but it is probably not correct to say that it is overruled by Attree v. Hawe, 9 Ch. D. 337. charged on 6. Similarly, within the statute are arrears of interest Arrears of rent, judgdue on a mortgage, and rent accrued due since the testa- ment tor's death, on land contracted to be sold, and a judgment land. debt, if it is a charge upon realty. Alexander v. Brame, 30 B. 153; Edwards v. Hall, 11 Ha. 1; Collinson v. Pater, 2 R. & M. 344. covenant void as 7. A voluntary covenant to leave money by will to a Voluntary charity is in substance a legacy, and is void if the testator to leave leaves only real assets; if he leaves mixed assets, there money is will be an abatement in the proportion of the pure to the regards impure personalty. Jeffries v. Alexander, 7 D. M. & G. 525; 8 H. L. 594; Fox v. Lowndes, 19 Eq. 453. real assets. Shares in are not 8. Shares in companies, whether incorporated or not, are public not within the statute, provided land is held by them only companies for the common purposes of the undertaking, and this is within the the case whether the shares are declared to be personal statute, estate or not, provided the right of the shareholder is merely to call for a share of the profits, and not for a specific part of the land itself. Walker v. Milne, 11 B. 507; Myers v. Perigal, 11 C. B. 90; 2 D. M. & G. 599; Edwards v. Hall, 11 Ha. 1; 6 D. M. & G. 74; Hayter v. Tucker, 4 K. & J. 243; Entwistle v. Davis, 4 Eq. 272. Morris v. Glyn, 28 B. 218, cannot be considered law. It makes no difference that the company whose shares are in question has placed itself in the position of landlord, by letting its land to another company. Linley v. Taylor, 1 Giff. 67; 2 D. F. & J. 84. share entitled to But if the land is held in trust for each individual unless each shareholder in proportion to his shares, so that each share- holder is holder has a direct and definite interest in the land, the shares are within the statute. Baxter v. Brown, 7 M. & proportion Gr. 198. See Watson v. Spratley, 10 Ex. 222. a definite of land. 9. Debenture stock, debentures and mortgage deben- Debenture stock, mortgage debentures. Bonds charged on police rates. Arrears of rent due at Tenants' fixtures. tures of railway companies charging the undertaking and tolls of the company are not within the Act. Attree v. Hawe, 9 Ch. D. 337; Holdsworth v. Davenport, 3 Ch. D. 185; In re Mitchell's Estate; Mitchell v. Moberly, 6 Ch. D. 655, overruling Ashton v. Lord Langdale, 4 De G. & S. 402. 10. Bonds charged by justices on the police rates since 7 & 8 Vict. c. 33, under which Act justices no longer have power themselves to levy a rate, but issue a precept to the guardians of the unions for payment of the amount required, are not within the Act. In re Harris; Jacson v. Governors of Queen Anne's Bounty, 15 Ch. D. 561. 11. Arrears of rent due at the testator's death (a), apthe death. portioned rent (b), a royalty on minerals (c), and tenants' fixtures (d), are not within the Act. Edwards v. Hall, 11 Ha. 1; 6 D. M. & G. 74 (a). Thomas v. Stowell, 18 Eq. 198 (b). Brook v. Bradley, 4 Eq. 106 (c). Johnson v. Swann, 3 Mad. 457 (d). Money to be invested in land. Money to be invested on real or mortgage security. B. As to what is a gift of personalty to be laid out in the purchase of land or any interest therein within the Mortmain Act: 1. Money directed to be invested on real securities, or even merely on mortgage security generally, is within the Act. Baker v. Sutton, 1 Kee. 224. The same is the case if the ultimate object of the bequest is investment in land, though other investments may be authorised in the meantime. Mann v. Burlingham, 1 Kee. 235; A.-G. v. Hodgson, 15 Sim. 146. But the gift is valid if an option is left to trustees; for instance, if money is directed to be invested in real or other securities. A.-G. v. Goddard, T. & R. 348; Graham v. Paternoster, 31 B. 30; Beaumont's Trusts, 32 B. 191. Bequest to 2. A bequest of money to pay off a debt secured by pay off the mortgage mortgage, whether legal or equitable, of land belonging to charity. a charity is void. Corbyn v. French, 4 Ves. 418; Water debt of a house v. Holmes, 2 Sim. 162; In re Lynall's Trusts, 12 Ch. D. 211. But this is not the case where the debt is no charge upon the land. Bunting v. Marriott, 19 B. 163. 3. A gift to improve, repair or enlarge an existing Gift to charitable institution is valid. Edwards v. Hall, 11 H. 1; enlarge, or improve, 6 D. M. & G. 74; Hawkins' Trust, 33 B. 570. repair. build a institution 4. A gift to build a charitable institution is held prima Gift to facie to imply a direction to purchase land for the purpose, charitable and is void under 9 Geo. II. c. 36. Chapman v. Brown, is void. 6 Ves. 404; A.-G. v. Parsons, 8 Ves. 186; Pritchard v. Arbouin, 3 Russ. 456; A.-G. v. Davies, 9 Ves. 535; Martin v. Wellsted, 2 W. R. 657; Longstaff v. Rennison, 1 Dr. 28; Watmough's Trusts, 8 Eq. 272; Hawkins v. Allen, 10 Eq. 246; Pratt v. Harvey, 12 Eq. 544. A gift for the erection of a charitable institution does not become valid because it is made to a corporation which has power to hold land in mortmain, and, in fact, possesses land available for the purposes of the bequest. In re Cox; Cox v. Davie, 7 Ch. D. 204. to build or apply the money in some ner. 5. If, however, an option is given to the trustees either Discretion to build a charitable institution or bestow the money in some other manner which is legal, the bequest is good as regards the legal purpose. Sorresby v. Hollins, 9 Mad. legal man221; A.-G. v. Whitchurch, 3 Ves. 141; Incorporated Society v. Barlow, 3 D. M. & G. 120; 17 Jur. 217; Mayor of Faversham v. Ryder, 18 B. 318; 5 D. M. & G. 350; Edwards v. Hall, 11 Ha. 1; 6 D. M. & G. 74; Dent v. Allcroft, 30 B. 335; University of London v. Yarrow, 1 De G. & J. 72. And, on similar principles, a bequest of pure and impure personalty to such charities as trustees may select is good, since the power can be exercised in favour of charities exempt from the law of mortmain. Lewis v. Allenby, 10 Eq. 668. Gift to "establish" a charity. Gift to endow a 6. A direction to "establish" would, it seems, prima facie imply building, and come under the same rule as a bequest for building. A.-G. v. Hodgson, 15 Sim. 146; Longstaff v. Rennison, 1 Dr. 28; Re Clancy, 16 B. 295; A.-G. v. Hall, 9 H. 647; Dunn v. Bownas, 1 K. & J. 591; Tatham v. Drummond, 4 D. J. & S. 484. But, of course, the word may be used in such a context as to exclude building. A.-G. v. Williams, 2 Cox, 387; Hill v. Jones, 2 W. R. 657. And the fact, that an annual sum only is given to establish a school, would apparently go to show that the testator did not contemplate building. Hartshorne v. Nicholson, 26 B. 58. The same is the case with an annual sum given to "provide" a school, which may only mean that a school is to be hired. Johnston v. Swann, 3 Mad. 457; Crafton v. Frith, 20 L. J. Ch. 198; 15 Jur. 737. A gift to "support or found" a school is valid. In re Hedgman; Morley v. Croxon, 8 Ch. D. 156, A bequest to "found" a chapel implies building. Hopkins v. Phillips, 3 Giff. 182. On the other hand, a gift to “endow" would not, primâ charity. facie, authorise building, though the word may be so used as to involve it. Salusbury v. Denton, 3 K. & J. 529; Edwards v. Hall, 11 Ha. 1; Sinnett v. Herbert, 7 Ch. 233; Kirkbank v. Hudson, 7 Pr. 212. Evidence of inten tion that the testa tor did not 7. But, even though the object of the gift may primâ facie imply the purchase of land, it may appear that the testator had no such intention. He may have contemplated the building as to be erected either on land already purchase in mortmain, or on land to be provided after his death. from some other source. contem plate the of land. (a.) Thus, if the testator contemplated land already in mortmain, a gift to build a charitable institution is good. This will be the case: mortmain (i) If land already in mortmain is expressly referred to Land in in the will. Glubb v. A.-G., Amb. 373; Brodie v. referred to expressly, Duke of Chandos, 1 B. C. C. 444 n. If it is uncertain, whether the land upon which the cation, (ii.) If land already in mortmain is impliedly referred by implito, as by a direction to build in such manner as is consistent with law. Dent v. Allcroft, 30 B. 335; Sewell v. Crewe Read, L. R. 3 Eq. 60. evidence. (iii.) External evidence may be adduced in order to show by external that the testator must have contemplated land in mortmain, though as to the exact amount of evidence necessary for this purpose the cases are not quite consistent. A.-G. v. Hyde, Amb. 751; Giblett v. Hobson, 3 M. & K. 517; Booth v. Carter, L. R. 3 Eq. 757; Cresswell v. Cresswell, 6 Eq. 69. (b.) When the testator intends the buildings to be erected on land to be supplied from some other source after his death : ment to (i.) It is clear, that a direct inducement offered to any Induceperson to give land for the purpose of the building, give land. as, for instance, a bequest to A. to build if he will give the land, is bad. A.-G. v. Davies, 9 Ves. 535. to beg (ii.) If the trustees are directed to beg the land from Direction some person, but their own implied power to pur- land." chase remains, the bequest is bad. Mather v. Scott, 2 Kee. 172. (iii.) Where the bequest is to build, with an express Direction not to buy direction, that land is not to be bought for the pur- land. pose, the bequest is valid, whether made conditional upon land being provided, or without any condition. Henshaw v. Atkinson, 3 Mad. 306; A.-G. v. Williams, 2 Cox, 387; Cawood v. Thompson, 1 Sm. & G. |