SECTION III. The gift of the residue therefore, though made to a person fully competent to take or to be employed in a manner perfectly legal, is vitiated by its dependence upon the preceding bequest. It requires the actual execution of the prior purpose in order to ascertain what such gift is to consist of, and as this cannot be the two bequests must, it has been held, fail together; Chapman v. Brown, 6 Ves. 404; Att. Gen. v. Davies, 9 Ves. 535; Limbrey v. Gurr, 6 Madd. 151; Att. Gen. v. Hinxman, 2 Jac. & W. 270. CHAPTER VIII. GIFTS WHICH ARE CLOTHED, OR ATTEMPTED TO BE CLOTHED SECTION I.-Where the use is a charitable one. tion. It must be obvious from what has been stated in the early part of Chapter IV., as well as from a previous notice of the same subject (p. 213,) that the Court of Chancery would assume the administration of all charities which should happen to be effectually created in the manner above indicated, except where the nature of the use was such as to give the right of nomination more directly to the crown. This it is almost needless to say results from the circumstance, that there would necessarily be persons filling the situation of trustees, and consequently it must belong to the court to execute the trust, whereever the same is not rendered, by reason of its illegal and stitious character, incapable of being carried into effect. super The administration of a secret charita ble trust where belongs to the well created court. SECTION 1. And that of a superstitious use to the crown. But should the use be superstitious, then, on the supposition of its not being that kind of use, or, though otherwise, of its not relating to that species of property, which could, under the 23 Hen. 8, c. 10, give back any interest to the donor or his representatives, the king would of course be entitled to direct the application of the estate or fund to some other purpose. In considering the cases which fall within the first section, we shall have merely to look at the claims of the heir-at-law on the one hand, and of the disponees on the other; and much that will there be said will be equally referrible to the subject of superstitious, as to that of charitable uses. When we come to enter upon the former however, we shall find it complicated with an inquiry into the prerogative of the crown, for which reason it has been deemed advisable to discuss those cases, which involve that particular topic, separately from the rest. General policy of the statute of frauds. SECTION I. Where the use is a charitable one. It has been well said by Lord Northington, that the Statute of Frauds struck at imposture: the Statute of Mortmain at weakness and superstition; 1 Cox, 20; 1 Eden. 514. But Not to be used the former in aiming at imposture was made to prevent, not to protect fraud: and therefore when parties have sought to avail themselves of it for the latter purpose, equity has in a great number of cases interposed its jurisdiction, and proceeded, not upon the letter, but the spirit of the act; see Att. Gen. v. Day, 1 Ves. sen. 221. as a cover to fraud. But unless the fraud be that of both parties equity cannot interfere. To constitute however such a fraud as a Court of Equity will deal with, both parties must in general have combined for the purpose in other words the fraud must be that of both, as well that of the disponee as that of the disponor; for, if other wise, the legal disposition will usually prevail. When therefore a devise is good on the face of it; but the testator has, without the devisee's knowledge, subsequently endeavoured to ingraft thereupon a trust for charitable purposes, the devisee would have a right to say-" Non hæc in fœdera veni: the devise to me is absolute: I was no party to the attempted evasion of the law: and the estate being vested in me without artifice on my part, I will retain it for my own benefit." This doctrine was maintained by Lord Hardwicke in the case of Adlington v. Cann, 3 Atk. 141, and is now, at least as a general rule, received law; see 6 Ves. 67, and 9 Ves. 519. But, with some limitation of this sort, it has become a fundamental principle of equity that the statute shall not be used as a cover to fraud. SECTION 1. Fraud not allowed to pre vail even as between indi viduals. tent. This principle is made to apply even in the case of individuals, where the only fraud capable of being attempted is that of a party withholding property, which he had promised to deliver over to another. As respects private persons however it is a disputed point, whether any promise ought to take a case out of the statute, unless it amounts either to the very inducement to the disposition itself or to an actual contract, so much so that the To what extestator would have withheld or revoked the gift, but for such promise having been made. The only way, in which this is thought to be proved, is where a testator, after having expressed an intention of making a different disposition originally or of altering that already made, has been turned from his purpose by the person who enters into the engagement. The facts of most of the earlier cases only allowed of the decisions being carried thus far. See as to personal property, Thynn v. Thynn, 1 Vern. 296; Drakeford v. Wilks, 3 Atk. 539; Reech v. Kennigate, Amb. 67; S. C. nom. Reech v. Kennegal, 1 Ves. sen. 123; Chamberlain v. Agar, 2 Ves. & B. 259; and as to copyholds, Devenish v. Baines, Prec. Cha. 3. Whether real estate is on the same footing as With regard to freehold estates indeed, it may be thought that the principle, even in this its restricted shape, is inapplicable; because in dealing with that description of property, it personal in this is well known that the Statute of Frauds requires all declara respect. SECTION I. Authorities for its being so considered. Cases leaning the other way. tions of trust to be in writing, whilst there is no such regulation in connection with personalty. Unless, therefore, the word "agreement" in the fourth section can be brought to bear upon the subject, the statute can have no direct influence upon declarations of trust, which are confined to the latter. Upon this point the authorities are not agreed, there being two cases in which real estate has been assimilated to personal, and two which rather favor an opposite construction. Of the former, the earliest to be met with is of a peculiarly marked character. The question respected some legacies which the devisee had induced the testator not to charge upon his lands; but the bill it seems was so framed as not to admit of the court getting at the realty. It was however decreed by Lord Nottingham, that the defendant should pay the legacies; and, to the end that the testator's real estate might stand charged with payment thereof, the plaintiff was to be at liberty to amend his bill, or exhibit a new bill, as advised; Chamberlaine v. Chamberlaine, Freem. Ch. R. 34. Again, where certain creditors and legatees of Lord Waltham filed a bill, charging that he had intended to re-publish his will, and had been prevented by the fraud of his heiress-at-law or of her husband, Lord Thurlow compelled an answer, not only as to the charges of fraud, but also as to the fact of the testator having designed a re-publication; Dixon v. Olmius, 1 Cox, 414. (a) The two latter cases are as follows:-A testator, in consequence of his brother's importunities, agreed to revoke a former will by which he had given several legacies, and among the rest one to the plaintiff. In his directions concerning the new will he desired an annuity of £40 per annum to be put down for the plaintiff, but the testator's brother, the defendant, being present urged him not to have it inserted in the will, promising faithfully that it should be paid, upon which assurance the (a) To these cases there ought perhaps to be added another, th of Blackett v. Blackett, cited 2 Atk. 448, 9. But the author has searched in vain for the case in the index to the Register's Book. |