not also payd to the charitable use that is breach of trust which the Commissioners may reform if no other use of imployment of the revenue be expressed in the Donors Deed Fifthly resolved if Land be given to a Corporation or other particular persons to perform a charitable use and the Donor appoint them Visitors also of the use according to his intent if the said Visitors do break the trust either in detaining part of the revenue misimploying or any other ways defrauding the charitable use this may be restored by Decree of the Commissioners notwithstanding the Statute of 43 Eliz. which disables Commissioners to meddle with Lands given to charitable uses where speciall Visitors are appointed for the intent of the Statute is to disable Commissioners to meddle with such a case where the Land is given to persons in trust to perform a charitable use and the Donor appoint speciall Visitors to see these trustees to perform the use according to his intent if the Trustees defraud the trust the Commissioners cannot meddle but the Visitors are to perform it but where the Visitors are Trustees also there the Commissioners may by their Decree reform the abuse of the charitable use Hynshaw and Pydwers the Mayor of the Corporation of Morpeth in Northumberland 5. Car. KIng Edw. 6. gives Land to the Mayor and Commonalty of Morpeth of the value of 20 l per ann. to maintain a School-master there and appoints them Visitors of the School-master and Schollars that they behave themselves according to his Orders this Land increaseth to 100 l by the year and the Corporation did onely bestow on the School-master the 20 l per ann. accordding to the value at the time of the first Gift A commission is granted to reform this breach of trust and the Corporation upon summons refused to appear before the Commissioners for that they are appointed Visitors and the Proviso of the Statute doth exempt in such cases the power of the Commissioners the Commissioners certifie this to the Lord Keeper and that the Visitors were the persons trusted and did break the trust and Serjeant Thomas Crew moving the Lord Keeper upon this Certificate the 22 of May 5 Car. the Lord Keeper declared his opinion to be that the Commissioners might proceed in the execution of their Commission for the Visitors being Trustees and Parties breaking the Trusts are not within the intent of the Proviso and if it should be otherwise construed this breach of Trust would escape unpunished unlesse in Chancery or in Parliament which were a tedious and chargeable Suit for poor persons And the Lord Keeper said That the not bestowing of the increased value of the Land given was a breach of trust in the Corporation if no other use be expressed in the Letters Patents Also it was then said If Land be given to maintain a charitable use for relief of poor and also that the School-master or poor shall pray for the Donors soul that the charitable use shall be said the principall intent of the Donor and the praying for his soul but an accessary and therefore the charitable use shall support and preserve the Land The Case of the Inhabitants of Woodford in Essex against Parkhurst Hill 14. SIr Henry Leigh did purchase Copyhold lands in Woodford in the name of two of his younger sons and their Heirs they being within age and by his Will Deviseth to Sir William Martin and other Parishioners of Woodford and their Heirs a Rent-charge of 40 s per annum out of this Copyhold land for relief of the poor there and dyes Sir William Martin purchaseth this land and enjoyes it for many years and then sells the land unto Packhurst and his Heirs Parkhurst hath notice of the Charitable use between the Surrender and his admittance the Commissioners Decree Parkhurst to pay all the arrerages since Sir Henry Leighs death and upon his appeal the Lord Keeper resoved these points First that the Rent is well Devised although Sir Henry had nothing in the land in strictness of Law for that the Estate in Law was in the children yet Sir Henry making the Purchase and enjoying the land as owner and receiving the Profits of it he shall be said in Equity to have power to dispose to a Charitable use Also it being objected that there wanted a Surrender to enable him to Devise the Lord keeper said yet the Devise was good enough and shall be said a good gift limitation and appointment within the Statute in favour of Charitable uses Secondly resolved that the Rent although it was extinct in Law by Sir William Martin purchased yet by the Commissioners Decree it is revived Thirdly Resolved the Rent is not extinct by this Purchase although he had no notice of the same for that the Purchase is of another thing then was given to the Charitable use Fourthly Resoved that the Rent is a charge which goes with the Land in whose hands soever it comes and a Distress may be taken for the arrerages upon the ter-tenant for the time it was arrear in others hands and the owners remedy to have contribution against all others that enjoyed the Land before him is by Suit in Chancery and here Parkhurst by the Decree had contribution against all others that enjoyed the Land charged and suffered arrerages to accrew in their time Lastly Resolved that the notice of the Rent given to Parkhurst after the Surrender and agreement for the Purchaser and before his admittance was a sufficient notice within the Statute if notice in this case had been requisite for that Parkhurst was no compleat and absolute Purchasor before admittance so of notice given to a Purchasor of a Charitable use chargeable upon the Land mean between his agreement and sealing of the Writings before the perfecting of the settling of the Estate in him by Attornment Livery or Inrolment of the Deed of Conveyance Hennington Hastings in Com. Warr 6. Jacob ONe Humfrey Davis erected an Almshouse in Hennington Hastings for eight poor men and being Seised of lands in Tennington Monton and â—urbery then let for 10 l Rent per annum doth devise the rents of his said lands for maintenance of the said poor in the said Almshouse and dyes his heir paies the Ten pound yearely for maintenance of the poor at the Almshouse and at the end of the term doth Demise the land at 40 l per annum The Commissioners doth Decree the whole land for maintenance of the Charitable use and the arrerages of the improved Rent taken by the Heir from the time of the expiration of the old Lease until the Decree and that the new Lease shall be void and surrendred and upon the Heirs appeal in Chancery and acceptions taken to the Decree the Lord Keeper referred the Case to the Judges principally whether if one Devise the Rents of his Land to a Charitable use if by this Devise the Land passed and they certified their opinions that by Devise of the Rents of the
per ann. at this day to maintain the Master Vsher and certain poor people in Chelmesford and Moulsham and appointed that the Rents Issues and Profits of their lands should be imployed for their maintenance and not otherwise and appointed the Lord Peter and the Heirs males of his body Sir Tho. Mildmay and the Heirs males of his body Sir Jo. Tirril and the Heirs males of his body and Sir Humfrey Mildmay and the Heirs mals of his body should be Governors of the said Free-School and Lands and that none under the degree of a Knight should be one of the Governors the Governors make Leases of the Lands at under values for Fines and small Rents according as they were at the first Foundation The Commissioners Decree the Government and Ordering of the Lands to others by reason of their breach of Trust Sir Henry Mildmay of Moulsham neer Chelmsford being the chief man that received the Rents let the Leases and defrauded the Trust the rest of the Governors Heirs being within age or beyond the Seas put in Exception to the Decree First that the Corporation had speciall Visitors appointed and so within the Proviso of the Statute Secondly for that the Decree is against the Founders intent who would have none under the degree of Knight to be a Governor to which was answered That when the Visitors break the Trust they may be questioned by Decree of the Commissioners as is the Case of the School of Morpeth and other Cases before cited Thirdly that the generall intent was of Edw. 6. that the Profits of the Lands should be solely converted for the use of the School and poor and that the Visitors and their Heirs should make no profit of it and that of being a Knight was but for the Honour of the Family appointed Governors and they all being persons of great Possessions and living neer Chelmsford But the Lords Commissioners reversed the Decree by reason of the Proviso in the Statute and ordered that a Bill be exhibited against the now Visitors and Governors and that upon proof of their breach of Trust a course should be taken for relief of the School and Poor according to the intent of the Founder The Case where a Tenant in Capite Devised all his Lands to a charitable Vse TH. seised in Fee of the Mannor of L. held in Socage and of 54 acres of Marshland held in Capite deviseth all the Socage-lands to C. Hospitall in L. paying 1000 l after the death of A. the wife of T. H. as she in her life time should appoint the same to be payd Part of the socage-Socage-lands Devised to the Hospitall is by Commission of the Court of Wards set out to N. H. the Heir for his third part A. H. dies and the Hospitall pays the 1000 l The Commissioners for charitable uses have Decreed to the Hospitall all the Socage lands Devised to the use of the poor This being the substance of the Case the questions hereupon arising upon the Appeal were Whether the Devise to the charitable uses be good and whether the Commissioners had power to decree the whole Socage lands devised or but two parts only It was agreed that by the Statutes of 32 and 34 Henry 8. the Devise is voyd for a third part But it was insisted upon that although the Devise be voyd for a third part by those Statutes yet this is such a limitation and appointment within the Statute of 43. Eliz. as doth well enable the Commissioners for charitable uses to Decree the whole First That it hath been generally held that the Statute of 43. Eliz. for charitable Uses doth supply all the defects of assurances where the Donor is of a capacity to dispose and hath such an Estate as is any ways disposeable by him And upon this ground it hath been held That if a Copyholder doth dispose of Copyhold lands to a charitable use without a Surrender or if Tenants in tayl do convey land to a charitable use without a Fine or if a reversion be granted without Attornment or Inrolment and divers other the like cases yet these defects are supplied by the Statute of 43. Eliz. because the Donor had a disposing power of the Estate and this is a good limitation and appointment within this Statute But it is true if an Infant Lunatick or any other person who hath not capacity to dispose an Estate shall grant to a charitable use this defect is not supplied by this Statute and this difference is resolved in Collisons Case 15. Jacob in the Lord Hobarts Reports folio 136. Secondly the words of the Statute of 43. Eliz. are very considerable in this Case for although the Statute doth give power to the Lord Chancellor or Lord Keeper upon complaint to them made to adnull diminish alter or enlarge any Decree made by the Commissioners for charitable uses yet the same is with this limitation so far as may stand with Equity and good conscience according to the true intent and meaning of the Donor and Founder thereof Whereby it doth appear that in all Gifts Appointments Limitations and Assignments within that Statute speciall regard is to be had to the intent of the Donor and this power of adnulling diminishing altering or enlarging Decrees made by the Commissioners for charitable uses is appropriated solely to the Lord Choncellor or Lord Keeper and not to any other and to proceed therein according to Equity and good conscience Thirdly the Case of G. L. Hillar 13. Jac. reported by the Lord Hobart fol. 136. doth resolve the point in question Where the Case being that G. L. being seised in Fee of lands in Cardigan 1571. in August 25. Eliz. Devised the same land to A. his wife for life and after to J. his daughter for life and after these lives ended to the principall Fellows and Schollars of Jesus Colledge in Oxford and their successors to find a Schollar of his Blood from time to time and dyed the lives ended B. L. the Heir of G. L. being the Kings VVard entred and upon a Case made hereof in the Court of Wards and by order of that Court brought to the Lord Hobard then Chief Justice of the Common Pleas and the Lord Chief Baron Tanfield to be resolved of by them who agreed and so certified that the Devise was void in Law because the Statute of Wills did not allow Devises to Corporations in Mortmain yet they held it cleerly within the relief of the Statute of charitable Uses of 43. Eliz. under the words limited and appointed and so it was Decreed that the Colledge should enjoy it against the Ward and his Heirs The Case of Collison 15. Jac. Reported likewise by the Lord Hobard fol. 136. Resolved the point in question where the Case being That Collison 15. Hen. 8. Devised a House in Etham in Kent to L. his Wife for life and after her death made J. K. and others Feoffees as he called them in the said House to keep it in reparations
other Parishoners of the Parish where the charitable use is to be distributed Lastly it was resolved that if a Rent seek be granted to a charitable use the Commissioners by their Decree cannot make this a Rent-charge by adding a clause of distresse unlesse it be for that this alters the nature of the Rent in the creation of it and is against the mind of the Donor Mich. 14. Car. Plate and the Masters and Fellows of St. Johns Colledge in Cambridge PLate being seised of Copyhold Land in tayl in Highgate in Midlesex surrenders this in Court to the use of his Will and suffers a Recovery in the Court of the Mannor in which no Judgement is given against the Vouchee and after Deviseth by his Will this Copyhold Land and all his Free-hold Land to his wife for life the remainder to the Master and Fellows of St. Johns Colledge in Cambridge for maintenance of the Schollars there the Heir of Plate enters upon the wife to avoid the Devise and the Master and Fellows prefer a Bill in Chancery to preserve their interest and to have the Devise to them confirmed The Lord Keeper Littleton resolves that if no Judgement be given against the Vouchee to have in value in case of a common recovery to cut off an Estate tayl that it is a voyd recovery and will not cut off an Estate tayl and as to the wife to whom the Land was Devised for life the Heir had liberty given by Law to evict them but as to the Colledge and the remainder limited to them the Lord Keeper did declare that the Devise is good to them by the Statute 43 Elizabeth touching Gifts Limitations and appointments of Lands to charitable uses for there is gift and limitation of the Land to a charitable use which shall not be avoided for want of circumstance of Law to make it good and also the Lord Keeper said that although the Colledge was incorporated by another name then the Devise was to them and therefore might not be capable of it yet the Devise is good to them by the said Statute also if the Heir avoyd the Estate tayl against the Wife at Law yet the remainder to the Colledge shall stand good and be a remainder without a particular Estate which by rules of Law cannot be but these defects in cases of charitable uses are made good by that Statute by a benigne and favourable interpretation thereupon for maintenance of Charity as it is in other cases upon Statutes for Piety and Charity 13 Jacobi Jesus Colledge Case in Court of Wards referred to the Judges DOctor Floyd seised of Lands in Capite Deviseth them to Jesus Colledge in Oxford and their Successors to find a Fellow there which should be of his blood and alliance and it was referred to the Judges Whether this Devise be good or no and they resolved and certified that by the Common Law and Statute of Wills the Devise was void for these Statutes enabled persons to Devise their Lands excepting to Corporations for that is Mortmain also none can Devise all their Capite Lands to any but must leave a third part to descend but they certified and resolved that although it be voyd by the Common Law yet the Statute of 43. Eliz. for charitable Vses doth make this good as a limitation and an appointment and that it was good for all the Land But if an Infant or Lunatick who by Law is disabled to make a Will or Devise of his Land do Devise his Land to a charitable use this is voyd and not made good by the Statute for want of a capacity to make a Will by Law The Lord Edward Mountagues Case in the Court of Wards 17. Jac. SIr Walter Mountague seised in Fee of Capite Lands in Hanging Houghton in Northamptonshire conveys two parts of these lands unto uses limited within the Statute of 32. and 34. H. 8 and by his Will deviseth the third part remaining in him for maintenance of a charitable use in Wales and upon a reference unto Hobart and Tanfield they resolved this Devise to be voyd and was not aided by the Statute of 43. Eliz. for charitable uses for in the instant of his death the Lands descended to the Heir and the Devisor having disposed of two parts in his life according to the Statute of Wills he is disabled by the Common Law and those Statutes as owner of the Lands to Devise any part of his third part remaining See Doctor Floyds Case before in Jesus Colledge Case Seymor against the poor of Twyford Trinity 1634. MOney was given to charitable uses and detained a long time as concealed the Commissioners upon the said Statute Decreed the Money to be paid with interest after the rate of 8 l per cent and this Decree was confirmed by the Lord Keeper So in the Case of the Lady Mountague of Ilford and the Inhabitants of Barking in Essex Sir Charles Mountague her Husband gave by his Will 10 l to the poor of Barking and made his Wife Executrix and died she kept the Money above twelve years in her hands and the Commissioners Decreed her to pay 20 l for the detainig this Money for use and principall and the Lord Keeper Coventry confirmed this Decree about 12. The Poor of East Greenstead against Howard 8. 10. REsolved by the Lord Keeper upon Appeal to alter or confirm a Decree made by Commissioners upon the Statute of Charitable Vses the Decree is not perpetuated and not to be altered but by Act of Parliament and is to remain in the Pety Bagg and it is in his power to make a Decree good where it is defective Hungate on the part of the Inhabitants of Sherborn 3. A Debt owing by Statute Bond Judgement or Recognizance which in Law is a thing in action was given for the creation of a School and this was Decreed to be a good appointment within the Statute to maintain a charitable Use Steward against Germyn 41. Eliz. ONe having Lands and Goods appoints by his Will that the same shall be sold to maintain a charitable Use and doth not appoint by whom the sale shall be made the Commissioners do by their Decree appoint that J. S. shall sell these Lands and Goods and Decree his sale to be good and that the money to be raised thereby shall be imployed to maintain the charitable Use according to the Donors Will and this Decree was confirmed by the Lord Keeper upon an Appeal to him Hellams Case 5. Caroli A Devise was made of Lands to the Company of Leather-sellers in London to maintain a charitable Use there upon a Decree by Commissioners to settle the Lands upon the Company an Appeal was and exception taken for that the Company of Leather-sellers was a Corporation and the Statutes of Wills doth except Devises of Land to a Corporation but the Decree was confirmed there being many Presidents in it The Schoole of Rugby in the County of Warwick 2. Caroli ONe seised in