attorneygeneral v Meyrick Nov see Galliero v moss b c see now mortmain and  charitable use Act Vict c S at the roll sir John strange master of the roll  devise to a charity by mortgagee in possession of all money due on his  security be within the mortmain act c c vide S p attorneygeneral v Caldwell  Amb Pickering v Lord Stamford Ves jun and and in Ves jun and house v chapman  Ves so likewise as to turnpike toll Knapp v William in a note to Corbin v  French Ves and house v chapman where above so likewise of turnpike toll and  money on security of poor rate and countyrates so as to money secure by  assignment of poorrate and countyrates finch v squire Ves supplement Oliver  Jones seize in fee in mortgage to William Edward and his heir for a sum of  money and interest which not be pay in time Edward the son bring a ejectment  obtain judgement and writ of to have facias possession under which be in  possession he make a will in in which be this clause whereas I be possess of  certain sum of money due by mortgage and other specialty secure to I on the  estate of Oliver Jones together with other effect my will be and I give all  the say money in anywise due by mortgage note or assumpsit on the estate of  Oliver Jones whereof I be now possess by to have facias possession and also  all my personal estate in trust to pay my debt legacy and funeral expense  vesey senior and afterward that the trustee shall settle a place for the  school and teach so many poor boy cloth they c and to pay the master for such  teach as the interest of the money I be possess of by security on the estate  late of Oliver Jones will support and maintain and I devise to they all the  money due on that estate to be lie out at interest on good security to apply  the interest thereof to the maintenance of the say school for ever this  information be to have the charity establish and carry into execution the heir  at law of Oliver Jones be a party insist by his answer to redeem but have not  yet do so for the relator the mortgage premise be not devise but only the  money due by mortgage and the heir at law of testator ought to be a trustee  for the charity this devise not be within the intent or word of the mortmain  act g c it be only a devise of the beneficial not of the legal interest which  descend to the heir the land be alienable and this be give in money not as  land mortgage be always personal estate in this court and the mortgagor not  mortgagee consider as owner this be liable to pay debt and to be recoverable  by a executor without who assent it can not be demand by a legatee it be  doubtful whether by devise of all one estate a mortgage will pass though a  alien be not capable of take land it have never be determine that he may not  take a mortgage so of a papist beside security for money be allow to be give  under the requisite of the act by the first clause e con this case be express  within the meaning and provision of the act the intent of which be to prevent  that false charity arise from ostentation and vanity devise the money due on  mortgage be a devise of the mortgage videlicet of all the beneficial interest  the testator have so that it amount to the same this be only to be consider as  personal estate as between the executor and heir at law of mortgagee and the  reason of be so consider be from its not be the intent to realise it but as to  other purpose it be to be consider as land like a devise of rend and profit of  land which be a devise of the land itself and by the intervention of a court  of equity this may be make land it be to be consider as it stand at testator  death and then any other future act whether it be redeem or not will not alter  the case if mortgagee on a estate be not within this statute it will be easy  to elude it for then the mortgagor as he please to redeem or not may make it  within the act or not this be like the popery act and will be consider by the  court in the same light vesey senior sir John strange master of the roll take  time to consider of the cause which be hear last July and now pronounce his  decree in consider the general question whether or no this devise be within  the act two thing be necessary to be inquire into first what right or interest  will pass by this will in the matter in controversy if that statute be out of  the case second when that interest be see which will so pass then to consider  whether that do or do not come within the prohibition of that law vesey senior  er p consider the testator right at the time of make the will and also of his  death as it be a mortgage in fee the legal estate descend on his death in the  whole inheritance to his son and heir who have recover in ejectment possession  of the estate and be entitle also to the equitable interest of the  mortgagemoney consider as personal estate and capable to pass as such and be  thus owner make the devise in question note money due on mortgage devise to a  charity in Ireland executrix affirm the bequest be hold a admission of asset  and the bequest good but Lord Loughborough say if asset have not be admit the  bequest will have be bad be a charge on land here brown the distinction make  on the part of the relator between a devise of mortgage premise and of the  money due on mortgage do not seem well find by a gift of all one mortgage to a  the whole beneficial right passes to he and be the legal interest either in  the heir or executor as it be a mortgage in fee or term for year each will be  consider as trustee for a who will be permit by the court to use their name to  get the money or make they pledge estate his own by foreclosure if it will be  so in that case then will it be equal so though the phrase use be money due on  mortgage where unless the court construe it to pass the whole interest of the  mortgagee it will make it in effect a void devise or at least put it in the  power of a three person whether the devisee shall take thereby or not and it  have right be compare to a devise of rend and profit by which the land itself  will pass for what be the land but the profit in maundy v maundy stram b r  Trin Geo it be hold that by devise of groundrents the land itself will pass  but if this be not sufficient it be far observable that the devise in question  be to they and their heir of all the money due to the testator on the say  estate which must either pass the legal inheritance to they and their heir or  if that be still leave behind in his own heir he will be bare a trustee for  they therefore by such devise the whole interest will pass to the devisees who  will be entitle thereby to every right the devisor himself have to compel  payment of the money or to make the estate their own by foreclosure the second  inquiry must depend on consider the reason and design of that law and the  clause therein the title of which be vesey senior to restrain the disposition  of land whereby they become unalienable and the preamble recite they to be  prohibit by great Charta c the act of parliament be not a total prohibition to  give land or personal estate to be lie out in land but only sub modus and any  variation therefrom be declare to be a public mischief then such a  construction ought to be make by the court as be most effectual to repel the  mischief and advance the remedy therefore if this devise tend to let in the  mischief intend to be prevent it be the duty of the court to guard against it  take effect the only consideration for the court be whether the gift in this  case come within the prohibition or not and I be of opinion that this devise  come within the express word and plain intent thereof the design of the act be  to lie a restraint on every method whereby land may possible come to such hand  unless by the manner therein prescribe the first part therefore be absolute  leave however more liberty as to personal estate but see that will not  sufficient answer the intent of the legislature if confine to land it add a  prohibition as to personal estate that it shall not be give to be lie out in  the purchase of land but be there no other way whereby the interest in land  may come to a charitable use yes money due on mortgage be a charge and  encumbrance on land the payment of which depend on the pleasure and ability of  the mortgagor therefore the parliament have by express word take in this by  the three clause the word of which if they do not extend to the case of  mortgage I be at a loss to know for what purpose they be put in the meaning be  that you shall not give to a charitable use that which be or may be a charge  on land though not so at the time of the gift suppose a sum of money be devise  to be put out on a mortgage of freehold land be not this restrain by the act  if then a mere personal chattel may not will it better the case that at the  time of the gift it be actual vest and how absurd will it be in the parliament  otherwise though by the first clause security for money be allow to be give  under the requisite of the act yet the subsequent word of that clause afford a  argument that mortgage affect land actual at the time of the gift will not  come within the meaning as there may be other security for money not immediate  liens on land as debt bind c I shall think that on the first clause mortgage  be prohibit but if doubtful on the first the word of the other clause take it  in express and on that latter clause chief vesey senior er p I find my opinion  and it contain word not in the statute of will c for prevent the growth of  popery see also Ves jun and the case show the court have make as liberal a  construction to prevent the mischief as possible the information therefore  must be dismiss but be a new case see ace Ves jun without cost