boson against Statham in Chanc Nov see Lomax v Ripley Sm g devise to a b and c  and the heir of the survivor declare to be in trust for a charity and  therefore void although no declaration of trust execute accord to statute of  fraud this bill be bring to set aside a will as be a devise within the statute  of mortmain Geo two and to set aside a release execute by I b ancestor of  plaintiff boson as be obtain by fraud he be ignorant of his right when he  execute it Cox chancery case er p it be admit by the answer that the testator  by a instrument bear even date with the will and attest by two witness only  after take notice of the statute of mortmain request his say executor to lie  out the surplus of his personal estate in the purchase of house and land for  the erect a schoolhouse in the parish of Hinckley in Leicestershire and also  request his trustee to settle his real estate to the same use and purpose with  power to choose other trustee c I testator die John his son ignorant of this  secret trust release his right and accept a legacy of pound and now the  plaintiff pray to have this release set aside claim the real estate as a  result trust insist that the devise be within the statute of mortmain be void  and together with the other plaintiff as next of kin pray a account of the  personal estate N B the survive trustee against who the bill be bring admit  the instrument and set it forth in his Cox chancery case answer but submit the  effect and operation as also the intention of it to the court and insist that  as it be not execute accord to the statute of fraud it can not control the  devise of the legal estate in the will and deny that the trustee have any  knowledge of the instrument until after the testator death but he no  whereinsisted that the trustee be to take any beneficial interest to  themselves it be argue for the plaintiff that the court will receive this  instrument as evidence of the secret trust and it be compare to the case on  the popish act Unitt v Bartlett June bill to have discovery of a trust for a  papist demurrer because disable himself overrule panton v Lorran may defendant  charge to be a trustee for a papist and a issue be direct so in case of  superstitious use attorneygeneral v Jones June James the devise be charge to  be for a popish masshouse a trial direct and the devise decree void Adlington  v can Andrews atk Edward v pike march this be a bill bring to have a  reconveyance of a estate devise in mortmain the devise be to trustee and the  testatrix read a memorandum to they require they to convey the say estate to  the corporation of Salisbury for the charitable purpose mention in the will  the trustee in their answer set forth that when the memorandum be receive they  say nothing and deny they have make any promise to convey but it appear that  conveyance have be actual make to the corporation and the trust declare accord  by indenture the court be of opinion that the trustee take the estate on a  promise and declare the devise void and decree a reconveyance on the part of  the defendant it be say that the devise to the trustee and their heir can not  be control or revoke without the solemnities of the statute of fraud that Lord  h be of that opinion in Adlington v can that it will be more convenient to  break in upon the statute of fraud than the statute of mortmain that therefore  the Cox chancery case devise to the trustee by the will ought not to be revoke  by the second instrument attest by two witness only that suppose the testator  mean a trust for the charity yet it do not appear that the trustee mean to  execute it that the statute of mortmain extend to such trust only as can be  declare by a court of equity and not to honorary trust which depend mere on  the conscience good v I Lord keeper Henley I have consider this question with  attention and it seem to I that these two instrument be full of craft and  evasion of the law of the land I e the statute of mortmain the statute of  mortmain begin with great Charta I have hear the late Lord chancellor go  through they all and conclude with say he think they have be render  ineffectual by the interpretation which have be put upon they by court of  justice this be a melancholy rear to the subject for my part I will support  the law as far as I can without shake thing which are establish the question  be no more than this whether since the statute of mortmain a man can devise to  a charity on a honorary trust in defiance of the legislature which have forbid  all devise of land in trust for charity l will always support what l have  already lie down on former occasion no one to be able to make per oblique quod  non to be able to make per straight line but what stand in my way to prevent  my declare this a result trust the first objection be that the beneficial  devise to the trustee and their heir by the will be not to be revoke or  control by the second instrument it not be execute accord to the statute of  fraud and therefore it can only be take as a honorary trust and as such be not  within the statute of mortmain that be to say Cox chancery case er p that be a  fraud against both act it be not within either second that it will be more  inconvenient to let in fraud and perjury by open the statute of fraud than to  let in devise to charity by open the statute of mortmain when they come in  competition it be remarkable that this question of a trust declare on a will  by a instrument not attest with the solemnities of Cox chancery case the  statute of fraud have not be agitate except in the case of Adlington v can  which I shall observe upon hereafter suppose this to have be the case of a  voluntary settlement on a sound construction of the statute of fraud and  consideration of the nature of trust precedent to that statute I be of opinion  that this second instrument will have be a sufficient declaration of trust as  to the case of Adlington v can when it be consider no difference will be find  between Lord hardwicke opinion in that case and I in the present three  question be make in that case but not accurate for the second be make mere to  introduce the old argument that the court will go further in the case of a  charity than in any other in answer to which the attorneygeneral v spillet be  cite to show that charity stand on the same ground with other and to which  every man of sense subscribe but the only ground of the decree in that case be  on the three question the uncertainty it be uncertain what be to be give to  the charity in Newton v Pelham Aug bill to discover a secret trust the answer  say it be not for the benefit of the plaintiff on exception it be hold  insufficient for the defendant make himself judge of the title and it be say  per curian perhaps it may be a trust for a charity the present case be extreme  different from Adlington v can for there the will and the paper declare the  trust be execute at different time and therefore there be more room to say it  require the solemnities of the statute of fraud but here the execution of the  will and if the trust be at the same time and the declaration of trust  incorporate into the creation of the estate but I will speak open and declare  my opinion general that a write sign by the party who have power to make the  trust declare a trust upon the will be good though such write be not attest by  three witness accord to the solemnities of the statute of fraud the statute of  fraud be not mean to prevent person take trust estate but only to regulate the  proof of they Cox chancery case the statute of mortmain mean to prevent a  particular species of trust I e trust for charity the one strike at imposture  the other at weakness and superstition the statute of mortmain mean to prevent  honorary trust or devise for charity wherever art well ingenio and the  honorary trust infect the will as much as if it be declare in the most solemn  manner to admit a distinction will be to overturn the resolution on the popish  act which I by no mean intend to do declare that the devise of the real estate  to the several devisees and the heir of the survivor of they and likewise the  bequest make of the personal estate to the residuary legatee and executor be a  intend trust for the benefit of a charity and be as such void by the late  statute of mortmain so far as they relate to such charity and decree c c Reg  lib a fol