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within twelve months, and there is nothing to show that the executor refuses to act, he is entitled to his legacy if he survives the twelve months. Brydges v. Wotton, 1 V. & B. 134.
But if the executor acts fraudulently, the mere taking out probate will not entitle him to his legacy. Harford v.
Browning, 1 Cox, 302. In what
The presumption that a legacy to an executor is given cases the executor is to him in that character for his trouble, may be rebutted: entitled though he
1. If some other motive is expressed, as if the gift is to does not my
friend and executor.” Re Denby, 3 D. F. & J. 350 ; Dix v. Reed, 1 S. & St. 237; Burgess v. Burgess, 1 Coll. 367; Bubb v. Yelverton, 13 Eq. 131.
2. If the gifts to the executors are unequal in amount, or a legacy is given to one and not the other. Cockerell v. Barber, 2 Russ. 585; Jewis v. Lawrence, 8 Eq. 345; Wildes v. Davies, 1 Sm. & G. 475.
3. If the gift is after a life interest. In re Reeve's Trusts, 4 Ch. D. 841.
4. If there is a direction that in the event of the executor's death before the testator, his legacy is to go to his next of kin. In re Bunbury's Trusts, I. R. 10 Eq. 408.
5. The presumption does not arise if the gift is of residue. Parsons v. Saffery, 9 Pr. 578; Griffith v. Pruen, 11
Sim. 202; Christian v. Devereux, 12 Sim. 264. Whether a Whether a gift of residue to executors is a gift to them gift of residue to ex. for their own benefit, or whether they take in trust for ecutors is beneficial
the next of kin, depends on the general scheme of the or in trust. will, and is not affected by the statute 1 Will. IV. c. 40.
Williams v. Arkle, infra.
Thus the following circumstances are in favour of the executors taking beneficially :
If the gift is not to the executors as such, but by name. Williams v. Arkle, L. R. 7 H. L. 606; Re IIenshaw, 12
W. R. 1139; 34 L. J. Ch. 98; Hillersden v. Grove, 21
. Saffery, 9 Pr. 578.
On the other hand, the fact that prior legacies have been given to them, or that the bequest is to them as joint tenants, is against their right to the beneficial interest, though not alone conclusive. Gibbs v. Rumsey, 2 V. & B. 294; Re Henshaw, supra; Saltmarsh v. Barrett, 3 D. F. & J. 279; see Buckle v. Bristow, 13 W. R. 68.
And a direction that the executors are to retain their costs would, it seems, show that they were not to take beneficially. Saltmarsh v. Barrett, supra. .
But a reimbursement clause, where there are continuing trusts, will not have this effect. Romans v. Mitchell, 15 W. R. 552.
So where there is no gift to the executors, a direction that they, their heirs, successors, representatives, or descendants may apply and distribute the same as to them may appear just, makes them trustees for the next of kin. Neo v. Neo, L. R. 6 P. C. 381; see Barrs v. Fewkes, 12 W. R. 666 ; 13 ib. 987.
GIFTS TO CHARITABLE USES.
I. WHAT ARE CHARITABLE GIFTS.
Instances of charit
CHARITY, in the legal sense, does not necessarily imply able gifts. relief of the poor. The stat. 43 Eliz, c. 4, defines various
kinds of charities. But generally it may be said every gift for a public purpose, local or general, is charitable. See cases cited in the note to Loscombe v. Wintringham, 13 B. 87.
Thus gifts for the advancement of education and learning in every part of the world; for the glory of God in the spiritual welfare of His creatures; for the advancement of Great Britain; to any religious institution or purposes; or for charities and other public purposes in a certain parish, are charitable. Whicker v. Hume, 7 H, L. 124; Townshend v. Carus, 3 Ha. 257; Powerscourt v. Powers
. court, 1 Moll. 616; Nightingale v. Goulbourne, 5 Ha. 484; 2 Ph. 594; Wilkinson v. Lindgren, 5 Ch. 570 ; Dolun v. Macdermot, 3 Ch. 676.
So, too, gifts for any educational or religious purpose, not contrary to morality or the law, are charitable. Thornton v. Howe, 31 B. 14; Beaumont v. Oliveira, 4 Ch. 309.
For the construction of a gift to the hospitals of London,
see Wallace v. A.-G., 33 B. 384. Bequest A bequest for objects of liberality or benevolence, or for
bers is not
“purposes of general utility,” is not charitable. Morice v. poses of
liberality Bp. of Durham, 9 Ves. 399; 10 Ves. 521; James v. or bene Allan, 3 Mer. 17; Kendall v. Granger, 5 B. 300; see In not charit
volence is re Jarman's Estate ; Leavers v. Clayton, 8 Ch. D. 584. And a bequest for private charity is void. Ommaney Private
charity. v. Butcher, T. & R. 260. A bequest to a voluntary society existing for charitable What is a
charitable purposes is charitable. is charitable. Cocks v. Manners, 12 Eq. 574.
society. But a gift to a similar society for the use and benefit Voluntary
association of the society is not charitable, the object being not to existing
for private benefit the charitable objects of the community, but the
purposes members of it themselves. Stewart v. Green, I. R. 5 Eq. beit, men 470.
charitable. A gift to a voluntary society existing merely for purposes of religious intercourse and edification of its members is not charitable. Cocks v. Manners, supra.
Nor is a similar gift to a society existing merely for the mutual benefit of its members. In re Clark's Trust, 1 Ch. D. 497; Thompson v. Shakespeare, Jo. 612; 1 D. F. & J. 399; Carne v. Long, 2 D. F. & J. 75; Re Dutton, 4 Ex. D. 54. A gift for the use and benefit of a parish is charitable. Benefit of
parish, A.-G. v. Lord Hotham, T. & R. 209; A.-G. v. Webster,
v 20 Eq. 483. A gift to build or repair the tomb of the testator or his Gift to
build or family, not within a church, is not charitable. Mellick v.
repair a President of the Asylum, Jac. 180; Lloyd v. Lloyd, tomb is not
a 2 Sim. N. S. 255; Adnam v. Cole, 6 B. 353; Rickard v. Robson, 31 B. 244; Hoare v. Osborne, L. R. 1 Eq. 585.
Nor is such a gift within the statute 43 Geo. III. c. 108. Re Rigley's Trust, 15 W. R. 190; 36 L. J. Ch. 147.
Such a gift, therefore, if it involves a perpetuity, is void. Rickard v. Robson, supra; Yeap Cheah Neo v. Ong Ching Neo, L. R. 6 P. C. 381. But bequests to repair the fabric of the church, or even Gift to re
the ornaments within it, such as a monument or tomb, fabric of a church. are charitable. Hoare v. Osborne, L. R. 1 Eq. 585. Position of Dissenters and Roman Catholics are, as regards bequests Dissenters and for charitable purposes, on the same footing as the EstabRoman
lished Church. i W. & M. c. 18; 2 & 3 Will. IV. c. 115, Catholics.
s. 1; A.-G. v. Pearson, 3 Mer. 353, 405. Dissenters. Thus bequests for the maintenance of Protestant Dis
senters, or for the assistance of Unitarian congregations, or for the benefit of Irvingites, are valid. A.-G. v. Pearson, 3 Mer. 353; Shrewsbury v. Hornby, 5 Ha. 406; A.-G. v. Lawes, 8 Ha. 32.
So bequests to be applied to the use of Roman Catholic Catholics.
schools, or of a Roman Catholic college existing for the education of ecclesiastics and laymen, or to promote the Roman Catholic religion, or to assist in the completion of a Roman Catholic cathedral, are good. Bradshaw v. Tasker, 2 M. & K. 221; Walsh v. Gladstone, 1 Ph. 290; West v. Shuttleworth, 2 M. & K. 684; Dillon v. Reilly, I. R. 10
Eq. 152. Jews. By 9 & 10 Vict. c. 59, s. 2, Jews are, in respect to their
, schools, places for religious worship, education and charitable purposes, and the property held therewith, subject to the same laws as Protestant subjects dissenting from the Church of England.
Since this statute bequests to enable persons professing the Jewish religion to observe its rites are valid. Straus
v. Goldsmid, 8 Sim. 614; In re Michel's Trusts, 28 B. 39. Monastic It has been held in Ireland that bequests in favour of orders.
Jesuits and members of other religious orders of the Church of Rome bound by monastic or religious vows are void, as contravening the policy of 10 Geo. IV. c. 7 (see sections 33—36). No doubt the same rule would be applied in England.
Thus bequests to be applied for the education and maintenance of priests of the order of St. Dominick in