parsonages, &c.

tation of churches and chapels. By the 17 Car. 2, c. 3, s. 7, owners or proprietors of any impropriation tithes or portion of Owners of imtithes, in the parishes or chapelries within England or Wales, may augment propriations are empowered to bestow or annex the same to the parsonage or vicarage of the parish church or chapel, where the same should lie or arise, or to settle the same in trust for the benefit of the parsonage or vicarage, or of the curate or curates successively, where the parsonage is impropriate and no vicar endowed, without license in mortmain. And by section 8, where the settled maintenance of such parsonages, vicarages, churches, and chapels as should be united in pursuance of the act, or any other parsonage or vicarage with cure in England or Wales, should not amount to the clear yearly sum of £100, it is declared lawful for the parson, vicar, or incumbent to take, receive, and purchase lands, tenements, rents, tithes, or other hereditaments without license.

Parsons not having £100

per annum may

take and pur

chase lands,

&c.

to continue during the estate for which they were granted and af

terwards.

By the 29 Car. 2, c. 8, it is enacted that every augmentation Augmentations granted, reserved, or agreed to be made payable since the 1st of June, in the 12th year of the king, or thereafter so to be, to any vicar or curate, or reserved by way of increase of rent to the lessors, but intended for the benefit of any vicar or curate, by any archbishop, bishop, dean, &c., or other ecclesiastical corporation, person or persons out of any rectory impropriate, or portion of tithes should be deemed to be, and should for ever thereafter remain, and the vicars and curates were thereby adjudged to be in the actual possession thereof, to be for ever thereafter taken, received, and enjoyed by them, and their successors, as well during the continuance of the term or estate, upon which the augmentations were granted, reserved, or agreed to be made payable, as afterwards, with remedy by dis- Remedy protress or action of debt, disabilities notwithstanding.

vided.

the value of the exceeding half impropriation to be bad.

Sect. 3. The act then declares that no future augmentation Augmentation should exceed one moiety of the clear yearly value of the rectory impropriate, out of which the same should be granted or reserved.

Sect. 4, 5, 6. These sections provide for the registry of all Registry of augaugmentations made.

mentations.

F

Augmentations to be favored

as charitable

uses.

Sect. 7. It is then enacted that if any question should therein construction after arise concerning the validity of such grants or any matter contained in the act, such favorable constructions and such further remedy, if need were, should be made for the benefit of the vicars and curates, as theretofore had or might be made, for other charitable uses upon the statutes for charitable uses.

New leases without continuing augmentation to be void.

Certain leases saved.

Augmentation of livings a charitable purpose.

Enactments for

benefit of Queen

and small li vings.

Sect. 8. The act then goes on to avoid all such new leases as should be made, without expressly continuing the augmentations granted out of the old leases.

Sect. 9, 10. And concludes with special exceptions, as respects two existing leases; one of the parsonage and tithes of Stourton in Nottinghamshire; and the other of the tithe of the parish of St. Evall Cornwall.

Lord Hardwicke, upon one occasion, expressed a doubt whether a gift for augmenting a perpetual curacy was charitable. But he afterwards said he was satisfied as to that, by looking into the 29 Car. 2, c. 8. These augmentations, he observed, are charities to be sure; and at the latter end of the statute just mentioned is a clause which considers them as charities within the intent of the statute of 43 Eliz.; Att. Gen. v. Brereton, 2 Ves. Sen. 426.

Besides the 17 & 29 Car. 2, other acts were passed for very Anne's bounty similar purposes. Thus by the 2 & 3 Anne, c. 11, all first fruits and tenths were granted to Queen Anne's bounty, and certain gifts of lands were authorized to be made to that corporation. By the 5th Anne, c. 24, the 6 Anne, c. 27, and the 1 Geo. 1, st. 2, c. 10, small livings were discharged from such first fruits and tenths. By the last mentioned act also, gifts of lands to Queen Anne's bounty were further authorized, as were likewise to a limited extent exchanges of land belonging to any augmented living or cure, with consent of the govenors of the corporation and others.

Land for workhouses, &c.

We may here observe, that by two statutes, the 13 & 14 Car.

12, c. 2, and the 9 Geo. 1, c. 7, a limited acquisition of land by churchwardens and overseers for the benfit of the poor was provided for and allowed.

The present division of our inquiry is now drawing to a close. There is but one other statute which seems to call for notice in this place. After the dispensing power of the crown had been effectually abrogated by the bill of rights, it was thought that 7 & 8 W. 3, c. dispositions to charity might possibly be impeded, unless authority was given to the crown to grant licenses in mortmain, which should be binding upon all parties.

Therefore, by an act passed for the encouragement of charitable gifts and dispositions, which recited that it would be a great hindrance to learning and other good and charitable works, if persons well inclined might not be permitted to found colleges or schools for encouragement of learning, or to augment the revenues of those already founded, by granting lands, &c. to such colleges or schools, or to grant lands, &c. to other bodies politic then or thereafter to be incorporated, for other good and public uses: it was enacted, that it should be lawful for the crown, as often as it should think fit, to grant to any persons, bodies politic or corporate license to alien in mortmain, and also to purchase and hold in mortmain, in perpetuity or otherwise, any lands, tenements, rents, or hereditaments, of whomsoever the same should be holden; which lands, &c. it was declared should not be subject to forfeiture by reason of such alienation or acquisition.

37.

Crown em

powered to

grant licences in mortmain in

all cases.

BOOK II.

DIVISION OF GIFTS BEING OR SEEMING TO BE CHARITABLE, WITH A VIEW ΤΟ DETERMINE THEIR CHARACTER: PRINCIPLES OF CONSTRUCTION APPLICABLE TO THE FORMER; AND HEREIN OF THE STATUTE OF MORTMAIN, AND THE LAW AFFECTING SUPERSTITIOUS USES.

WE are now led to analize and consider the various kinds of gifts being, or having the semblance of being charitable.

These may be divided into eight classes, viz.-I. Those which in their subject and objects are sufficiently defined; and which, not being excepted from the Mortmain act, do not transgress that statute, or the law of superstitious uses. II. Those which in their subject and objects are also sufficiently indicated; but which either have been specially excepted out of, or from the operation of the statute, or else are beyond the sphere of its influence. III. Those which from some circumstance or accident, cannot be applied or executed in the manner contemplated by the donor; but are carried into effect cy pres, or in the way of approximation, under the direction of the Court of Chancery. IV. Those which from some defect, omission, or vice, cannot be applied or executed by, or under the superintendence of the Court of Chancery; but are appropriated to such charitable purposes as are nominated and selected by and under the king's sign manual. V. Those which are made to persons expressly as trustees; but to which so much of ambiguity and uncertainty, as respects the intended objects or mode

of application are found to attach, as to render the trust too ⚫ indefinite to be executed at all, and the beneficial interest therefore results. VI. Those which are made to persons bearing a particular character, or upon condition subsequent, or with superadded words of a merely precatory nature; and which character, condition, or words, not being allowed to affect the disposition in favor of the donee, he retains the property for his own benefit. VII. Those which are made to such uses, or upon such trusts as are held to be within the statute, and consequently are merely void. VIII. Those which are clothed, or attempted to be clothed with secret or imperfect trusts for charitable, or superstitious purposes; and which, according as there has or has not been any privity or connivance on the part of the donee, are for the most part either discharged from such trusts in his hands, or are adjudged to be equaily within the act as if the trust were duly and expressly declared.

Before taking each of these divisions separately into our consideration, it will be proper to describe in general terms the object, and also to detail the provisions of the statute of Mortmain, with which it is apparent they are all more or less connected. The operation of the act, in particular cases, will be made to appear when the several kinds of charitable gifts come to be examined in their order, though the chief information on this subject will be found under the first and seventh divisions.

intended to

The whole frame and language then of the act evince most Mortmain act clearly that it was not intended to prohibit charitable donations, regulate charibut merely to regulate them. For authority, if authority be ties. wanting, the reader is referred to the cases of Att. Gen. v. Lord Weymouth, Amb. 23; Att. Gen. v. Day, 1 Ves. sen. 222; Att. Gen. v. Meyrick, 2 Ves. sen. 47; Widmore v. Woodroffe, Amb. 636; S. C. 1 B. C. C. 13; Att. Gen. v. Stewart, 2 Mer. 163.

act.

The policy of the act was twofold-general and particular Policy of the general in the benefits to be secured to the public, and particular in the protection to be afforded to the heir. The former was