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as expressed by him in the case of Vaughan v. Farrer, was, that a bequest of money for erecting a hospital or school, was not within the mortmain Act; because it did not necessarily follow that any new purchase of land should be made for the purpose which might have been equally well accomplished by building upon land already in mortmain, or by a gift of land, or by hiring a house. In another case it was said that such a bequest to erect a school was good if any piece of ground already in mortmain, or as a mere gift from private generosity, could be procured. But in a subsequent case' where the circumstance of there actually being a piece of land in mortmain in the parish where the charity was to be erected was much insisted upon, Lord Apsley, Chancellor, said, that directions in a wił to erect a school-house in general imports an intention to purchase. And though it appears that there is a vacant piece of ground in the parish, the will does not point at that piece of ground. It does not say to repair or build a school-house on that piece of ground. And his Lordship dismissed the information.
Other cases have been equally opposed to Vaughan v. Farrer, and the Attorney General v. Bowles. And the doctrine seems now to be settled that a bequest
i 2 Vez. 187. k 2 Vez. Jun. 517. Att. Gen. v. Bowles. Ambler, 751, Att. Gen. v. Hyde.
to erect" a charitable foundation imports prima facie, A bequest to
erect imports a that land is to be bought, unless the testator by his purchase. will manifests his purpose that it is to be otherwise procured, or expressly adverts to land already in mortmain". The case of Chapman v. Brown', in which there was a trust for building or purchasing a chapel, where it might appear to the executors to be most wanted, and if any overplus, it was to go to a faithful gospel minister, not exceeding 201. per annum, and if any further surplus, for such charitable uses as the executors should think proper; though standing by itself, a bequest of a residue to such charitable
purposes as the executors should think proper was a good bequest, yet the whole trust was declared void : for the bequest to purchase was clearly void by the words of the Act; the trust to build had been also established to be within the Act; that bequest therefore fell to the ground : then the bequest on behalf of the minister, as being clearly intended for a minister of the chapel so directed to be built, could not stand as the thing failed with which it was inseparably connected. And lastly, although standing by itself, a bequest of a residue to be employed in such charitable purposes as the executors shall think proper is a good bequest; and
* Lord Hardwicke seemed to think that to erect might be taken as meaning to found or endow.
• 8 Vez. Junr. 191. Att. Gen. v. Parsons; and see 3 Bro, C.C. 588.
• 6 Vez. Jun, 191. ! 1 Vez. 534. Att. Gen. 2. Whorwood. Sec 10 Vez. Jun. 534.
supposing it had been legal to bestow the money as testatrix had directed in the two first instances, after such purposes had been answered, there would have been a good bequest of this residue, yet as the prior bequest had failed which was to constitute this residue, and as it was impossible to ascertain how much would have been employed in building the chapel, and no direction could be framed for the master to proceed upon on a reference to him, the testatrix having given no ground for inferring what kind of chapel was intended, this ulterior bequest was held to be void for uncertainty ; and the real estate was decreed to the heir at law, and the personal to the next of kin (5).
How general charitable be
Where property is left generally in trust for quests, without charitable uses without defining them, the Court of of the objects, Chancery will uphold such a trust as a valid bequest, ace to be effect- but then the application either by the trustees, or
the Crown, must be to purposes expressed in the statute 43 El. c. 9. or purposes analogous. If the charitable purposes are defined in the will, they must
And what tho legal notion is of charitable purposes.
(5) The trust of an annuity for a charity charged upon a devised estate being held void under this statute, it was ruled that the annuity did not pass by the residuary disposition, but sunk for the benefit of the specific devisees, 12 Vez. Jun. 497. But note, there was an express exception out of the residue of what he had before disposed ef.
be such as the law recognizes as charitable purposes But a bequest in trust for such ohjects of benevolence and liberality as the trustee in his own discre- ' tion should most approve, cannot be supported as a charitable legacy, but would be void for uncertainty. Liberality and benevolence do not correspond with the legal notion of charity, and not coning within the compass of that terin do not attract the same indulgence with which general charitable bequests have been treated by the court. And therefore, in the case of Morice v. the Bishop of Durham', where the bequest was in these terms, it was decreed a trust for the next of kin. For it was Liscretionary clear that a trust was intended, and wherever that is trusts, express the case, and the trust is ineffectually created, or mendation and
words of recom. fails, the next of kin becomes entitled; but if no considered in
desire-how positive trust is intended to be created, but the equity. devise leaves a discretion in the devisee to make the application or not, it is then considered as an absolute gift; for then the particular application pointed at is an act referred to the will of the devisee, and not imposed as an obligation by the testament. And though words of recommerdation and desire may impose a trust and be considered as imperative, yet that can only be where the objects are certain.
In a word, the indefinite nature and quantum of the subject, and the indefinite nature of the
· 10 Vez. jun. 522
objects, are always used by the court as evidence, that the mind of the testator was not to create a trust.
I shall conclude this subject with noticing three important points in respect to the clause in the statute concerning colleges, determined by Lord Keeper Henley', viz. that a devise, not to the whole body corporate, but for the benefit of particular fellows, is good within the exception. That a devise to colleges as trustees for other charitable uses, is void by the statute. And that the exception extends only to colleges already established when the statute of mortmain was enacted.
Appointment of Guardians by Will.
THE principal object of the statute 4 and 5 Philip and Mary was to prevent the practice of taking away or marrying maidens under 16, against the consent of their parents, but as Mr. Hargrave(1)
• 1 Sir W. Blackst. 90, Case of Christ's College, Cambridge.
(1) Sce Hargr. Co. Litt. 89, a. (14). The reader is referred