rents and

in value of given to charity, but the objects pointed out do not exhaust the fund, the Court distributes the surplus cy près. Arnold v. A.-G., Shower P. C. 22; Pieschel v. Paris, 2 S. & St. 384.

profits given to charity.

Whole

rent given

the in

Where a sum, which in fact amounts to the whole of to charity, the rents and profits of certain land, is given to charity, this is in effect a dedication to charity of the land itself, and any increase in the rents and profits goes to the same purposes. Thetford School Cuse, 8 Co. R. 130 b.

crease also passes.

When certain payments are directed

out of the

rents for

charitable objects, leaving a surplus, the increase does

not pass to the

objects.

Similarly, if the testator has shown an intention to dispose of the whole to charitable purposes, though there may be a residue undisposed of, it will go to the same purposes. A.-G. v. Drapers, 2 B. 508.

And where the whole rents are given in certain proportions among several charitable objects, any increase is apportioned rateably among those objects, subject to the discretion of the Court. A.-G. v. Jesus Coll., 29 B. 163; A.-G v. Marchant, L. R. 3 Eq. 424; Merchant Taylors v. A.-G., 11 Eq. 35; 6 Ch. 513; A.-G. v. Wax Chandlers, L. R. 6 H. L. 1.

But where rents and profits of land are given to a corporation and certain fixed charitable payments are directed, which do not exhaust the whole, and there is no gift of the residue, the residue belongs to the corporation. A.-G. v. Mayor of Bristol, 2 J. & W. 291; A.-G. v. Brasenose Coll., 2 Cl. & F. 295; A.-G. v. Trinity College, 24 B. 383.

A fortiori, if the surplus is expressly given to the corcharitable poration, though the amount of it be specifically mentioned by the testator, any increase, after the payments directed have been made, belongs to the corporation. Southmolton v. A.-G., 5 H. L. 1; Mayor of Beverley v. A.-G., 6 H. L. 310; A.-G. v. Dean of Windsor, 8 H. L. 369.

If, among the particular payments directed, some are not charitable, but are to be made to individuals and

cannot have been intended to abate, there is an additional argument that none of the particular payments were either to abate or to increase, and that the surplus, whatever it might be, was to go to the donees in trust. A.-G. v. Cordwainers, 3 M. & K. 534; Mayor of Beverley v. A.-G., 6 H. L. 310.

On the other hand, if the surplus undisposed of is insignificant, and there is a direction, that the particular payments are to abate proportionately in the event of depreciation of the property, the inference arises, that they were in like manner to share proportionally in any increase. Mercers' Co. v. A.-G., 2 Bl. N. S. 165.

III. ADMINISTRATION OF CHARITABLE GIFTS.

charitable

When the bequest is to an existing charitable institu- A gift to a tion, the bequest is left to be administered as part of the institution funds of that institution. Society for P. G. v. A.-G., tered by 3 Russ. 142; Wellbeloved v. Jones, 1 S. & St. 43.

But if the bequest is to an existing charitable institution for purposes other than the purposes for which it exists, the Court will administer the bequest by a scheme to be settled in Chambers, ib.

is adminis

the institu

tion.

trustees for

purposes is adminis

is

And, generally, wherever trustees are interposed by the A gift to testator, his object will be carried out by the Court by a charitable scheme; but if no trustees are interposed the charity is administered under the Sign Manual. Moggridge v. tered by Thackwell, 7 Ves. 36; Raice v. Abp. of Canterbury, 14 Ves. 364; Kane v. Cosgrave, I. R. 10 Eq. 211.

the Court.

If, however, there is a gift to foreign trustees for charit- Gift to foreign able purposes in a foreign country and the trustees dis- trustees for claim, the Court has no power to settle a scheme, and the a foreign charity. gift fails. A.-G. v. Sturge, 19 B. 597; New v. Bonaker, 4 Eq. 655.

Cases in

which the discretion

of the trustee is

And in some cases, where an annual sum has been directed to be given to a person for his life to be distributed in charity, the Court has refused to interfere with not inter- the discretion of the trustee by settling a scheme. Bennett v. Ionywood, Amb. 708; Waldo v. Cayley, 16 Ves. 206; Horder v. Earl of Suffolk, 2 M. & K. 59.

fered with.

c. 36.

IV. WHAT MAY NOT BE GIVEN TO CHARITY.

Statute of By the so-called statute of Mortmain, 9 Geo. II. c. 36, it Mortmain, 9 Geo. II.' is enacted, that no hereditaments, corporeal or incorporeal, nor any personal estate to be laid out in the purchase of lands, shall be given for the benefit of any charitable uses whatsoever, except in the manner therein directed; and, in effect, all gifts by will of any lands, tenements, or other hereditaments, or of any estate or interest therein, or of any charge or incumbrance affecting or to affect any lands, tenements, or hereditaments, or of any stock, money, goods, chattels, or other personal estate, or securities for money, to be laid out or disposed of in the purchase of any lands, tenements, or hereditaments, or of any estate or interest. therein, or of any charge or incumbrance affecting or to affect the same, to or in trust for any charitable uses whatsoever, are declared to be null and void.

Legacy duty.

What is

an interest in land

within the statute.

If a charitable legacy is given free of duty, this is in effect a gift of the duty, which cannot therefore be paid out of impure personalty. Wilkinson v. Barber, 14 Eq.

96.

A. The decisions are numerous as to what is an interest in land within the statute of Mortmain.

1. Money to arise from the sale of land directed by the Money to testator, though the land is devoted to partnership purposes, is clearly within it. Page v. Leapingwell, 18 Ves. 463; British Museum v. White, 2 S. & St. 595; Thornber v. Wilson, 4 Dr. 350; Incorporated Church Building

arise from sale of land.

Society v. Coles, 5 D. M. & G. 324; Ashworth v. Munn, 28 W. R. 965; 47 L. J. Ch. 747; 15 Ch. D. 563.

So is the purchase money for land contracted to be sold Lien for purchase by the testator, but in respect of which he has a lien at his money. death, and also a premium payable to the testator in respect of a lease granted at a low rent. Harrison v. Harrison, 1 R. & M. 71; Shepheard v. Beetham, 6 Ch. D. 597.

2. On the question whether money to arise from the sale of land under an instrument other than the testator's will is within the Act, the cases are not entirely satisfactory.

Where land is given by a first testator on trust for sale, a gift of the proceeds by the will of a second testator is within the Act if the time for selling the land has not arrived at the death of the second testator, or if the land has not in fact been sold, and the second testator might have elected to take it as land. Brook v. Badley, 4 Eq. 106, 3 Ch. 672; Lucas v. Jones, 4 Eq. 73; AttorneyGeneral v. Harley, 5 Mad. 321.

arise from

Where land is given by a first testator on trust for sale Money to and division among several persons, a gift of the proceeds sale of by the will of a second testator, which does not take effect land under a prior till after the death of the first, is it seems within the testator's Act, if the property has not in fact been sold before the second testator's death. Marsh v. A.-G., 2 J. & H. 61, is overruled by Brook v. Badley, 3 Ch. 672; sce Ashworth v. Munn, 15 Ch. D. 563.

The case has been held not within the Act, where leaseholds have been given on trust for sale to pay debts, and have been sold by the executors, in course of administration, after the death of the second testator, though the pure personalty was enough to satisfy the debts. Shadbolt v. Thornton, 17 Sim. 49; 13 Jur. 597; but this case is of very doubtful authority. See Lucas v. Jones, supra.

will.

leaseholds.

Crops, 3. Further, within the Act are the proceeds of growing Mortgages crops (a), leaseholds (b), money secured by mortgage of and land (c), or charged upon land (d), including equitable

charges.

of real and

mortgages (e) and mortgages of leaseholds (f). Symonds v. Marine Society, 2 Giff. 325 (a). Johnston v. Swann, 3 Mad, 457; Paice v. Archbishop of Canterbury, 14 Ves. 364; Entwistle v. Davis, 4 Eq. 272 (b). White v. Evans, 4 Ves 21; Corbyn v. French, 4 Ves. 418; Currie v. Pye, 17 Ves. 462; Paice v. Archbishop of Canterbury, 14 Ves. 364 (c). A.-G. v. Harley, 5 Mad. 321; Harrison v. Harrison, 1 R. & M. 71 (d). Alexander v. Brame, 30 B. 153 (e). Chester v. Chester, 12 Eq. 444 (ƒ).

Mortgage 4. Though personalty may happen to be included in a personal mortgage given by will, the bequest will not be apporproperty. tioned, nor will there be an apportionment, if the bequest

Mortgages of rates and tolls.

is of a sum charged upon realty and personalty by a prior testator. Brook v. Badley, L. R. 3 Ch. 672; see In re Hill's Trusts, 16 Ch. D. 173.

But if a sum is secured by a promissory note and a mortgage by deposit, and the property mortgaged is worth only half the debt, the bequest is valid as regards the portion not secured by the mortgage. Smith v. Sopwith, W. N. 1877, 208.

5. So, too, mortgages of rates on occupiers of land leviable by distress (a), of poor rates (b), of turnpike tolls and harbour and dock rates (c), and Metropolitan Board of Works Consolidated Stock (d), are within the Act and cannot be given to charity. Thornton v. Kempson, Kay, 592; Chandler v. Howell, 4 Ch. D. 651 (a). Finch v. Squire, 10 Ves. 41 (b). Knapp v. Williams, 4 Ves. 429, n.; King v. Wonstanley, 8 Pr. 180; Ion v. Ashton, 28 B. 379; Alexander v. Brame, 30 B. 153; Tyrrell v. Whinfield, W. N. 1877, 99 (c). Cluff v. Cluff, 2 Ch. D. 222 (d).

The case of Chandler v. Howell, like some of the other cases above cited, may possibly be open to reconsideration,