No. IX. 43 Eliz. c. 4. The Enquiry. The Commissioners' orders. The Commissioners' orders And after the said commissioners or any four or more of them (upon calling the parties interessed in any such lands tenements rents annuities profits hereditaments goods chattels money and stocks of money) shall make enquiry by the oaths of twelve men or more of the said county (whereunto the said parties interessed shall and may have and take their lawful challenge and challenges,) and upon such enquiry hearing and examining thereof, set down such orders judgments and decrees as the said lands tenements rents annuities profits goods chattels money and stocks of money may be duly and faithfully employed to and for such of the charitable u-es and intents before rehearsed respectively, for which they were given limited assigned or appointed by the donors and founders thereof: which orders judgments and decrees, not being contrary or repugnant to the orders statutes or decrees of the donors or founders, shall by the authority of this present parliament stand firm and good, according to the tenor and purport thereof, and shall be executed accordThe Commisingly, until the same shall be undone or altered by the Lord Chancellor of sioners' orders England or Lord Keeper of the Great Seal of England, or the Chancellor of the county palatine of Lancaster, respectively, within their several jurisdictions, upon complaint by any party grieved to be made to them. II. Provided always, That neither this Act nor any thing therein contained shall in any wise extend to any lands tenements rents annuities profits goods chattels money or stocks of money given limited appointed or assigned, or which shall be given limited appointed or assigned, to any college hall or house of learning within the Universities of Oxford or Comdral Churches. bridge, or to the colleges of Westminster Eaton or Winchester, or any of them, or to any cathedral or collegiate church within this realm. shall be executed. altered. Colleges Halls chester, Cathe 1 Lev. 284. City, Town Corporate, College, Hospital, Free-School. Ordinary's jurisdiction. None shall be or Juror which hath any part of the lands or goods in ques tion. Purchasers of the lands bona fide. III. And provided also, 1 hat neither this Act nor any thing therein shall extend to any city, to town corporate, or to any the lands or tenements given to the uses aforesaid within any such city or town corporate, where there is a special governor or governors appointed to govern or direct such lands tenements or things disposed to any the uses aforesaid, neither to any college hospital or free school which have special visitors (2) or governors or overseers appointed them by their founders. IV. Provided also, and be it enacted by the authority aforesaid, That neither this Act nor any thing therein contained, shall be any way prejudicial or hurtful to the jurisdiction or power of the ordinary, but that he may lawfully in every cause execute and perform the same as though this Act had never been had or made. V. Provided also, and be it enacted, That no person or persons that hath or shall have any of the said lands tenements rents annuities profits hereditaments goods chattels money or stocks of money in his hands or possession, or doth or shall pretend title thereunto, shall be 'named a commissioner or a juror for any the causes aforesaid, or being named shall execute or serve in the same. VI. And provided also, That no person or persons which hath purchased or obtained, or shall purchase or obtain, upon valuable consideration of money or land, any estate or interest of in to or out of any lands tenements rents annuities hereditaments goods or chattels, that have been or shall be given limited or appointed to any the charitable uses above mentioned, without fraud or covin, having no notice of the same charitable use, shall not be impeached by any decrees or orders of the commissioners above mentioned for or concerning the same his estate or interest: Recompence by And yet nevertheless, be it enacted, That the said commissioners, or any four or more of them, shall and may make decrees and orders for recompence to be made by any person or persons who being put in trust, or having notice of the charitable uses above-mentioned, hath or shall break the same trust, or defraud the same uses, by any conveyance gift grant lease demise release or conversion whatsoever, and against the heirs executors and administrators of him them or any of them having assets in law or equity, so far as the same assets will extend. those which break the trust. (2) As to the exposition of this clause, see the case of Kirkby Ravensworth, 8 East. 22115 Vesey, 305, and the cases there cited. No. IX. 43 Eliz. c. 4. VII. Provided always, That this Act shall not extend to give power or authority to any commissioners before mentioned to make any orders judgments or decrees for or concerning any manors lands tenements or other hereditaments assured conveyed granted or come unto the Queen's Majesty, to the late King HENRY the Eighth, King EDWARD the Sixth, or Queen MARY, by Act of Parliament surrender exchange relinquishment Land assured to escheat attainder conveyance or otherwise: And yet, nevertheless, be it King Henry 8, enacted, That if any such manors lands tenements or hereditaments, or Edward 6, any of them, or any estate rent or profit thereof, or out of the same or any Queen Mary part thereof, have or hath been given granted limited appointed or as- and Queen signed to or for any the charitable uses before expressed, at any time Elizabeth. sithence the beginning of her Majesty's reign; that then the said commissioners, or any four or more of them, shall and may, as concerning the same lands tenements hereditaments estate rent or profit so given limited appointed or assigned, proceed to enquire and to make orders judgments and decrees according to the purport and meaning of this Act, as before is mentioned; the said last mentioned proviso notwithstanding. VIII. And be it further enacted, That all orders judgments and decrees Certifying of of the said commissioners, or of any four or more of them, shall be cer- the orders. tified under the seals of the said commissioners, or any four or more of them, either into the Court of the Chancery of England, or into the Court of the Chancery within the county palatine of Lancester, as the case shall require respectively, according to their several jurisdictions, within such convenient time as shall be limited in the said commissions. IX. And that the said Lord Chancellor or Lord Keeper and the said Order for the Chancellor of the Duchy shall and may, within their said several juris- execution of dictions, take such order for the due execution of all or any of the said the Commis judgments decrees and orders as to either of them shall seem fit and sioners' Decree. convenient. Cro. Car. 40. X. And that if after any such certificate or certificates made, any person A remedy for or persons shall find themselves grieved with any of the said orders judg- any person ments or decrees, that then it shall and may be lawful to and for them or any grieved by the of them, to complain in that behalf unto the said Lord Chancellor or Lord Commissioners' Keeper, or to the Chancellor of the said Duchy of Lancaster, according to Decree. their several jurisdictions, for redress therein: And that upon such complaint, the said Lord Chancellor or Lord Keeper, or the said Chancellor of the Duchy, may according to their said several jurisdictions, by such course as to their wisdoms shall seem meetest the circumstances of the case considered, proceed to the examination hearing and determining thereof; (S) and upon hearing thereof shall and may annul diminish álter or enlarge the said orders judgments and decrees of the said commissioners, or any four or more of them, as to either of them in their said several jurisdictions shall be thought to stand with equity and good conscience, according to the true intent and meaning of the donors and founders thereof; and shall and may tax and award good costs of suit by their Cost of Suit discretions against such persons as they shall find to complain unto them, against the without just and sufficient cause, of the orders judgments and decrees complainers. before mentioned. (3) In Saul v. Wilson, 2 Vern. 118, it is intimated, that a decree founded on this Act is final, and that there can be no re-hearing or appeal to the House of Lords-but in 3 Bl. Com. 428, it is said, that the proceeding is considered as an original cause throughout, and that an appeal lies of course, notwithstanding any loose opinions to the contrary and for which the learned commentator refers to Duke, 62, 128-Burford v. Senthill, Ch. 9, May 1743. [ No. X. ] 7 & 8 William III. c. 37.—An Act for the Encouragement of charitable Gifts and Dispositions. WHEREAS it would be a great hindrance to learning and other good 7 & 8 W. III. and charitable works, if persons well inclined may not be permitted c. 37. 'to found colleges or schools for encouragement of learning, or to aug- 9 Geo. 2, c. 36. ⚫ment the revenues of colleges or schools already founded, by granting No. X. 7&8 c 37. lands tenements rents or other hereditaments to such colleges or schools, or to grant lands or other hereditaments to other bodies politick or incorporated now in being, or hereafter to be incorporated for other good William III. and publick uses;' be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled, and by the authority of the same, That it shall and may be lawful to and for the King our most gracious Sovereign Lord, and for his heirs and successors, when and as often and in such cases as his Majesty his heirs or successors shall think fit, to grant to any person or persons bodies politick or corporate their heirs and successors, license to alien in mortmain, and also to purchase acquire take and hold in mortmain in perpetuity or otherwise, any lands tenements rents or hereditaments whatsoever, of whomsoever the same shall be holden. 9 H. 3, c. 36. The King may grant Licenses to Aliens, or purchase in Mortmain. Lands so aliened not subject to forfeiture. No Manors Lands, &c. nor money to be II. And it is hereby declared, That lands tenements rents or hereditaments, so aliened or acquired and licensed, shall not be subject to any forfeiture for or by reason of such alienation or acquisition. [ No. XI. ] 9 George II. c. 36.—An Act to restrain the Disposition of Lands, whereby the same become unalienable. 9 Geo. II. c. 36. WHEREAS gifts or alienations of lands tenements or hereditaments in Mortmain, are prohibited or restrained by Magna Charta a id 'divers other wholesome laws as prejudicial to and against the common utility; nevertheless this publick 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; for remedy whereof be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled, and by the authority of the same, That from and after the twenty-fourth day of June which shall be in the year of our Lord one thousand seven hundred and thirty-six, (1) no manors lands tenements rents advowsons or other hereditaments corporeal or incorporeal whatsoever, (2) nor any sum or sums of money goods chattels stocks in the publick funds securities for money, or any other personal estate whatsoever to be laid out or disposed of in the purchase of any lands tenements or hereditaments, (3) shall be before the death of the donor, and inrolled, &c. laid out in lands, to be given for charitable uses, unless by deed indented, and executed before two witnesses, 12 months (1) The Statute does not extend to wills previously made, but a republication of a will, or a confirmatory codicil, made after the statute, renders the dispositions void.-Willet v. Sandford, 1 Vesey, 178-Attorney-General v. Heartwell, Ambl. 451. (2) The statute has received a very extensive construction, with respect to the subjects upon which it operates, as being real estate, and it is held to comprehend money due on mortgagesAttorney-General v. Meyrick, 2 Vesey, 44-even as forming a part of a general residue-Pickering v. Lord Stamford, 2 Vesey, jun. 272-(See also White v. Evans, 4 Vesey, 21;) a right to lay mooring chains in the Thames-Negus v. Coulter, Amb. 367; a sum secured by mortgage of turnpike tolls-Knapp v. Williams, 4 Vesey 430; or by the bonds of the commissioners of a turnpike Howse v. Chapman, 4 Vesey, 542; so money secured by an assignment of county rates, under a special Act of Parliament Finch v. Squire, 10 Vesey, 41. Although the statute contains no express words prohibiting a bequest of money, to be produced by the sale of land for charitable purposes, it is settled by construction, that such a bequest is within the spirit and meaning of the law... Per Sir Wm. Grant; Curtis v. Hutton, 14 Vesey, 537. (3) The prohibition, as to money to be laid out in lands, extends to a disposition to pay off the mortgate on a chapel---Corbyn v. French, 4 Vesey, 418; or to enable trustees to complete a purchase of Land, ibid. arg. In Widmore v. Woodroffe, Amb. 636, 1 Bro. Ch. 13, a devise to the corporation of Queen Anne's bounty, was held void, because the corporation are bound by their rules, confirmed by the King under the great seal, to lay out their funds in the purchase of lands. It was urged, that a power was reserved to the crown to make new rules, and the point was suggested, whether, if such a law were to be made, it would not extend to the case; but by the Lord Chanchancellor (Lord Camden,) the rules are of force given granted aliened limited released transferred assigned or appointed, or any ways conveyed or settled to or upon any person or persons bodies politick or corporate or otherwise, for any estate (a) or interest whatsoever, or any ways charged or incumbered by any person or persons whatsoever in till they are altered, and were in force at the death of the testator, when the legacy was to take place ---and upon the authority of this case, a disposition to the Society for increasing Clergymen's Livings in England or Wales was held void, as 1.0 other society was deemed to meet the description in the will.---Middleton v. Clitheroe, 3 Vesey, 734. But now, by statute 13 Geo. III. c. 107, ante Part I. Class II. No. 29, devises of land to the Governois of Queen Anne's bounty are expressly allowed. A bequest of 300l. to be laid out in the purchase of lands, or on some real Security, is void.--Attorney-General v. Bowles, 3 Atk. 806. Where money was given to be laid out in erect ing a school, Lord Hardwicke intimated, that if any other person would give a piece of land, the money might be so applied, S. C. but the contrary doctrine is now completely settled---and in the Attorney-General v. Nash, 3 Bro. Ch. 588, it was held, that a bequest to build a house for a schoolmaster was void, although the trustees purchased lands with their own money, which they offered to give to the charity. So a bequest to erect and build a hospital is void.--Attorney-General v. Heartwell, Amb, 451. So Vaughan . Farrer, 2 Vesey, 182. A bequest for the purpose of erecting a freeschool void, although there was a piece of vacant land in mortmain within the parish, on which part of a school-house stood, the will not pointing at those premises.---Attorney-General v. Hyde Vide case of Royston free-school, Ambl. 751, 1 Bro. Ch. 444. Note. A bequest to build a new parsonage house is good -Ghibb v. Attorney-General, Amb. 373.-and it is evident, from all the cases, that a disposition for building upon or improving land already in mortmain is valid.-See the several cases cited in the Attorney-General v. Parsons, 8 Vesey, 186. Where there there is a discretion to invest money in land or in a manner not prohibited-as in personality (or in land in Scotland, which is excepted in sec. 6,) it seems to be agreed, that the disposition is good, and in that case the trustees may exercise their discretion, by investing the money in land.-Vi. Vaughan v. Farrar, 2 Vesey, 182-Grimmett v. Grimmett, Amb. 210 Soresby v. Hollins, and Grayson v. Atkinson, cited ibid-Curtis v. Hulton, 14 Vesey, 537. The case of Grimmett v. Grimmett is a strong case of construction in support of such discretion. But where the interest of 1201. was to be paid to the poor, and the money was to be laid out in land as soon as the trustees could meet with a purchase, it was held, that the direction to invest in land was imperative, and the disposition therefore void. Englishe v. Orde, Highmore on Mortmain, 82-See also Grieves v. Case, 4 Bro. 67. A disposition to purchase land for a charity" and in case the charity could not by law take place according to her directions, to lay out the money in such charitable uses as near to her intentions as could be, and the laws would be"--ruled to No. XI. 9 Geo. II. c. 36. be fraudulent and void.---Attorney-General v. Tyndall, Amb. 614. Where a disposition of land for charitable purposes is void by the statute, a personal funa artached to it is void also--as a gift of houses, as alms-houses for certain poor objects, and an annual sum to each house.---Attorney-General v. Goulding, 2 Bro. Ch. 428, confirmed under circumstances similar in effect, Attorney General v. Whitchurch, 3 Vesey, 141. So a bequest of a residue to purchase or build a chapel, where the executors might think it most wanted, and any overplus to go to the support of a minister, not exceeding 201. a year, and any further overplus to such charitable purposes as the executors might think proper---the purchasing or building a chapel, (which according to the cases above cited could not be supported,) being the primary object, the whole was void. See also, to the same effect, Attorney-General v. Davies, 9 Vesey, 535. As to the case of the object of building a chapel being left vague in respect of the requisite amount.--Chapman v. Brown, 6 Vesey, 404. But a disposition may be partly good and partly void when the purposes are distinguishable-as where a person having founded alms-houses by a valid deed, bequeathed a sum of money in trust, to apply the surplus interest in rebuilding repairing altering adding to or improving the messuages or tenements ground and appurtenances before conveyed, the disposition was declared valid, so far as the money was to be applied in rebuilding repairing altering or improving the premises, and so far as the additions should be made upon the land before conveyed-but bad so far as any addition should be made, by acquiring other land. AttorneyGeneral v. Parsons, 8 Vesey, 186, Note. The discretionary power of the trustees seems not to have been adverted to. Where a testatrix gave a house upon trust, to deposit in it the books thereafter given and purchased-and gave to trustees all the religious books which she might leave at her death, and her personal est: te upon trust, to apply the residue of her estate for the use of the Welch circulating schools-and for the increase and improvement of Christian knowledge, and promoting religion as the trustees should think proper-and to purchase new Bibles, &c. for such pious uses as were intended concerning those already bought-and, in the mean time, to deposit the said Bibles, &c. in the said house. The disposition as to the personal estate was sustained, the Lord Chancellor being of opinion that the charity' was not so engrafted into, connected with, and placed upon an establishment in real property, that the charity could not subsist, as the real estate was so given- that the house was meant to be subservient to the distribution of books, but not necessarily connected with that purpose.-Attor ney-General v. Stepney, 10 Vesey, 22, Vide 2 Mars, 61. 6 Taunt. 359. (a) A testatrix after charging her estate with No. XI. 9 Geo. II. c. 36. trust, or for the benefit of any charitable uses whatsoever; (4) unless such gift conveyance appointment or settlement of any such lands tenements or hereditaments sum or sums of money or personal estate (other than stocks in the publick funds,) be and be made by deed indented sealed and delivered in the presence of two or more credible witnesses, twelve calendar months at-least before the death of such donor or grantor (including the days of the execution and death,) and be inrolled in his Majesty's High Court of Chancery within six calendar months next after the exe the payment of an annuity, devised the same to G. S. his heirs and assigns for ever; but her wish and desire was, that G. S., in his life-time, should convey the estate to some charitable uses, the choice of which was left entirely to his discretion: and subject to this, G. S. was to enjoy the estate to his own use for his life. Held, that this was a devise void by 9 Geo. 2. c. 36, by which act the estate given and not merely the trust, was made void; and that the legal estate, upon the death of the devisee for life, descended on the heir at law. Doe, d. Burdett v. Wrighte, 2 B & A. 710. (4) In Durour v. Motteux, 1 Vesey, 320, a testator devised 12001. or thereabouts, to be laid out in the purchase of land for certain charitable uses confessedly void- the remainder of the lands to pay an annuity of 101. to a minister, to preach a sermon to his memory, and keep his tomb-stone in repair, and certain annual sums to the clerk and sexton, and the corporation of St. Albans, for keeping the accounts. The whole was adjudged to be void. The annuity to the minister was a charitable use which was not prevented by the addition of the sermon-so were the annuities-and the rest was not only a vain concomittant of the charitable bequest, but a circumstance attending the general execution thereof; and if that construction were not made, it might elude the Act of Parliament, for the reward for doing those offices might be as great as the testator pleased; so the gift to the corporation was a reward for their service, and but a circumstance attending the charitable bequest; and though the keeping the accounts was not void, yet if the charity on which it was to attend was void, it must be so too. A disposition to bring water from A. to B. for the use of the inhabitants of a town, is a charity and void. Jones v. Williams, Ambler, 651. So of money from land to be appropriated to the improvement of a town-House v. Chapman, 4 Vesey, 542; for the purpose of establishing a botanical garden, the testator declaring that he thought it would be a public benefit. Townley v. Bedwell, 6 Vesey, 194. In Doe dem Philips v. Aldridge, 4 T. R. 264, land was devised to Aldridge upon trust, that he should convey the same to take place after his decease for the support of preaching the word of GOD at the meeting-house at L, and expressing that the testator expected he would settle and forward every thing to promote and carry on the work of GOD at L- both in his lifetime and after his decease, and it was held, that though the subsequent limitation was void the defendant's life estate was clearly good. [There can be little doubt, that if no objection had existed to the legality of the devise, the expression of the expectation would have been deemed imperative; for which see several cases cited in a note to the report; and in the case next mentioned, Lord Commissioner Ashurst observed, that perhaps it was not so much looked into as it might have been. It appears also to have been decided in the absence of Ashurst and Buller J. and with that kind of hurry which is always to be regretted in the administration of justice.] But in Grieves v. Case, 4 Bro. Ch. 67, 1 Vesey, jun. 548, upon a devise of money to be laid out in lands for Mendham for life; afterwards as to part for Eastaugh for life; and as to the remainder to the preacher of a certain chapel for the time being, he and E. exchanging the duty; and after the decease of both, to the preacher or preachers at the chapel, with a proviso that if Mendham or Easthaugh should withdraw preaching at the chapel, to go to the preachers appointed in their room, the whole was determined to be void. And per Lord Commissioner Eyre, " It was argued that there was a personal bounty intended for M. and E. I agree that there was; but it is equally apparent, that it flowed from a confidence in them in the character of ministers, and not in any other way. Then it comes to the question, whether if a plain trust and disposition to a charitable use is manifested by the will, and intended throughout, but if that disposition is also manifested with a certain degree of personal bounty and favour to particular objects that will take the case out of the statute: but I am of opinion, that if the personal bounty cannot be separated from the general object in respect of which they are to have that preference, it is not sufficient." Upon a devise to trustees to take a house as a school, and that the children and grand children of certain relations of the testator should be educated there, and then placed out as apprentices; and that such other boys and girls should be placed there as the trustees should think fit: the disposition was held good so far as regarded the particular relations coming in esse within the time allowed by law; and void so far as it went to establish a charity for general purposes;-the Lord Chancellor declared he did not mean to prevent the trustees from taking other children as long as the school was to be kept open for the children and grand children, Blandford v. Thackerell, 2 Vesey, jun. 238. 4 Bro. Ch. 394; but see White v. White, 7 Vesey, 423. Attorney General v. Price, 17 Vesey, 371. Isaac v. De Friez, note, ibid. in which dispositions to poor relations were sustained as general charities. In Curtis v. Hulton, 14 Vesey, 537, it was contended, that a disposition of land for charitable purposes in Scotland or elsewhere out of England was good, but ruled contra. |