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and if it is not carried out it won't be my fault": he said, "I believe the only way effectually to carry out your wishes will be at once to convey the property and enrol it in the Court of Chancery twelve months before your decease" she objected to that on account of the expense, and of the possibility of its being thrown away in case of her death within twelve months. She had told him that she had sold land to raise 2500l. to build a chapel at Tilney St. Lawrence.

On cross-examination, he said, I was well aware of the law of Mortmain, but I knew that a charge might be made on personalty for charitable legacies. I told Miss Mann that it would rest with my conscience to discharge the legacies to the hospital and the chapel. I told her the clause would be inoperative; that I could not be compelled to pay it, and it must remain entirely within my conscience. She expressed her strong desire these legacies might be paid. I should have been prepared to pay them on the 23rd June, 1857, had it not been for a bill in Chancery filed for the purpose of setting aside the will. She did not say she was anxious her name should appear as a permanent donor to the church,-the clause was inserted that the world might be aware of her intention.

When

I suggested the deed of gift, she objected on account of the expense, and said if she died within twelve months the expense would be thrown away. I don't know whether I told her it would only cost 10% or 121. When the last codicil was made, it was from her drawing my attention to the date, and the fact that a part of the land had been bought since the date of the will. She also wished the servants' legacies to be paid within three months of her death. I had no understanding with her that I should the legacies to the church and hospital out of the land.

pay

I was examined on a former trial; I then said, that Miss Mann said she had that confidence in me she was sure I should do it, and at all events the world would know what her intention was. I did not say to her that I should be under no legal compulsion.

None of the legacies bequeathed by the said Mary Mann were paid within the periods prescribed by the will and codicils respectively, and her personal estate was insufficient to pay and discharge any of them.

A previous ejectment between the parties resulted in judgment for the defendant, and on that occasion none of the points now urged were taken.

A verdict was found for the defendant, leave being reserved to move to enter the verdict for the plaintiff.

In Easter Term,

Parry Serjt. obtained a rule accordingly, on the following grounds. First, that the plaintiff was entitled to recover for non-performance of the condition for payment of the legacies. Second, that the devise to the defendant was made for the purpose of defeating the statute of Mortmain, 9 G. 2. c. 36., and was therefore void. Third, that the defendant ought to have informed the testatrix that the charitable legacies ought to be expressly charged upon the personalty, and that she could have given land to Tilney Church to the amount of 50 acres or 5007. under stat. 43 G. 3. c. 108., and consequently that the will having been made through his negligence and misrepresentation, the devise in it in his favour could not take effect.

In Trinity Vacation, June 14th,

O'Malley, Keane, C. Hall and Douglas Brown shewed

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cause. As to the first ground of the rule, construing the will according to the intention of the testatrix, the direction for payment of the legacies operates as a charge on the property, and not as a condition defeating the estate devised; Spalding v. Spalding (a), Bromfield v. Crowder (b), per Mansfield C. J. The expression of confidence that the devisee will comply with the wish of the testatrix shews that this is a trust and not a condition, and the direction to pay the legacies within twelve months after the death of the testatrix renders it necessary that the devisee should have the legal estate. In Creckmere v. Patterson (c) a devise to A. that she should pay to B. a certain sum of money at a certain day was construed to be a condition, because otherwise B. would have been remediless. 5 Vin. Abr. 59, Conditions I. pl. 2; 2 Bac. Abr. Conditions B., 7th ed., p. 112; 3 Com. Dig. by Hammond, p. 90, Condition A. 4. are to the same effect; but it is said by Lord St. Leonards, 1 Sugd. on Powers, 122, 7th ed.; 106, pl. 15, 8th ed., "What by the old law was deemed a devise upon condition, would now, perhaps, in almost every case, be construed a devise in fee upon trust, and by this construction, instead of the heir taking advantage of the condition broken, the cestuique trust can compel an observance of the trust by a suit in equity." In Cooke v. The Stationers' Company (d) the testator gave to his wife the residue of his estate on condition that all the legacies were paid some of them being void, and Sir John Leach M. R. held that they were to be considered as a charge upon the gift to the wife, and therefore she, and not the heir, was entitled to the

(a) Cro. Car. 185.

(b) 1 N. R. 313. 325. (c) 1 Leon. 174; S. C. Crickmer's Case, Co. Litt. 236 b.

(d) 3 Myl. & K. 262. 266.

benefit of the failure of those legacies. In Hubbert v. Spencer (a)" C. devised a manor to his wife for 30 years, for and to the intent and purpose, that his wife shall pay 301. yearly during the term to A. and others; and further devises, that his wife should be bound to A. and the others to perform the will. This was held to be no condition; for to what purpose should his wife be bound if this was a condition? But judgment was not given because the parties agreed." [They also cited Poor v. Mial (b).] A charge of real estates with the payment of debts creates a trust to mortgage or sell for the payment of them; Ball v. Harris (c), Sugden's Treatise of the Law of Vendors and Purchasers, 543, pl. 9, 13th ed., and cases collected in Lewin on Trusts, 317, 4th ed. and a charge with the payment of legacies must have the same effect.

:

the testatrix did not intend to die

the property should go to the heir.

It is clear that intestate or that

Further, if this

is a condition at all, it is a condition subsequent; Edwards v. Hammond (d), Doe d. Hunt v. Moore (e); and as several of the legacies are contrary to law the whole condition is voi An estate already vested at the death of the testatrix cannot be defeated by a void. condition. In Egerton v. Earl Brownlow (f), Crompton J. said, p. 67, "The true doctrine seems to me to be, that a proviso which is invalid cannot be operative, either to create or to destroy. If the estate can only arise by that proviso being complied with, it fails in its creation; if the estate has once arisen, such proviso cannot destroy,

(a) 5 Vin. Abr. 59, Conditions, I., pl. 5. S. C. Hubberd v. Spencer, Benl. 287.

(b) Madd. & Geld. 32. (d) 3 Lev. 132.

(c) 8 Sim. 485; 4 My. & Cr. 264.

(e) 14 East, 601.

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(f) 4 H. L. Ca. 1.

R

B. & S.

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and the estate remains unaffected." And Alderson B. said, p. 101, "My opinion very clearly is, that the validity of each [proviso] is to be considered separately, and that those which are valid will have effect, even though the others should be deemed invalid. The true principle in all these questions is, as is laid down in our books, that where a testator involves in one and the same set of words several contingencies, some legal andothers illegal, all are void,—if any one is so; because you cannot say whether he meant more than one contingency, nor say whether that was the legal or illegal contingency which he intended; but where he expresses separately and distinctly each contingency, it is clear that he intends not one only, but all of them, and then the Court rejects the illegal and carries the legal wishes into effect." The estate devised to the defendant is not avoided by reason of some of the legacies being contrary to the Statute of Mortmain; Doe d. Chidgey v. Harris (a). The devisee must take the legal estate in order to enable him to pay such of the legacies as are not contrary to the Mortmain Act, the trust as to those legacies being good; Willet v. Sandford (b), Young v. Grove (c); and, if so, the estate is not divested by a condition subsequent, which is void; Ridgway v. Woodhouse (d). Also, there was no proof that the personal estate was not sufficient to pay the legacies, or if there was, there was no proof of a demand of payment of them, which is necessary to create a forfeiture; Doe d. Biass v. Horsley (e), per Lord Denman, citing Peirson v. Sorrel (f).

As to the second and third grounds of the rule, there

(a) 16 M. & W. 517. 518.

(c) 4 C. B. 668.

(e) 1 A. & E. 766. 772,

(b) 1 Ves. sen. 186.

(d) 7 Beav. 437.

(f) 2 Show. 185.