attorneygeneral v tyndall see try v corporation of Gloucester Beav Philpot v  governor of saint George hospital h l c observe upon carter v green l I Ch  king I see warren v Rudall king I where testatrix devise her freehold and  leasehold estate to trustee which she direct they to sell and buy ground and  erect a almshouse and lie out the residue in land and also give the residue of  her personal estate to the like use the devise of the freehold and leasehold  be void under the statute of mortmain part of a decree at the roll which  declare that if the trustee can obtain the gift of a piece of ground they may  erect a almshouse give they two year to procure such gift and also that they  be entitle to have the asset marshal so as to throw the debt c on the  leasehold reverse on appeal by the Lord chancellor that June that march SC Amb  jewel ms mary packer by her will bear date the that of November devise all her  freehold and leasehold estate to trustee upon trust to sell and dispose of the  same and out of the money arise by such sale part she will to be lie out in  the purchase of a competent piece of ground for erect and building a almshouse  in the parish of saint James in the city of Bristol and the other part to be  lie out in the building erect and furnish the say almshouse and she will that  the whole of the money to be lie out in purchase the ground and erect such  almshouse shall not exceed Eden pound and the residue of the money arise by  such sale and all other money she stand possess of shall be lie out in the  purchase of land in the name of trustee in trust out of the rend and profit to  pay certain weekly stipend to twenty poor person who she have before appoint  to live in the say almshouse and until such ground and almshouse can be  purchase and erect and such land c out of which the say weekly allowance be to  arise she will that the money arise out of the leasehold and freehold estate  shall be place out on government or real security and the dividend and  interest apply to increase the capital fund to answer the end of her say  intend charity as near as the nature of the trust and circumstance will admit  of then come the follow clause and in case my say intend charity can by the  law of the realm take effect in manner as I have express myself then I do  hereby give the money arise by sale to the say trustee upon trust to dispose  of the same for such charitable use intent and purpose as shall be as near  agreeable to the trust intent and purpose hereinbefore express as may be and  the law of the land will Eden er p admit she then give the residue of her  estate to such use intent and purpose as aforesaid the cause come on for hear  first at the roll on the that of December when his honour declare the devise  of the testatrixs freehold and leasehold estate for the charitable purpose be  void and direct a account of the personal estate the master to state the value  of the leasehold estate and cost to that time by consent out of the estate the  cause come on after the master report for further direction on the that June  his honour declare that in case the defendant the trustee can obtain by gift a  competent piece of ground in the parish of saint James in Bristol and as near  the church as may Eden be for the purpose of erect a almshouse for the poor  people mention in the will the charity will be entitle to have the leasehold  and mere personal estate so marshal as to throw the debt funeral expense  legacy and cost on the leasehold estate in order to have the mere personal  estate free and clear to be apply to the erect and endow the almshouse in  manner direct by the say will and he therefore order that the space of two  year shall be allow the say trustee for procure if they can a gift of such  piece of land and in the mean time the leaseholds shall be sell and be lie out  in the purchase of per cent console c it now come on upon appeal by the next  of kin from the above decree Mr jewel Mr de grey and Mr Stainsby for the next  of kin the attorneygeneral Mr perryn and Mr Hoskins in support of the decree  the Lord chancellor it be extreme well and forcible observe by Lord Hardwicke  in the attorneygeneral v Lord Weymouth Amb that the true end and design of  this statute of mortmain be to hinder gift of 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 or personal estate to be invest in land to charity which they  pay no regard to in their lifetime and therefore the act provide 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 c shall be give grant c to any person  whatsoever in trust or for the benefit of any charity and that learned judge  appear to I throughout the Eden several judgement which he pronounce on this  statute to have persist with great firmness and at the same time with great  candour in carry it into execution and therefore in the case mention he  determine on hear the plea that a residue of land convert into money be a void  gift to a charity in that case and in the case of mogg v Hodges Ves sen he  refuse to marshal for the benefit of the respective charity and his reason  appear to I unanswerable he ask what be the will it be a illegal disposition  to a charity and be I to set up a compensation for that in the case of  Sorresby v Hollins Mod that August Lord Hardwicke show his equality of  judgement to the charity and in the case of Grimmett v Grimmett Amb even more  strong have premise thus much I come to the case under consideration here his  lordship state the case very full this appear to I to be a new case arise upon  the statute of mortmain a law find upon good sense and sound policy and  therefore I shall think it my duty to carry it into execution accord to the  spirit of the legislature the decree at the roll have declare that the devise  of the freehold and leasehold be void by the statute of mortmain which be  indisputable the freehold therefore descend to the heir the remain question be  only what be to become of the leasehold and other personal estate consistent  with this statute the specific devise of the leasehold to the charity be void  saint shall the charity take it as part of the residue of the personal estate  and so the testator do per sidelong quod non to be able to make per straight  line or shall the court say in the same decree your intent and act be illegal  but I will help you at a shift and Eden do that for you which you can not do  for yourself I will contradict the legislator and you shall be enable  substantial to give your land to a charity the devise of which I have decree  void because give to the same charity this seem to I a strange construction to  put upon the statute and as strange a inconsistency in the decree the mode of  do this attempt by the present decree be by marshal that which in the light  that the court see it be one and the same fund for it have decree the specific  devise of the leasehold void it consider the leasehold as drop Eden er p into  the personal estate and become one fund which it marshal this I do not  understand the old rule of marshal asset respect two different fund and two  different set of party where one set can resort to either fund the other only  to one it be ground on obvious equity it do no prejudice to any body and it  effectuate the testator intent but where there be no double fund what be  marshal for the residue to put on the void specific legacy devise of the  personal estate the debt other legacy and cost that the charity may have pro  tanto out of the void legacy devise in the case of the attorneygeneral v grave  Amb accord to my note Lord Hardwicke say I shall not set up a new rule for the  benefit of the charity but they may have the benefit of the old rule when  there be general legacy and the testator have charge his real estate with  payment of all his legacy the personal estate not be sufficient the court have  marshal if therefore I be of opinion with the decree as to Eden the residue I  shall be against this confuse idea of marshal and set that aside but I be now  to suppose that the void devise of the leasehold drop into the residue of the  personal estate and that it bear the proportion of debt and legacy in average  and augment the residue for the charity I be of opinion this can not be do  consistent with the statute of mortmain and the intent of the testatrix saint  because the word of the statute be negative that no interest in land shall go  to a charity dly because it be the intent of the testatrix that the trustee  shall take this by specific devise and not as part of the residue of the  personal estate and therefore the clause whereby the testatrix give all the  rest and residue of her personal estate to the trustee to dispose of the same  for the charitable end intent and purpose aforesaid must be consider to mean  only the residue exclusive of the land particular and specifical devise and  therefore consistent with the will and statute the charity can at most only  take such residue be there no other objection to the devise of such residue  but I who be bend by my judgement against all chicanery to avoid the statute  must examine the ground upon which the devise of the residue be at all to be  support the decree declare that the residue can be support to purchase the  site for the almshouse but that it may to the building of the almshouse if  ground can be give and this part of the decree be find on the authority of the  attorneygeneral v bowl atk Ves sen but that precedent have no influence on my  judgement Mr ambler in his report of this case have represent his lordship as  have use the follow observation upon this point the decree in this part be  find upon precedent of the attorneygeneral v bowl which be a authority for the  master of the roll but I feel only one authority that of the house of lord  which be a superior court no other authority have any influence on my  judgement p it be observable that there be no trace whatever of this  expression either in the copy of the judgement which be fortunate in his  lordship own handwriting from whence the above report be take nor in the jewel  ms we may therefore safe conclude from the know inaccuracy of that reporter  that these word be never use saint because building on a site be lie out Eden  the money in realty and therefore contrary to the spirit of the statute it  improve the site be demandable in a prcipe and be a purchase of so much realty  such a determination be open a door to evade the statute to those donor who be  indifferent in what species of charity they bequeathe their money who motive  be the gratification of their vanity and not the service of the poor if these  precedent be to prevail we shall see almshouse turn into palace and small spot  of ground cover with immense building note the same opinion be express by Lord  Rosslyn in Blandford v Thackerell cit post but subsequent case have clear  overrule it vide the observation of Lord Alvanley in Corbin v French cit post  and the note at the end of this case dly because it be contrary to the intent  of the testatrix who have intend her charity to be entire and not confound  with that of another to make her go beg for ground be contrary to her  intention and what most likely she will not have submit to it be depart from  the will to do a illegal act dly because such construction be fritter away the  statute and be productive of such subtlety Eden as bewilder and perplex judge  the two proposition in the statute be as clear as any in Euclid saint you  shall not give land to a charity dly you shall not realize for the benefit of  a charity if the doctrine of the attorneygeneral v bowl be to prevail land not  worth pound may become worth pound as to the gift of the general residue of  the personal estate I hold that void likewise as it appear to I to be give to  be lie out in land and tenement it be devise to such use intent and purpose as  aforesaid and the only purpose in the will be to be lie out in land for  charity before the statute in case of a bill bring for the purpose the court  will have direct the residue to be lie out in land in Sorresby v Hollins the  original intent be to lie out the money legal in land or otherwise here the  original intent be to lie it out in land only the trustee can depart from the  original intention nor can they be permit to let the money remain on Eden er p  security the immediate precedent clause be and in case my intent can by law  take place the trustee be to lie out the money to such charitable use intent  and purpose as near to my intention as can be and the law will permit whether  any use be make of that clause at the hear do not appear but I be clear that  it be a fraudulent and a void clause it be insert as a mean to intimidate the  heir at law and the next of kin and prevent their oppose the charity I be  therefore of opinion that the decree must be reverse except so much as relate  to cost the account and security of the money arise by sale of the leaseholds  and let the surplus be distribute accord to the statute of distribution upon  the argument of the case of the attorneygeneral v Downing Amb the  attorneygeneral Mr York take notice of the present case observe that it do not  contradict the determination of the attorneygeneral v bowl but be  distinguishable from it in respect that in the present case the trustee be to  buy the land in the attorneygeneral v bowl they be only to erect almshouse and  Lord Northington assent to the distinction he say the foundation of his  opinion be that the testatrix have direct the ground to be buy and therefore  that he shall have be disappoint her intention if he have give liberty to  erect a almshouse in case any body will have give the land this be the true  ground and reason of the present decision in the early case of Vaughan v  Farrer Ves Castril v baker cit ib and the attorneygeneral v bowl the doctrine  of which be not affect by this determination it have be hold that land may be  build upon though there be none already in mortmain the construction put by  Lord Hardwicke upon the word erect be that it do not necessary imply to build  much less a purchase of ground for building that it may mean mere endowment or  foundation subsequent case however beginning with Pelham v Anderson post have  give a different construction to it and it be now consider that prima fancy  the testator must be take to I a by that word that land shall be buy Ves it be  now therefore as observe by Lord Eldon clear establish that unless the  testator distinct point to some land already in mortmain the court will  understand he to mean that a interest in land be to be purchase and the gift  be not good Ves the case on this point be Pelham v Anderson Eden  attorneygeneral v Hutchinson Amb cit bro c c n foy v foy Cox attorneygeneral v  bishop of Chester bro c c brodie v duke of chandos cit ib attorneygeneral v  bishop of Oxford cit ib attorneygeneral v Nash bro c c Blandford v Thackerell  bro c c SC Ves jun Corbin v French Ves chapman v brown Ves attorneygeneral v  parson Ves attorneygeneral v Davies Ves attorneygeneral v Mumby Meriv but a  direction to establish a school have be consider valid attorneygeneral v  William bro c c and where under a bequest to erect a school the testator have  express direct that land shall not be purchase intimate a expectation that  land will be give the bequest be hold valid Henshaw v Atkinson mad Reg lib a  fol Eden Eden er p