Settled Land Act,

1882.

separate use absolutely, and this is followed by a clause restraining her from anticipation; is the restraint on anticipation effectual, or can she claim that the fund should be paid over to her? This question gave rise to a good deal of conflict which may now be considered as settled.

The principle upon which the Court proceeds is, what was the intention of the testator, did he intend that the legatees should have the capital paid over to them, or did he intend that the trustees should retain the fund in their hands with a restraint against the married women anticipating their shares? (1)

Sect. 61 of that extremely important statute, the Settled Land Act, 1882, contains a provision that a married woman, if entitled for her separate use, is to have the powers of a tenant for life under the Act without her husband; but if not entitled for her separate use, then along with her husband, and that the provisions of the Act are to apply to her alone, or to her and her husband, as the case may be. It is also provided by the same section that a restraint on anticipation in the settlement is not to prevent the exercise by a married woman of any power under the Act.

In a case where a testator bequeathed a share of his residuary personal estate in trust for his son for life, and after his decease in trust for any wife of the son's for life, it was held that a woman from whom the son had been divorced previous to the testator's death was not entitled to the income (2).

The law as to a widow's rights when her husband dies intestate is considered hereafter (p. 341, et seq.).

As questions concerning the property of married women are of extreme importance and frequent occurrence, the following list of statutes specially referring to that subject may be of service :

3 & 4 Will. 4, c. 74 (Fines and Recoveries Act), sects. 77 et seq.; and see Re Docura, 29 Ch. D. 693;

3 & 4 Will. 4, c. 105 (Dower Act);

18 & 19 Vict. c. 43 (Infants' Settlement Act (post, p. 612)); 20 & 21 Vict. c. 57 (Malins' Act, as to reversionary interests);

() Re Bown, 27 Ch. D. 411, and see Re Tippett's and Newbould's Contract, 37 Ch. D. 444, and cases there referred to.

(2) Re Morrieson, 40 Ch. D. 30, observing on Bullmore v. Wynter, 22 Ch. D. 619.

CHAP. XVIII.]

MARRIED WOMEN'S PROPERTY.

229

20 & 21 Vict. c. 85 (Divorce Act (amended by 21 & 22 Vict. c. 100) enabling the Court to grant protecting orders);

33 & 34 Vict. c. 93, and 37 & 38 Vict. c. 50 (Married Women's Property Acts, 1870 and 1874). Both repealed (but with a saving clause) by sect. 22 of the Married Women's Property Act of 1882.

37 & 38 Vict. c. 78, sect. 6 (Vendor and Purchaser Act); 44 & 45 Vict. c. 41 (The Conveyancing Act), sects. 39 and 40;

45 & 46 Vict. c. 38 (Settled Land Act, 1882);

45 & 46 Vict. c. 75 (The Married Women's Property Act,
1882);

46 & 47 Vict. c. 52 (Bankruptcy Act, 1883), sects. 29 and
47, as to settlements.

46 & 47 Vict. c. 61 (Agricultural Holdings Act, 1883),
sect. 26;

49 & 50 Vict. c. 52 (Married Women (Maintenance in case
of Desertion) Act, 1886), enabling women who are
deserted to summon their husbands for maintenance:
Pape v. Pape (20 Q. B. D. 76);

53 & 54 Vict. c. 29 (The Intestates' Estate Act, 1890), post,
p. 341, et seq.

1

Mortmain

and Chari

table Uses Act, 1888.

CHAPTER XIX.

CHARITIES AND MORTMAIN,

In a former portion of this work (ante, p. 49), some allusion has been made to the subject of charities, and it is now proposed to devote a short chapter to the consideration of some of the leading principles of the law connected with that difficult and important subject, so far as it is concerned with property, and also of the law as to mortmain which is usually associated with the law of charities, and has been dealt with along with it by the legislature in the important statute to which we shall now refer.

The subject of gifts to charities and the law as to mortmain is now to a great extent controlled by a Consolidating and Amending Act, which was passed in the year 1888, under the title of the Mortmain and Charitable Uses Act, 1888 (51 & 52 Vict. c. 42).

As this statute repeals, though with a large measure of substantial re-enactment, a very considerable portion of the previous legislation upon the subject of charities and mortmain, and practically forms the existing code of statute law on these subjects, it will be desirable to consider its provisions in some detail.

This Act is divided into four parts. The first part deals with assurances in mortmain. Alienation in mortmain, in mortuá manu, is defined by Blackstone to be an “alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal (1). The origin of the term "mortmain" is stated by Lord Coke to be that the lands were said to come to hands which were dead as far as the Lord was concerned, i.e., yielded no service inasmuch as the lords lost their escheats, wardships, &c. (2). The present statute enacts that where land is assured to a corporation in mortmain otherwise

(1) 2 Bl. Com. 268.

(2) Part of the present Act reproduces the old statute De Viris Religiosis [repealed in the schedule]. The power to grant licences in mortmain, preserved by the present Act

(s. 2), was first made the subject of enactment by 7 & 8 Wm. 3, c. 37. See for the history of this, Tudor's Charitable Trusts, 3rd ed. by L. S. Bristowe and W. I. Cook.

f

L

CHAP. XIX.]

CHARITIES AND MORTMAIN.

231

than under the authority of a statute for the time being in
force, or of a licence from the Queen (power to grant such
licence being by s. 2 given to her Majesty), the land so assured
may be forfeited from the date of such assurance. If the land
be held directly from the Crown it is forfeited to the Crown;
if from one or more mesne lords, to such mesne lord or lords,
provided entry under the forfeiture is made within certain
periods. If there be no such entry the forfeiture is to the
Crown. No entry for forfeiture under this part of the Act is
to merge, or extinguish, or otherwise affect any rent or service
which may be due in respect of any land to her Majesty or any
other lord thereof (s. 3).

The second part of the Act treats of assurances to charitable
uses, and re-enacts with slight modification the Act 9 Geo. 2,
c. 36, commonly, but inaccurately, referred to as the Statute of
Mortmain. The law as to charities is to a very large extent a
creation of statute. Charities are largely controlled by statute:
(1) in their very definition; (2) with regard to dispositions of
property for their benefit; (3) with regard to their regulation
and control.

With regard to the meaning of "charity," Sir William Grant What is in an oft-quoted judgment, Morice v. Bishop of Durham (1), said: charity? "That word in its widest sense denotes all the good affections men ought to bear towards each other; in its most restricted and common sense, relief of the poor. In neither of these senses is it employed in this Court. Here its signification is chiefly derived from the Statute of Elizabeth. Those purposes are charitable which the statute enumerates, or which by analogies are deemed within its spirit and intendment; and to some such purpose every bequest to charity generally shall be applied." The statute here referred to is 43 Eliz. c. 4.

The charitable objects enumerated in the Statute of Elizabeth, the archaic language of which is specially preserved in the present Act, are as follows: "Relief of aged, impotent, and poor people, maintenance of sick and maimed soldiers and mariners, schools of learning, free schools and scholars in universities, repair of bridges, ports, havens, causeways, churches, sea-banks, and highways, education and preferment of orphans, relief, stock or maintenance for houses of correction, marriages of poor maids, supportation, aid and help of young tradesmen, handicraftsmen, and persons decayed, relief or redemption of prisoners or cap

(') 9 Ves. at p. 405.

What are charities?

Trusts for tombs.

tives; aid or ease of any poor inhabitants concerning payment of fifteens, setting out of soldiers, and other taxes." (1)

What are charities within the intendment of the Statute of Elizabeth? Here we embark upon a wide sea of decisions which have established that not only are trusts for the benefit of the poor and relief of the sick, aged and infirm, charitable, but also trusts for such general purposes as the advancement of education or religion, the general benefit of the inhabitants of a place, or even of a limited class of persons, provided the individuals are not ascertained. Thus it has been held that gifts for the erection of waterworks for the use of the inhabitants of a town; to be applied for the good of a place; for charities and other public purposes in a parish; for the general improvement of a town; for the establishment of a life-boat; or of a botanical garden; to the trustees and for the benefit of the British Museum; to the Royal, the Geographical, and the Humane Societies are charitable (2).

On the other hand, bequests for the purposes of general benevolence and liberality, which need not necessarily include any charitable object, are not charitable.

An immediate gift to the poor relations or kindred of the testator, or of any one else, whether made directly or entrusted to the discretion of the executors, or any other person or persons, is a private gift and not a charity (3).

66

A bequest for the support of a tomb inside a church is charitable, while a bequest to support one outside is not (4). In a case which came before the Court in 1889 in which it was also decided that a trust for the maintenance of specified horses and hounds so long as they should live, &c., was not a charity, the law as to trusts for tombs was summed up as follows: There is not the least doubt that a man may if he pleases give a legacy to trustees upon trust to apply it in erecting a monument to himself, either in a church or in a churchyard, or even in unconsecrated ground, and I am not aware that such a trust is in any way invalid, although it is difficult to say who would be the cestuis que trust of the monument. In the same way I know of nothing to prevent a gift of a sum of money to trustees, upon trust, to apply it for the repair of such a monument. opinion such a trust would be good, although the testator must

(1) This enumeration of charitable objects is preserved by sect. 13 of 51 & 52 Vict. c. 42.

(2) Jarman on Wills, 4th ed. 208, and Tudor's Charitable Trusts, 3rd ed. chapter i., passim.

In my

(3) Tyssen's Charitable Trusts,151. (4) See the numerous cases on this subject collected in Tudor's Charitable Trusts, 3rd ed. p. 7; Re Vaughan, 33 Ch. D. 187.