hospital, (o) the Foundling, (p) Westminster, (q) Middlesex, (r) and St. George's' Hospitals, (8) the Royal Naval Asylum, (t) the Seaman's Hospital Society,(u) and of some other public institutions. (a) [But it must be borne in mind that an act of parliament which confers an a chari Act of parliament when to license from the crown. only equivalent table corporation the right to purchase, take, hold, receive, or enjoy lands, does not enable it to acquire land otherwise than in the mode prescribed by the statute Geo. II., c. 36, the effect of the clause being equivalent only to a license from the crown to (f) A bequest for maintenance of a family vault in a churchyard cannot be supported as one for repair of a churchyard under this act, In re Rigley's Trusts, 36 L. J., Ch. 147.] was repealed by the public libraries act, 1850.] (1) See stat. 5 Geo. IV., c. 39. (m) 38 and 39 Vict., c. 68. This act does not expressly refer to 9 Geo. II., c. (g) See also 55 Geo. III., c. 147, and 58 36; and according to a suggestion of [(h) 6 and 7 Vict., c. 37, § 22. (i) Baldwin v. Baldwin, 22 Beav. 425. (k) 34 Vict., c. 13. The acts 4 and 5 Vict., c. 38, (school sites,) 31 and 32 Vict., c. 44, (sites for religious, educational, literary, &c., purposes,) and the elementary education act, 1873, 13, subs. 3, exclude gifts by will. The act 8 and 9 Vict., c. 43, empowered municipal corporations to take by devise sites for museums, &c., and also (as was held in Harrison v. Corporation of Southampton, 2 Sm. & G. 387,) money to be laid out in such sites; but James, L. J., (6 Ch. D. 212,) the case is therefore not taken out of the stat. Geo. II. Sed qu.] (n) 19 Geo. III., c. 23; see Makeham v. Hooper, 4 B. C. C. 153. (0) 10 Geo. IV., c. 25, § 37. [(q) 6 Geo. IV., c. 20 (loc. and pers.) (u) 3 and 4 Will. IV., c. 9, § 1. hold in mortmain, (y) and not therefore enabling it to take by devise.] Bequest of pure charitable pur personalty to poses not re *The act 9 Geo. II. leaves the disposition of pure personalty wholly unrestrained, except where directed to be invested in real estate; so that with this qualification a man may dispose of his whole personal estate (2) to charitable purposes strained. capable of enduring forever, in despite of the claims of his nearest kindred; and dispositions so made are strongly favored in point of construction; (a) for by a rule peculiar to gifts of this nature, if the donor declare his intention in favor of charity indefinitely, without any specification of objects, or in favor of defined objects, which happen to fail, from whatever cause; although, in such cases, the particular mode of application contemplated by the testator is uncertain or impracticable, yet the general purpose being charity, such purpose will, notwithstanding the indefiniteness, illegality, or failure of its immediate objects, be carried into effect. 11 Thus, in the case of a gift to the poor in general, (b) or to charitable uses gener- Such bequests ally, (c) or for the advancement of religion, expressed in [(y) Mogg v. Hodges, 2 Ves. 52; British Museum v. White, 2 S. & St. 595; Nethersole v. Indigent Blind School, L. R., 11 Eq. 1; Chester v. Chester, L. R., 12 Eq. 444. This appears to have been overlooked in the late edition (1865) of Chitty's Statutes, where several charitable institutions are stated to be exempted, by special enactment, from the operation of the act of Geo. II., though they are in fact only empowered to hold land; see, for instance, the acts establishing the Company of Surgeons and Barbers and the Marine Society. A power to take land by will is of course sufficient, Perring v. Trail, L. R., 18 Eq. 88 (The Westminster Hospital. So the Middlesex and St. George's Hospitals). See and consider with reference to this point, 13 and 14 Vict., c. 94, 23, enabling owners of impropriated tithes to annex the same to the parsonages, &c., of the parishes where they (b) Att.-Gen. v. Matthews, 2 Lev. 167; S. C., nom. Frier v. Peacock, Finch 245; Att.-Gen. v. Rance, cit. Amb. 422. executed cy pres, when. arise, Denton v. Manners, 25 Beav. 38, 2 De G. & J. 675.] (z) Anon., Freem. Ch. Cas. 262; Baylis v. Att.-Gen., 2 Atk. 239; Da Costa v. De Pas, Amb. 228, cit. 7 Ves. 76, 3 Mad. 457. (a) 7 Ves. 490. 11. Notwithstanding the general rule that the cy pres doctrine is not to be applied where a particular charity is designated by the donor, there are numerous exceptions, classified as follows by Mr. Boyle (pp. 169-211): "1. Where the charitable objects are attended with uncertainty. 2. Where the donor has left the enumeration of objects incomplete. 3. Where the gift is made to or concerns an indefinite class of persons. 4. Where circumstances intervene to prevent a strict execution of the charity. 5. Where certain preliminaries to the enjoyment of a gift have been neglected by the trustees. 6. Where there occurs a failure of (c) Clifford v. Francis, Freem. Ch. Cas. 330; Att.-Gen. v. Herrick, Amb. 712. |