of the devisee. Lord Hardwicke held that the heir was entitled by way of resulting trust, observing, "as this charge is well made on the estate, but not well disposed of, by reason of the act, it must be considered as between the heir and the hospital, [qu. devisee?] as part of the real estate undisposed of, and must be for his benefit."

Gravenor v.
Hallum.

In the next case, of Gravenor v. Hallum, (n) a testator devised to his executors and their heirs a messuage in Ipswich, subject to the annual payments, making together £10, thereinafter given and forever charged thereon, and all other his real estate, in trust to be sold, directing the moneys arising from the sale, and his personal estate, to be distributed as therein mentioned. The testator then gave the £10 a year to charity. Lord Camden held that the heir was entitled. "The rule as to real estate is," he said, "that where the intention of a testator is to devise the residue exclusive of a part given away, the residuary devisee shall not take that part in any event. If he had said, 'I give my estates over and above the rent-charge,' it would have been more plain: it is the same thing as if he had so expressed himself. The rent-charge is severed forever from the devise, which he gives to the residuary legatees.”

kins.

So in Bland v. Wilkins, (o) before Sir Thomas Sewell, where lands Bland v. Wil were given to E. N. in fee, upon condition that her executors or administrators should pay £10 to a charity. His Honor held that the £10 should go to the heir, as part of the produce of the land undisposed of.

The authority of Arnold v. Chapman, and the consequent superiority of the heir's claim, was recognized by Sir J. Leach in Henchman v. Att.-Gen. (p) Though ultimately the L. C.

Henchman v.
Att.-Gen.

(n) Amb. 643, 1 B. C. C. 61, n. (0) In 1782, cited 1 B. C. C. 61. (p) 2 S. & St. 498. A testator devised certain copyhold lands to W. H., his heirs and assigns, upon condition that he within one month after the decease of the testator, paid to his (the testator's) executors a sum of £2000, which he desired should be taken as part of his personal estate, and disposed of in the same manner; and, after giving certain legacies, he disposed of the residue of his personal estate, including the £2000, in favor of charities. The testator died without

customary heir or next of kin, and the question was, whether the £2000 belonged to the devisee, the lord of the manor, or the crown. Sir J. Leech, V. C., considered Arnold v. Chapman to be a decisive authority against the devisee, and that the lord of the manor could not be entitled to it, as he takes only propter defectum tenentis, and here he had a tenant, and had received his fine upon admittance. His Honor observed, that, if there had been next of kin, a question might have been raised, whether the testator did or did not intend that this sum of

held the charge to be extinct for the benefit of the devisee of the land, yet the adjudication on the appeal was founded on special circumstances, and did not touch the general doctrine.

Observations
Chapman and

on Arnold v.

Gravenor v.

[It will be observed that in Arnold v. Chapman and Henchman v. Att.-Gen., the gift of the money to the executors was good, and might, as Lord Hardwicke observed, be wanted for debts, and, in this view, was well severed from the Hallum. estate, and not merely a charge upon it. (g) In Gravenor v. Hallum, the annual payments were expressly treated as exceptions, and not charges. In Bland v. Wilkins, the grounds of the determination are not known. None of these cases, therefore, are authorities that the benefit of a charge, the gift of which is void ab initio, falls to the heir. We now come to the cases where the decision was in favor of the devisee of the land, all of which will, it is conceived, be found to be cases of mere charges.] 6

£2000 should have all the same qualities as if it had been personal estate at his death. There being no next of kin, the crown took, by force of its prerogative; if real estate, because there was no customary heir, if personalty, because there was no next of kin. On appeal [3 My. & K. 485], Lord Brougham considered that, though the crown might take personalty as bona vacantia, it could not take real estate except by escheat; which had no place here, because copyholds must escheat (if at all),to the lord. He thought that it was not material whether the sum was considered to be excepted out of the devise, and therefore devolving to the heir, as in Arnold v. Chapman, or as a charge upon it, and therefore failing for the benefit of the devisee of the land, as in Jackson v. Hurlock; because, as there was no heir, and as neither the lord (he having a tenant to perform his services), nor the crown could take by escheat, and as the holding it to be personalty was out of the question, his lordship considered that the cestui que trust had failed, and that the devisee of the land had the benefit of the extinction of the charge by the necessity of the case. His lordship observed, too, that the money could not

be raised by the aid of the court, who,
though it would assist the heir if there
had been one, would not have lent itself
to the crown. [As to which see above,
p. *68, n. (q)
(q) But see Tucker v. Kayess, 4 K. &
J. 339.]

6 See, also, 1 Roper on Leg. 500; 2 Redf. on Wills 172. See Macknet v. Macknet, 9 C. E. Gr. (N. J.) 277; Birdsall v. Hewlett, 1 Paige 32; Harris v. Fly, 7 Paige 421; Morris v. Jameson, 2 Penr. & W. 399; Spence v. Robins, 6 Gill & J. 507; Helms v. Franciscus, 2 Bland Ch. 544, 560. In Birdsall v. Hewlett, ubi supra, Chancellor Walworth says: "It is undoubtedly a general rule that legacies charged upon the real estate and payable at a future day are not vested and become lapsed, if the legatee dies before the time of payment arrives. This rule was at first adopted without any exceptions and in direct opposition to that which existed in relation to legacies payable out of the personal estate. This was done for the benefit of the heir at law, who was a particular favorite of the English courts. I am not aware that it has ever been extended to a case where the estate was given to a stranger upon

Decisions in favor of the devisee of the land

charged.

Thus, in Jackson v. Hurlock, (r) A devised to B and her heirs certain manors, charged with the payment of any sum not exceeding £10,000 to such person as he, by any letter or writing to be left with her, should appoint. By a writing so left, he charged on the estate (int. al.) several sums to charitable and superstitious uses, amounting to about £6000. Lord Northington *held that these void legacies must sink into the estate, for the benefit of the devisee. It had been argued at the bar, he said, upon a mistake, as if the testator had intended, at all events, to take £10,000 out of the estate; whereas he meant the reverse. A sum not exceeding £10,000 had put a charge upon the estate which could not take place.

Jackson v.
Hurlock.

Barrington v.
Hereford.

So, in Barrington v. Hereford, decided by Lord Bathurst; which, according to a very short statement by a reporter of a subsequent period, (s) seems to have been a bequest of £1000 to be laid out in land, in trust for B, charged with an annual sum to a charity. It is said that the M. R. gave it (i. e. the annual sum) to the residuary legatee, but that the Chancellor decided in favor of the specific devisee, as arising out of the estate. Sir R. P. Arden, M. R., in Kennell v. Abbott, (t) said, "that Lord Bathurst first thought the heir entitled, upon the cases of Cruse v. Barley, (u) and Arnold v. Chapman; but afterwards his lordship changed his opinion, and it is now perfectly settled, that if an estate is devised, charged with legacies, and the legacies fail, no matter how, the devisee shall have the benefit of it, and take the estate."

Baker v. Hall.

So, in Baker v. Hall, (x) where the testator gave to the minister or clergyman of a certain parish, forever, an annuity or rentcharge of £35, to be issuing out of a certain messuage, &c., for a charitable purpose, with a power of distress. He then devised the premises, (subject to the annuity,) upon certain trusts; and devised all the residue of his real and personal estate not therein before disposed of, upon other trusts. The question was, whether the annuity, the devise of which was void, went to the residuary devisee, or to the specific devisee of the lands. Sir W. Grant said, that the testator appeared to

have expressly excepted the annuity out of the residue of his estate; and could never have had it in contemplation that it should go, in any event, to the residuary devisee; and he decided that it sunk for the benefit of the specific devisee. [It will be observed, that the annuity was not an exception out of the estate out of which it was to issue: that estate was devised subject to it; in other words it was a mere charge. According to the law, as settled at the present day, there could not be a doubt that the residuary devisee would have no claim, for the authorities (y) clearly show that a de*claration of trust in favor of a charity avoids the devise of the legal estate; a rent-charge, therefore, devised as in the above case, never could have existence, and consequently could not form the subject of claim by any person. (z)

tioners' Com

In Cooke v. The Stationers' Company, (a) Sir J. Leach, M. R., distinguished between a charge and an exception; and being Cooke v. Staof opinion, that the legacy, in the case before him, was a pany. charge, held that the devisee was entitled. He observed, that the devise being upon condition to pay the legacies made no difference, being no more than a charge of the legacies; consequently Bland v. Wilkins (b) must be considered as overruled.

Woodhouse.

So, in Ridgway v. Woodhouse, (c) where a testator devised real estate in trust for his wife for her life; but in case his wife's Ridgway v. sister should reside with her, he directed his trustees to retain out of the rents £100 for every day of such residence, and pay the same to a charity. Lord Langdale, M. R., said: "The direction to pay to the charity is void, and consequently the direction to retain, so far as it was intended to operate for the benefit of the charity, was also void, and had no effect; and that purpose failing, I think the direction to retain must fail altogether."

The point under consideration was much discussed in In re Cooper's Trusts, (d) in which there was a specific devise on trust In re Cooper's in the first place to raise a sum of money by sale or

Trusts.

(d) 23 L. J., Ch. 25, 4 D., M. & G. 757. See also Carter v. Haswell, 3 Jur. (N. S.) 788, 26 L. J., Ch. 576; Tucker v. Kayess, 4 K. & J. 339; Sutcliffe v. Cole, 3 Drew. 135; Heptinstall v. Gott, 2 J. & H. 449; In re Clulow's Trusts, 1 J. & H. 667, where an accumulation of rents being stopped by statute, the excess was held to sink in the estate.

"

otherwise; and after raising as aforesaid, the estate was to be in trust for the testator's son and his issue; it was then directed that the money should go to the testator's daughter for life, and afterwards to her children. Then followed a residuary devise. The daughter survived the testator, but died without ever having had a child. Sir W. P. Wood, V. C., treated the distinction between an exception and a charge as settled; the question was to which head the case before him belonged. He said he "did not find a case deciding that a gift so circumstanced as that had been held to be an exception." (e)

*These principles were applied by Sir R. Kindersley, V. C., without hesitation to the case of failure by lapse.(ƒ) Where personal property is bequeathed to A and the heirs of his body, and in case of failure of issue of A, then to B, (which, as is well settled, is an absolute gift to A, if he survive the testator,) it is undetermined whether, if A die without issue in the lifetime of the testator, the gift to B will take effect.7 If we consider that the gift to A, if he survive the