such an essential part of the gift that you cannot distinguish any general purpose of charity, but are obliged to say that that mode of doing a charitable act was the only one the testator intended, or at all contemplated, and that he had no general intention of giving his money to charity, then the Court cannot, if the particular mode of doing it fails, apply the money cy près.

On the other hand, if you do see a general intention of benefiting a certain class or number of people, who come within the ordinary definition of objects of charity, and you find that the particular mode the testator has contemplated of doing this cannot be carried out, and you are convinced that the mode is not so essential that you cannot separate the intention of charity from that particular mode, then the Court says that there is a general intention of charity and, as the mode has failed, the duty of the Court is, favouring charity as the Court always does, to provide another mode than that which the testator has pointed out and which has failed." Biscoe v. Jackson (1887), 35 C. D. 460, at p. 463.

6.-Mortmain.

Although, as we have seen, the Courts looked with a favourable eye upon gifts to charity, it was only gifts out of personalty which were allowed to be so given. For prior to the Mortmain and Charitable Uses Act, 1891, a gift of land to a charity was absolutely void, and so in like manner were gifts of impure personalty or "personalty savouring of realty," such as money charged on land, proceeds of sale of land directed to be sold, money secured on mortgage of land, &c.

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Certain particular institutions were excepted from the operation of the Statutes of Mortmain, e.g., the Universities of Oxford and Cambridge and their colleges, the Colleges of Eton, Winchester and Westminster, &c.; and the list has from time to time been added to by statute; while numerous incorporated charities have from time to time received power to accept lands either generally or up to a limited amount (for a complete list see Tudor's Charitable Trusts).

Although the distinction between "pure" and " impure" personalty has been abolished as to testators dying after August 5, 1891, it may be useful to refer briefly to the former law. Since a bequest (unless specially directed otherwise) was considered to be attributable to all the testator's personalty indifferently, that proportion of it which was attributable to the "impure personalty" failed, and the balance was good. Thus, if a testator's personalty at his death consisted of £5,000 cash, or investments equivalent to cash, and £10,000 of "impure personalty," say, a mortgage, any charitable general legacy which was given was only good as to one-third of its nominal amount unless the testator had directed it to be paid out of the pure personalty only. The same principle, with the necessary elaboration, was applied to gifts of residue.

Under the above mentioned Act (which does not extend to Scotland or Ireland), land may be assured by will for charitable uses, but must be sold within a year from the testator's death, and the proceeds go for the benefit of the charity; while the distinction between the pure or impure personalty is abolished.

If land is required for actual occupation for the purpose of the charity, the Court or the Charity Commissioners may sanction its retention or the acquisition of land out of money directed to be laid out in the purchase of land.

CHAPTER XXIX.

CAPITAL AND INCOME OF THE ESTATE.

1.-Apportionment.

WHEN a testator dies it almost always happens that various sums have accrued due or are accruing due to his estate. Sums which have accrued and are payable, such as ordinary debts, dividends declared but not paid, &c., form part of the capital of the testator's estate when they are paid. But with regard to sums accruing due, such as dividends, rents, interest on mortgage, &c., in the nature of income, which are payable at intervals, an apportionment must be made after they have been paid, and the proportion of such sums attributable to the period prior to the testator's death which is included in the period for which the payment is made, forms part of the capital of the testator's estate, while the balance forms part of the income of the testator's estate.

By s. 2 of the Apportionment Act, 1870, it is provided that all rents, annuities, dividends and other periodical payments in the nature of income (whether reserved or made payable under an instrument in writing or otherwise) shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly. By s. 5,"rents" includes rent service, rent charge

and rent seck and also tithes and all periodical payments or renderings in lieu of or in the nature of rent or tithes. "Annuities" includes salaries and pensions. "Dividends" includes (besides dividends strictly so called) all payments made by the name of dividend, bonus, or otherwise out of the revenue of trading or other public companies, divisible between all or any of the members of such respective companies, whether such payments shall be usually made or declared at any fixed times or otherwise; . . . but the said word "dividend" does not include payments in the nature of a return or reimbursement of capital.

By Sect. 6, annual sums made payable in policies of assurance of any description are not apportionable.

By Sect. 7, the provisions of the Act are not to extend to any case in which it is or shall expressly be stipulated that no apportionment shall take place.

It may be noted that the provisions for apportionment apply not only on a death, but also where any change of interest takes place, e.g. upon the cesser of a period of accumulation, or the cesser of a life interest by an event other than death.

The Act applies to the dividends of all public companies (limited companies, chartered companies, railway companies, &c.) and generally to the income of nearly every kind of property capable of producing income, even although the income is irregularly paid or is paid by way of bonus.

The only exception of any magnitude is that of a private partnership; the profits declared after the testator's death by a private partnership of which he was a partner are not apportionable under the Act,