CH. 2, s. 5. being carried into effect, then the fund shall be in trust for PT. II. T. 8, his executors and administrators, the trust will be sustained, and the Crown will not be entitled (y). But where a testator gave the residue of his personal property, upon trust for the establishment of a charitable receptacle, if the same could be done, for a number of poor people; but if no such institution could be conveniently established, he requested that the property be disposed of in certain charitable donations; such a bequest was held void under the Statute of Mortmain, on the ground that the primary and direct object was the acquisition of a dwelling-house for the charitable purpose; and it was only in case no such institution could be "conveniently" established, and not in case it could not be lawfully established, that the bequest over was to take effect (z). 738. II. Dispositions in favour of Charities void under the Mortmain Act (a): the Act. The Mortmain Act, 9 Geo. 2, c. 36, is intituled, "An Title of Act to restrain the disposition of lands, whereby the same become unalienable." This title agrees with the preamble, but only expresses one of the two intents expressed or intimated in the preamble. The preamble is in these words: "Whereas gifts or alienations of lands, tenements, or here- Preamble. ditaments, in mortmain, are prohibited or restrained by Magna Charta, and divers other wholesome laws, as prejudicial to and against the common utility; nevertheless this public mischief has of late greatly increased by many large and improvident alienations or dispositions made by languishing or dying persons, or by other persons, to uses Brockett, L. R. 8 Ch. Ap. 206. (y) 2 Rop. Leg. by White, 1125. (z) Att.-Gen v. Hodgson, 15 Sim. 146, and 10 Jur. 300. (a) See 1 Jarm. Wills, 2nd ed. 180-3; and see Jauncey v. Att.Gen., 3 Gif. 319, 320. CH. 2, s. 5. Pr. 11. T. 8, called charitable uses, to take place after their deaths, to the disherison of their lawful heirs." Mortmain 739. By section 1, it is enacted, that "no manors, lands, tenements, rents, advowsons, or other hereditaments, corporeal or incorporeal, whatsoever, nor any sum or sums of money, goods, chattels, stocks in the public funds, securities for money, or any other personal estate whatsoever, to be laid out or disposed of in the purchase of any lands, tenements, or hereditaments, shall be given, granted, alienated, limited, released, transferred, assigned or appointed, or any ways conveyed or settled to or upon any person or persons, bodies politic or corporate, or otherwise, for any estate or interest whatsoever, or any ways charged or incumbered, by any person or persons whatsoever, in trust or for the benefit of any charitable uses whatsoever; unless such gifts, conveyance, appointment or settlement of any such lands, tenements, or hereditaments, sum or sums of money, or personal estate (other than stocks in the public funds) be and be made by deed indented, sealed and delivered in the presence of two or more credible witnesses, twelve calendar months at least before the death of such donor or grantor (including the days of the execution and death), and be enrolled in His Majesty's High Court of Chancery, within six calendar months next after the execution thereof, and unless such stocks be transferred in the public books usually kept for the transfer of stocks six calendar months at least before the death of such donor or grantor (including the days of the transfer and death), and unless the same be made to take effect in possession for the charitable use intended, immediately from the making thereof, and be without any power of revocation, reservation, trust, condition, limitation, clause, or agreement whatsoever, for the benefit of the donor or grantor, or of any person or persons claiming under him." 740. It appears, then, that the two descriptions of things CH. 2, s. 5. within this 1st section, are, first, hereditaments corporeal Pr. II. T. 8, and incorporeal; secondly, personal estate to be invested in the purchase of hereditaments. It also appears from this section that neither of these things can be conveyed, charged, or incumbered for the benefit of a charitable use, except subject to these restrictions: First, that (except in the case of stock) the disposition be by indenture sealed and delivered in the presence of two or more witnesses, at least twelve calendar months before the death of the donor or grantor, and enrolled in Chancery within six calendar months after the execution thereof; and that in the case of stock, it be transferred at least six calendar months before the death of the donor or grantor. And secondly, that the deed or transfer be made to take immediate effect in possession for the charitable use, without any arrangement for the benefit of the donor or grantor, or any person claiming under him (b). 741. But we shall presently see that the 3rd section of the Act has the effect of extending the prohibitions of the 1st section; and, on the other hand, that, by recent statutes, other enactments have been made on the subject. 742. Act, 8. 2. By s. 2, it is enacted, that, "Nothing herein before men- Mortmain tioned relating to the sealing and delivering of any deed or deeds twelve calendar months at least before the death of the grantor, or to the transfer of any stock six calendar months before the death of the grantor or person making such transfer, shall extend or be construed to extend to any purchase of any estate or interest in lands, tenements, or hereditaments, or any transfer of any stock, to be made really and bonâ fide for a full and valuable consideration actually paid at or before the making such conveyance or transfer without fraud or collusion." 743. The reason why the 2nd section of the Mortmain Act (b) Wickham v. Marquis of Bath, L. R. 1 Eq. 17. CH. 2, s. 5. PT. II. T. 8, exempts deeds of purchase in favour of charitable uses for a full and valuable consideration from the necessity of being executed a certain time before the death of the grantor, is, that such transactions were not within one of the mischiefs sought to be remedied by that Act, as disclosed in the preamble. Where the grantor obtains an adequate valuable consideration for the alienation of the property to a charitable use, it matters not whether the alienation took place a year or only a day before his death, or whether he was in the full vigour of health, or in a dying or weak state. But, even in the case of a purchaser for valuable consideration, it might be desirable that the deed should be attested by two witnesses, and enrolled. For it would seem only reasonable that the evidences of transfer to charitable uses should be peculiarly complete, on account of the great importance of such transfer to the community. 744. Stat. 9 Geo. 4, c. 85. By the stat. 9 Geo. 4, c. 85, after reciting that the 2nd section of the Mortmain Act "was only intended to prevent such purchases from being avoided, by reason of the death of the grantor within twelve calendar months after the sealing and delivery of the deed or deeds relating thereto; and that it had been generally apprehended that the said last-mentioned provision was intended wholly to exempt such purchases from the operation of the said Act, and in consequence thereof the formalities by the said Act prescribed, in relation to the conveyance of hereditaments to charitable uses, had in divers instances been omitted on purchases for a full and valuable consideration, and by reason of such omission the title to such hereditaments might be considered defective, it is enacted that where any lands, tenements, and hereditaments, or any estate or interest therein, have or has been purchased for a full and valuable consideration, in trust or for the benefit of any charitable uses whatsoever, and such full and valuable CH. 2, s. 5. consideration has been actually paid for the same, every Pr. II. T. 8, deed or other assurance already made for the purpose of conveying or assuring such lands, tenements, or hereditaments, estate or interest as aforesaid, in trust or for the benefit of such charitable uses (if made to take effect in possession, for the charitable use intended, immediately from the making thereof, and without any power of revocation, reservation, trust, condition, limitation, clause, or agreement whatsoever, for the benefit of the grantor, or of any person or persons claiming under him), shall be as good and valid, and of the same effect, both for establishing derivative titles, and in all other respects, as if the several formalities by the said Act prescribed had been duly observed and performed (c). Provided always, that nothing in this Act contained shall extend to give effect to any deed or other assurance heretofore made, so far as the same has been already avoided by suit at law or in equity, or by any other legal or equitable means whatsoever, or to affect or prejudice any suit at law or in equity actually commenced for avoiding any such deed or other assurance, or for defeating the charitable uses in trust or for the benefit of which such deed or other assurance may have been made (d). Provided also, and be it further enacted, that nothing herein contained shall be construed to dispense with any of the said several formalities prescribed by the said recited Act, in relation to any deed or other assurance which shall be made after the passing of this present Act" (e). 745. This is a very remarkable instance of the defective manner in which statutes are too often framed. The second section of the Mortmain Act had provided that nothing contained in the first section relating to the sealing and delivery of any deed twelve calendar months before |