case attorneygeneral against Lord weymouth and other see Jeffries v Alexander  h l c Arden v Arden h d devise of land to be sell and the residue of the money  after payment of debt c to charity the devise hold to be void by stat of  mortmain see attorneygeneral v greaves and attorneygeneral v Tomkins post  pound and note there S C Cox ms W in Lincoln inn hall Hilary term Geo sir John  James late of saint Edmund bury baronet by his last will date that may devise  to Richard Dalton James Calthorpe and Joshua Grigby the executor of his will  their heir and assign for the use of they their heir and assign all and every  his manor message land tenement and hereditament both freehold and copyhold  and all his real estate whatsoever in trust to sell and dispose thereof as  soon as convenient may be after his decease and to pay all the money to arise  by sale thereof and the rend issue and profit in the mean time and until such  sale all necessary charge deduct unto such person or person and for such use  intent and purpose as he have thereafter give and bequeathe the same and then  he bequeathe pound to his late brother widow Elizabeth James and pound to the  say James Calthorpe and to the say Joshua Grigby and one orbell ray pound to  be lie out by they as a fund for certain charitable use which he forbear to  mention because they know his design as to charity and he do not doubt their  strict compliance therewith l r and likewise pound to Joshua Grigby for his  care and trouble and then he declare his mind to be that his debt funeral  expense and legacy by his say will give and bequeathe shall be pay and satisfy  by and out of his personal estate if the same shall be sufficient for that  purpose but if the same ambler er p shall fall short then he further declare  that such deficiency shall be ambler make good by and out of the money to  arise from the sale of his real estate or of the rend land profit in the mean  time and subject to the payment of his say debt legacy and funeral expense he  give and bequeathe all the money to arise by sale of his real estate and by  the rend and profit thereof in the mean time and until such sale and also all  his personal estate unto the say Richard Dalton James Calthorpe and Joshua  Grigby his say executor in trust to pay over one equal moiety thereof to the  governor of the hospital of bethlehem in London for the benefit use and  support of incurable lunatic to be maintain in the say hospital and upon trust  to pay over the other moiety thereof to the treasurer for the time be of a  society to call themselves the governor of saint George hospital near hide  park corner to be apply towards carry on the design of the say hospital and  thereupon the attorneygeneral at the relation of the say hospital file a  information against the say trustee under the will and against Lord Weymouth  and other person who claim as heir at law to the testator some of who have  take possession of his real estate pray that the testator estate may be sell  and the money arise by such sale and also all money receive or to be receive  for mean profit till such sale may be apply for theuses intent and purpose  direct and appoint by the say will and to the defect of a surrender of a  copyhold estate to the use of the will in favour of the skid charity or that  the whole real estate of the testator may be so marshal and such direction  give as will best answer the charitable purpose of the testator the defendant  Lord Weymouth as to so much of the say information as pray that the money  arise by sale of such part of the real estate of the say sir John James as  come to the say sir John James by purchase or which descend to he on the part  of his mother and that the money which have arise or be receive or till such  sale shall be have may arise and be receive by the rend and profit thereof may  be apply to and for the charitable use intent and purpose in the will of the  say sir John James direct and appoint plead the statute make in the nine year  of his present majesty Geo ch entitle a Act to restrain the dispsition ambler  of land whereby the same become unalienable and by his answer set out his  title to the premise as heir to the testator on the part of his mother on a  supposition that sir John James die without heir on the part of his father on  argue this plea at Lincolnsinn hall the attorneygeneral c on the part of the  information press that the plea may stand for a answer allege that they be not  sufficient prepare on a point of such importance but the chancellor be  unwilling they be oblige to argue it Lord chancellor I shall be very glad if  there be any doubt in this case to let the plea stand for a answer with  liberty to except c butwhere the court have no doubt it be not for their  credit to let the party proceed and to suppose that I have any doubt concern  it may encourage person to try the experiment of leave their land to charity  in this manner when there be a certain way of do it point out by the act of  parliament a objection have first be make to this plea because the defendant  have not sufficient show themselves to be heir at law to who this estate can  descend but I be of opinion that this be not material upon this plea the  defendant be in possession and be they stranger in possession they need not  have show a title in themselves but a want of title in the relator and have  plead this act of parliament by way of bar upon the merit there be two general  consideration saint what be the true construction of this act of parliament  dly what be the effect of this will it be insist that the true intention of  the act be accord to its title to restrain the disposition of land whereby  they become unalienable and this be the only intention of the act but I think  the intent of the act be take up much too short for the title be no part of  the act and have often be determine not to be so nor ought it to be take into  consideration in the construction of this act for original there ambler be no  title to the act but only a petition and the king answer and the judge  thereupon draw up the act into form and then add the title note in Mr coxes ms  this passage stand thus and such title be only a direction to find it out by  among the roll of parliament and at this day the title do not pass c and the  title do not pass the same form as the rest of the act only the speaker after  the act be pass mention ambler er p the title and put the question upon it  therefore the meaning of this act be not to be infer from the title but we  must consider the act itself it first take notice that gift and alienation of  land in mortmain be prohibit by diverse wholesome law as prejudicial to the  common utility and then it proceed that nevertheless this public mischief have  great increase by many large and improvident alienation or disposition make by  languish or die person or by other person to use call charitable to take place  after their death to the disherison of their lawful heir the reason of this  statute be be to prevent the disherison of heir and as a guard to hinder Cox  ms to hinder gift by die person out of a pretend or mistake notion of religion  as think it may be for the benefit of their soul to give their land to charity  which they pay no regard to in their lifetime and therefore the act of  parliament have not absolute prohibit the disposition of land to charitable  use but leave it to be do by deed execute a year before the death of the  grantor and enrol within six month after execution though this will render  they equal unalienable but the legislature blend the two inconvenience  together the act of languish and die person and the disherison of heir this be  the general intention of the act what be the provision of it that from and  after the that of June no manor land tenement c nor any personal estate to be  lie out in the purchase of land shall be give grant alien limit release assign  and transfer or appoint or any way convey or settle upon any person for any  estate or interest or any way charge or encumber c in trust or for the benefit  of any charitable use whatsoever these word import saint that it shall not be  in the power of any person to convey the land themselves dly that it shall not  be in their power to charge or encumber they ambler and therefore it must be  agree that no man can charge pound pound or even pound on any land of ever so  great value to any charitable use whatsoever and the present case be strong as  it give the whole residue after payment of particular legacy c to a charitable  use not only the gift of land themselves be make void by the act but even any  charge out of they see negus v coulter post then consider the second question  what be do by this will and I be of opinion that it be both a devise of the  land itself and a gift of the money arise by the sale of the land after  payment of particular charge contrary to the prohibition of the act saint it  be a gift of the rend and profit in a sale and how long it will be before a  sale till what time it will be postpone nobody know no man have a right to  compel the trustee to sell if they pay the debt and legacy but the charity and  it be to devise of the rend and profit it be a devise of the land themselves  then as to the devise of the money arise from the sale I do not think it  necessary in order to determine this question to say whether it be to be  consider as a devise of the land or money but if this act of parliament do not  stand in the way the person entitle to the residue may have come and pray to  have the land in this court instead of the money and may have retain it as  land and the rather as the testator have give the profit till sale so that he  have make they owner of the equity of the estate and therefore this be as  strong a case as that of roper and Ratcliff Mod but I will not depend upon  that case because I be of opinion that whether this surplus be to be take as  money or land it be just the same thing and that this act of parliament be  strong than that of that and that W against papist for there the disability be  upon the person take and it be say on his behalf that when he come to take he  will have it as money and the act of parliament have create no disability to  take money but here the disability be lie upon the person devise see mogg v  Hodges Ves the prohibition be that no manor c shall be give c by any manner of  word or any way charge or encumber by any person whatsoever and the subsequent  clause make void all charge and encumbrance for the benefit of a charity  ambler therefore if sir John James instead of devise the surplus have say I  charge my real estate with the payment of pound to a charity it will certain  have be void by the express word of this act and will it not then be extreme  absurd to say he shall be able to give his whole real estate to be turn into  money for the benefit of a charity if he can not give a part of it Cox ms it  be impossible in my opinion to say that such a devise as this can be maintain  and therefore I think it will be very wrong to let the plea stand for a answer  which ambler er p may lead the party into further expense and induce people to  devise their land in this manner plea allow on that February this cause and  another in which James be plaintiff against Lord Weymouth and other come on to  be hear with respect to the charity and other matter when Lord Hardwicke  establish the will and direct the trust to be perform except as to the devise  of the surplus of the real estate to charity and declare if the personal  estate be not sufficient to pay debt funeral expense and legacy that the  legacy of pound and the interest give in trust to be lie out and settle as a  fund for charitable use ought to be satisfy entire out of the personal estate  as far as the same will extend and that the residue of testator debt and other  legacy and the interest thereof ought to be raise and pay out of the real  estate and decree accord James bring the last bill as heir at law on the  father side to set aside the charitable devise and for a account of rend and  profit court will marshal asset in favour of a charitable legacy see in  Johnson v Arnold Ves Conyngham v Conyngham ib Allan v backhouse v b u belt v  Mitchelson belt supply stretch v Watkins mad south v Alleyn salk and see post  and note there or of the money to arise from the sale thereof and of the rend  and profit thereof in the mean time upon trust for the charitable use in  testator will which his lordship declare be contrary to stat Geo c and declare  in case after payment of the debt funeral and testamentary expense and legacy  there shall remain any surplus of say testator personal estate then that such  surplus shall be apply to and for the charitable purpose declare by the will  but if the personal estate be not c as in the text lib Reg a