We have already seen that the produce of real estate in England cannot be given for the benefit of a charity in Scotland (f), and that a bequest of money to be laid out in land either in England or Scotland, for the benefit of a charity in the latter country, is void (g). But a bequest of money to a religious society in Scotland, to be laid out in the purchase of heritable securities there, the interest to be applied towards the education of poor children, is valid; although it was contended, that the bond indigent children, or in favour of universities, or other public lawful societies, to be holden either in blanch or in feu-farm (names of tenures in Scotland); and whatever the society be to whom the donation is made, the superior must lose all the casualties of superiority, for the reason before assigned, ante, p. 3. As a consequence of this, lands cannot be mortified without the superior's consent. Craig. lib. 1, Dieg. 11, s. 21. Upon that ground, and to prevent the crown revenue from being impaired by the loss of its casualties, signatures of lands in favour of corporations will not be allowed to pass.-Ersk. Inst. book ii. tit. 4, ss. 10, 11. The law of Scotland makes no distinction as to the solemnities or formalities, requisite to the validity of deeds, between those which concern charitable uses and other deeds; and therefore, the Court of Session will not aid a defective deed, because the subject is to be applied to a pious use. It was observed many years since, that mortifications to hospitals were growing exorbitant in Scotland, and that it were to be wished that the statute 9 George II. c. 36, had been extended there, to restrain them.-1 M'Douall's Inst. 612, 613. It was decided, that a piece of ground granted in fee for building a church, with a provision in the charter, that it should revert to the superior if at any time it were applied to secular purposes, might be sold when it became necessary to have a larger church than could be built on the area, provided the price were applied to that purpose, on the ground, that such a plan was not adverse to the intention of the original grant.Johnston v. The Magistrates of Canongate, May 30, 1804; Dict. Dec. 15112. So where lands held of the crown, which afforded a freehold qualification, were vested in trustees for charitable purposes, it was decided, that they might dispose of the superiority in order to increase the trust fund.— Trustees of Mrs. Moore's Mortification v. Wilson, June 25, 1814; Fac. Col. 663. (f) Curtis v. Hutton, 14 Ves. 537 ; ante, pp. 166-168. (g) Attorney General v. Mill, 3 Russ. 328; S. C. 5 Bligh, N. S. 593; 2 Dow & Clark, 393; ante, pp. 172, 173. which would descend to the heir of the obligee was analogous to land (h). A testator, the captain of an India ship, when at sea by his will directed the interest of 5000l. to be invested in trust, with the magistrates of Inverness for the time being, the interest of such sum to be appropriated for the education of five boys in succession, to be selected from the descendants of different families named; the said sum of 5000l. as soon as might be expedient, to be invested in lands in the country. By a codicil dated in London, the testator gave 50001. “in trust, with the magistrates of Inverness, added to the 50007. in the first part of this will, intended there for the education of certain boys, the interest of the two sums, making in all 10,000Z.," was directed to be paid to a person for life," and after her decease, that sum to be vested in lands for the education of boys, as above." By two other codicils, made at sea, the testator revoked the life interest, and directed the 10,000l., immediately upon his own death, to be appropriated for the education of boys as above described. A question was raised, on an appeal to Lord Eldon, whether the legacy of 10,000l. was not void under the 9th George II. c. 36, or whether it was within the sixth section of that act (i). It was contended, that the exception in the act was very peculiar, not being general as to the whole operation of the act, but stating particularly in what respect the act should not have operation in Scotland; and that the special terms of the clause, which was confined to estates locally situated in that country, furnished decisive evidence that a general exception was not intended, and that the disposition in question, was not of real or personal estate in Scotland, but of personal estate in England, which in contemplation of law, has locality (j). Lord Eldon decided that the bequest was good, observing that, "upon examining the case of Oliphant v. Hendrie, in the register's book, there appears to be nothing special in it. (h) Oliphant v. Hendrie, 1 Br. C. C. 571. (i) Ante, p. 257. (j) See 1 Br. C. C. 127; 4 Ves. 161. The testator gave a sum of money to be laid out in heritable securities in Scotland, for charitable purposes; and Lord Thurlow's decree was that the legacy was good. This is a direct decision upon the point, and if I had more doubt upon it, that authority binds me to determine that this bequest is good" (k). The Court of Chancery never gives directions for establishing a charity in Scotland, but directs the money to be paid to the trustees, who must administer it according to the law of Scotland, and under the directions of the Court of Session, in case it becomes necessary to resort to any court for direction. Therefore, where 35007. South Sea Annuities were given to the plaintiffs to be applied to the maintenance of poor labourers residing in Edinburgh and towns adjacent, with power for the Lord Provost, &c. to sell the stock and invest it in the purchase of other stock, or in the purchase of lands, the income to be applied in the same way as directed as to the annuities (1), Lord Hardwicke, being of opinion that he could not give any directions as to the distribution of the money, some of the courts in Scotland having jurisdiction on the subject, ordered the annuities to be transferred to such persons as the plaintiffs should appoint, to be applied to the trusts in the will. The decree declared that the trust ought to be carried into execution, except as to any power thereby given to invest in the purchase of lands in England. So where a testator, living in England, by his will bequeathed a moiety of his residuary estate "to be laid out in the public funds, or some such security, on purpose to bring one annuity, income or interest, for the benefit of a charity or school, for the poor of the parish of Dollar and shire of Clackmannan, where he was born, in North Britain or in Scotland; that he gave and bequeathed to the minister and church of the said parish for ever, say to the minister and church officers for the time being, and no (k) Mackintosh v. Townsend, 16 burgh v. Aubery, Ambl. 236, and Ves. 330. note, by Blunt. (1) Provost, Bailiffs, &c. of Edin other person should have power to receive the annuity but the aforesaid officers for the time being, or their agent appointed for the time by them." On an information and bill filed by the ministers and elders of the parish of Dollar against the testator's executors, a decree was made, (reversing the former orders, so far as they confirmed the Master's report, and directed an execution of the scheme approved by him) ordering various sums of stock, constituting a moiety of the testator's estate, to be sold, and the money arising from the sale to be laid out in the purchase of 3 per cent. consols in the name of the Accountant General, in trust in the cause, the dividends to be paid to certain persons therein named, or to such other person or persons who, for the time being, should be the minister and church officers of the said parish of Dollar, to be by them applied for the benefit of a charity or school for the poor of the said parish, pursuant to the will of the said testator (m). A society in Scotland for propagating Christian knowledge, having been incorporated under that name by letters patent, first of Queen Anne, and afterwards of George II., a testator by his will, dated 16th of September, 1789, made the following bequest:-"I give and bequeath to my executors, in England, 20,000l. sterling, in trust, to invest the same in the capital stock of 3 per cent. reduced annuities, at the Bank of England, which said stock I do hereby give and bequeath to the treasurer for the time being of a society in Scotland for propagating Christian knowledge, to apply the interest or dividends thereof, from time to time, in equal portions, to and for the uses and purposes of the first and second patent; and I will and order that no part of the said legacy be at any time laid out or employed for the purpose of building, or in repairs or ornaments, but that the same be wholly and solely applied for the charitable and pious uses and purposes of the said society." In a suit for the administration of the testator's assets, the (m) Attorney General v. Lepine, 465; 19 Ves. 309. 2 Swanst. 181; S. C. 1 Wils. C. C. court ordered the legacy to be paid and transferred by the executors for the use of the charity, and the treasurer of the charity was to declare the trusts thereof accordingly. The Accountant General certified that he had laid out the legacy in the purchase of Bank 3 per cent. Annuities, which had been transferred to his account and accepted by him, in trust, in the cause, to the account of the treasurer of the society in Scotland for propagating Christian knowledge. The dividends of the stock had been paid to the treasurer for the time being of the society. On a petition, which had not been served on the Attorney General or any other party in the cause, presented by the society and their treasurer, an order was made for the transfer of the stock to the society, the petitioners being the persons entitled to the possession of it, and for the payment of the dividends, if there were any then in court, to the treasurer (n). 7. Gifts of real and personal estate in Ireland.] The statute 9 Geo. II. c. 36, does not extend to Ireland, where there is no similar restraint on devises to charitable uses (o). A testator having a considerable estate in land, and also a large personal estate upon mortgage of lands in Norfolk, by his will, in 1740, gave to trustees a sum of 7000l. to be laid out, after the death of his wife, in the purchase of lands in Ireland, the rents to be distributed among poor persons in Ireland who should appear to be related to him, or, in default of poor relations, to poor persons in the county of Antrim, in Ireland. The executrix, who proved the will by her own will, after reciting the will of the above testator, and that his personal estate was out upon mortgage in Norfolk, ordered her real estate to be sold, and 7000l. to be paid to the uses declared by the will of the first testator. It was contended that, as the whole personal estate was upon mortgage, in Norfolk, it (n) Emery v. Hill, 1 Russ. 112. Ball & B. 154; ante, pp. 110, 111, 112. |