case ADDLINGTON versus can and andrews July disregard on point as to usury atk  Nichols v lee Anstr see Muckleston v brown Ves Jur Podmore v gunning sim  Briggs v penny de g S there must be a will duly execute to create a charitable  use and the court will not set up a trust for a charity without a declaration  in write for in this case Lord Hardwicke hold that charitable use be within  both the clause of the statute of fraud and perjury as well within the clause  of devise as the clause relate to the declaration of trust and notwithstanding  there be circumstance which show the inclination of the testator here that  some part of his estate shall go to charitable use yet he do not think the  evidence arise from thence certain enough to decree this to be a trust for  charity and that admit parole evidence to prove it will be break in upon the  statute Laurence Hollister be seize of several message land and tenement in  Bristol and other place do by will date the that of march devise all his  message c in Bristol to a company of merchant there in atkins trust to dispose  of the rend c not exceed pound for the building of a hospital to be call saint  Laurence hospital and to be under a master for instruct in read write  arithmetic and mariner art as many boy as the profit of the estate give by he  to the use of the hospital will cloth and it be his desire that the defendant  and other person name in the will shall determine all matter in difference  relate to the hospital and after their death the dean and chapter of Bristol  and their successor for ever shall be the inspector of the hospital and  appoint the defendant Cann Andrews and four other person executor Mr Hollister  be in some apprehension whether this be a good disposition to a charity and be  apprehensive that it be void under the statute of mortmain Geo ch on the first  of August he make a second will recite that the defendant Cann have be for  many year concern for he in the way of his profession in various affair and  have discharge they with great integrity and to his entire satisfaction and  recite also that his cousin the defendant mrs Andrews have for about twenty  year serve he as his housekeeper with great fidelity he devise to the  defendant and their heir all his message c in Bristol to hold to the defendant  their heir and assign for ever in the nature of jointtenants and likewise give  several other estate in different county to these two defendant in  jointtenancy and give to the plaintiff who be his only child and heir at law  twenty guinea to buy mourning and strict enjoin her to submit to the  disposition he have thereby make of his estate she be handsome provide for by  his marriagesettlement on her mother and otherwise since and that she shall  not presume to contest the same it be make and publish by he on the most cool  and mature deliberation all his leasehold estate and personal estate not  before dispose of he give to the defendant their executor administrator and  assign and appoint they executor and executrix revoke all other will on the  that of August follow the testator die and some time after his death the  defendant admit they find in his closet a paper write subscribe by he and be  as follow rule request that be desire to be observe and follow touch the  execution of a certain will make by Laurence Hollister date the d day of  August the administration and power be whole leave to the management of the  worthy Mr Cann and mary Andrews their heir and assign for ever in the nature  of jointtenants it be never my think that my worthy friend William Cann Esq  shall have any trouble in this affair more than to assist my cousin mary  Andrews in manage atkins er p the same and atkins hope that through his great  goodness and charitable disposition he will be please to bring the whole  affair to it be desire issue and because I be not willingto encumber the say  worthy William Cann Esq I have write a full particular account of all matter  that be to be transact under the administration of my say will in the  direction that be separate give to the say mary Andrews which I hope and doubt  do but the say worthy William Cann Esq will accord to his undoubted generosity  and integrity see perform accord to the humble request of a true and real  friend and accord to your wont and well dispose charitable disposition towards  all man law Hollister Dundry August this paper be write by one William long  and subscribe by the testator mary Adlington only daughter and heir of the  testator file her bill against Mr Cann and mrs Andrews the that of may and  pray a discovery of the trust and of what they know to have be say or write by  Laurence Hollister or his order touch the application of his real and personal  estate and that the will of the saint of August may be declare null and void  and that she may be let into possession of the real estate and that they may  account to her likewise for the personal estate of her father the defendant to  so much of the bill as seek a discovery of any secret trust for charitable use  or any parole or other declaration of trust of the real and personal estate of  Laurence Hollister not make by he in write and not sign by he they plead that  he be seize in fee of those land and that by the will of the saint of August  he dispose of they absolute to they and their heir and further plead the act  of Ch ch for prevention of fraud and perjury by which all declaration or  creation of trust of any land shall be manifest by some write sign by the  party or by his last will or else shall be utter void and of none effect and  therefore the discovery of such parole declaration of trust as seek by the  bill be no way material to the plaintiff relief nor be defendant oblige to  answer to it and therefore plead the will and act in bar in answer to the  residue of the bill the defendant Andrews positive deny that such direction as  be allude to by the say write or any other direction be ever give by the say  testator to her touch any charitable use or trust in the bill mention or any  other trust whatsoever atkins they both likewise deny that they be ever name  or appoint in any write to their knowledge to have the management of any  charitable use as trustee or that the testator do signify to they in any kind  of write his design to settle his estate in trust for the benefit of any  charitable use or use on the that of July the plea come on to be argue before  Lord Hardwicke who order it to stand for a answer with liberty to except and  the benefit of theplea be save to the defendant till the hear of the cause  this cause stand in the paper the that of June and be hear soon after Mr  attorney general for the plaintiff that though the testator have take all the  care he can to evade the statute of mortmain yet the statute will not permit a  act to avoid it that end inconsuet to lead in mistrust and that the  introduction of the will and give the estate to the defendant in jointtenancy  be very extraordinary that the act do not require that the devise of land upon  a trust shall be such a one as be capable of be carry into execution that the  paper be to be take as part of his will that this be a trust and appear to be  so by proof and admission and clear that it be a declaration of trust though  it do not appear for what purpose that the law be for a general good ought to  be liberal expound by the stat of mortmain ch No manor land c nor sum of money  good c or any other personal estate whatsoever to be lie out in the purchase  of any land c shall be give grant c or any way change or encumber by any  person or person whatsoever in trust or for the benefit of any charitable use  whatsoever unless such gift conveyance appointment c be by deed indent seal  and deliver in the presence of two or more credible witness twelve calendar  month at least before the death of such donor or grantor include the day of  the execution and death and be enrol in the court of chancery within six  calendar month next after the execution thereof c that under the word in trust  for or the benefit of they may be admit to read parole proof to show it to be  la trust for a charity atkins er p atkins Mr Wilbraham for the defendant the  testator have a power to give the estate as he think proper so as his  disposition be consistent with the rule of law as well with regard to the  manner of give as the object of the gift if the gift be to the devisees for  their own benefit in point of law it be a good devise upon the face of the  will it appear to be so and prima fancy in every devise not only the legal but  the beneficial interest passes to deprive a devisee of this benefit it be  incumbent on the plaintiff to show that it be give upon a trust or that the  will be inconsistent with the rule of some positive la and that the devisee  take the legal interest in such estate not for his own but for the use of  another this must be do by show it to be a trust and that can be do but by  show a declaration of that trust in write and therefore the plaintiff have  recourse to the paper write and this be say to be a declaration of the trust  of the legal estate give by the will if this be a voluntary deed will a paper  even declare a trust be sufficient to take it from the grantee no certain if a  estate be give by a will can a paperwriting declare that the trust of the land  shall be to a remainder to b and take it clear from the devisee and give it to  another this will evade the intent of the statute of fraud and perjury vide  atk which be to prevent fraud in obtain will from person by obtain other  instrument or by forgery here if a man be conscious that another have leave  his estate to one or two person if a three shall get a declaration that the  devisees be trustee for himself or if such a paper shall be forge this will  take away the devise land from the devisee who have they by a solemn  instrument and translate the gift to another without any other solemnity but a  paper write bare sign but not attest the question be whether here be such a  declaration of a trust in write as the court can make any decree upon to wrest  the legal estate out of these devisees for the benefit of a three person and  the resolution of this question will depend on another atkins whether here be  ground sufficient for a court of equity to have declare the defendant trustee  for a charity for I will not contend but that if they be trustee for a charity  though a indefinite one that may be sufficient to enable the crown to apply  the gift this paper be not sufficient to determine upon that the testator mean  to give his estate at all in charity that it be too uncertain to find a  judgement upon and but conjectural at least whether he mean this will be not  clear for the date be different the paper refer to a will of the d of August  nor do it with certainty answer the description for the defendant be not  jointtenants of the whole part of the estate be give to Mr Cann sole it appear  likewise by these deed that the testator have a regard for mrs Andrews and a  design to provide for her Lord chancellor think there may be some resemblance  between this case and those upon the statute of superstitious use where non  constat that there be any such use on the face of the will themselves but a  secret trust for that purpose order this cause to stand over to search into  precedent and on the d of July the cause come on again when the counsel for  the plaintiff produce three precedent out of the court of exchequer first the  attorney general against Jones the that of James the second second the king  versus lady portington the that of William and mary salk and case in b b in  the time of William the three Cas three the attorney general against Lawson  Trinity term the three of William and mary to show that notwithstanding there  be not under a will a express devise to a superstitious use yet that a court  of equity will from suspicious circumstance as where a testator devise his  estate to a stranger and his heir without declare a trust admit parole  evidence to show the testator intention to give it to such a use the counsel  for the defendant insist that two out of the three case do not come up to the  present for they be not the case of will but upon a conveyance atkins er p  atkins the last have some resemblance because it be upon a will a devise to  lady portington and her heir without any trust the court declare it to be a  superstitious use and therefore the king shall order it to be apply to a  proper use so far as this decree be find upon parole evidence it differ from  the statute of fraud and perjury but it be material what ground they go upon  in admit such proof it be state in Mr sergeant salkelds report that it be hold  first that the statute of fraud do not bind the king but take place only  between party and party second that the king as head of the commonwealth be  oblige by the commonlaw and for that purpose entrust and empower to see that  nothing be do to the disherison of the crown or the propagation of a false  religion and to that end entitle to pray a discovery of a superstitious use  three this use be superstitious be mere void and for that reason the king can  have it yet however it be not so far void as that it shall result to the heir  and therefore the king shall order it to be apply to a proper use so that the  ground upon which the decree go upon there be the prerogative give to the king  by the first of Edward that ch there be three case where a statute shall bind  the king though he be not name first he be include in the that of Elizabeth  for restrain college lease under the general word body politic or corporate  second he shall not be exempt by construction of law out of the general word  of act make to suppress wrong three the general word of statute which tend to  perform the will of a founder or donor shall bind the king though not name see  Magdalen coll case   b the reason why a benefit be give to the king where  there be superstitious use be to prevent the growth and encouragement of a  false religion vide I Edward from this time down to the statute of fraud the  king may have have the benefit of parole evidence but as the king be not bind  by the stat of fraud and perjury for he be not name and relate only to party  and party the reason of the court of exchequer admit parole evidence be find  upon this rule atkins the present question be between a heir at law and a  devisee and there be no prerogative in this case neither be there any  particular privilege belong to a charity to exempt it out of the statute of  fraud that the statute of mortmain do not vest any thing in the crown or by a  devise to charity but operate only by annul the devise absolute that the  construction aim at by the plaintiff will be total destroy the statute of  fraud the great fence of our property if a paper which may be form after a  person have make his will shall be admit to be a declaration of trust only in  those person who have a absolute devise by the will without any trust the case  of superstitious use be very different from this superstitious use be mala see  and destructive to our constitution and government under the protestant  religion and therefore the law prohibit they but it be not so with charitable  use which have be always favour as in copyhold estate give by will to  charitable use surrender have be supply the true foundation of this statute of  mortmain be that there be enough of land get into the hand of corporation that  be indissoluble and that even now charity may be establish in the lifetime of  a person but shall not be do in his last moment that the judge have declare  superstitious use to be bad one which make this case differ material from they  and therefore be not at all affect by they that suppose this paper to have be  a write execute in the presence of three witness yet it be not such a  designation of a charity as will take this case out of the statute of fraud Mr  attorney general in his reply say there be nothing in the mortmain act which  confine it to a trust in write for it be to any person in trust or for the  benefit of any charitable use so that if the intention can be make appear  whether it be in write or not it be equal within this statute the point the  statute have in view be to prevent the disinherison of heir and if the  construction of the defendant counsel shall prevail it will be a mean of let  in a evasion upon this act atkins act of parliament of this kind be to be  construe liberal and favourable so as to suppress the mischief and advance the  remedy atkins er p that there be several expression in this paper which be not  reconcileable to any thing but a charity such as I hope and doubt not but the  say worthy William Cann will accord to his undoubted generosity and integrity  see perform accord to his wont and well dispose charitable disposition towards  all man Lord chancellor I have be under some doubt as to the determination of  this case because on the one hand great inconvenience may arise from mean be  find out to evade and elude the statute of mortmain and on the other hand it  may be a dangerous thing to determine this case to be a trust for I must break  in upon the statute of fraud by admit parole evidence to prove the testator  intend his estate for charitable use therefore to find out a medium be the  great difficulty as to the present case if the court can find a way of  determine it which will avoid the elude the statute of mortmain there be no  reason to induce the court to make a strain which may affect the statute of  fraud and perjury it be a terror and apprehension which the testator have of  this mortmain law which induce he mistake to revoke the first will from a  imagination that it be within that statute for if he have not revoke it that  will will certain have stand as it be make so long before his death but  however this ought not to have any particular influence n my determination of  the case there be three question first whether this be a case within the  statute of fraud and perjury second whether here be such a declaration of  trust as be require by that statute three if not a case within the statute of  fraud whether on the foot of parole proof here be sufficient evidence of a  trust for charity atkins I be of opinion this be a case within that statute  for otherwise I shall open a door to infinite inconvenience with regard to  this statute and which will considerable overbalance the mischief that can  arise by leave a loophole whereby to elude the statute of mortmain consider  that charitable use be within both the clause of the statute of fraud as well  within the clause of devise as the clause relate to he declaration of trust  attorney general v barn vern p W this have be determine that there must be a  declaration of trust and that there must be a will duly execute in order to  create a charitable use and even though such appointment have get the better  of the statute de good and copyhold estate yet that it be not a good  appointment to pass freehold land to a charitable use within this statute it  be determine by Lord Talbot in the case of the attorney general versus spillet  p W S c that the court can not set up a trust for a charity without a  declaration in write notwithstanding there be such circumstance in favour of  the charity that the testator can not mean any thing else and notwithstanding  the devisees there as well as here be jointtenants the cause be reheard before  I in Trinity term and I be of the same opinion and the decree be affirm atk S  c it have be object by Mr attorney general that there be word in the statute  of mortmain that go far than the statute of fraud and which be intend to take  in parole trust that no land c shall be charge or encumber to any person in  trust or for the benefit of any charitable use whatsoever Mr attorneygeneral  say this be a new law subject to the statute of fraud and perjury and that  this act make any disposition void for the benefit of a charitable use whether  in write or not but I be of opinion this law have not abrogate the statute of  fraud which be make for the public good ought Norman to place upon going to be  it be true the statute of fraud can govern the particular provision of that  statute but it must govern the construction of atkins subsequent act as under  the disable statute against papist they must be construe by the rule of law  and by what be lie down in precedent act if it shall be admit that the statute  of mortmain take all these case out of the statute of fraud and be intend to  introduce parole evidence it will do more atkins er p mischief by lie the  foundation for a great deal of perjury than it can possible do good in any  other respect whatsoever but as I say before this can be for it must be  construe conformable to the statute of fraud and perjury the second question  be whether there be in this case a proper declaration of trust and this depend  upon the construction on the paper write of the that of August call rule  request c there be a mistake in it as to the description of the will but I lie  no weight on this except there have be another will in be and therefore must  take it to refer to the will of the saint of August consider whether from the  nature of the paper it can be admit as a declaration of trust and I be of  opinion it can not for the reason give at the bar which be very proper one if  the testator have make a feoff to himself and his heir and leave such a paper  this will have be a good declaration of trust within the other clause of the  statute of fraud but this present case arise upon the clause of the statute of  fraud relate to a disposition of land by will here be a paper subsequent in  date to the will and therefore if it have any effect it will operate as a  revocation of the will with regard to the beneficial interest in the estate  but it be not execute with the proper solemnities for as to freehold land a  man can no more dispose of a trust or equitable interest than he can of the  legal estate in those land under the statute of fraud without these  solemnities vide Wagstaff v Wagstaff p W duke of Marlborough v Lord Godolphin  Ves Jones v clough Ves Duff v Dalzell bro Charles Rep casson v dade cite bro  Charles Rep neither can he revoke a trust or equitable interest in freehold  land any more than he can devise it without these solemnities atkins if by  this paper he have even name another person for his trustee it will not have  set aside the will unless the devisee have by fraud prevail upon the testator  to givehim the estate absolute under the will and tell the testator that after  the will be execute such a paper will be a sufficient declaration of the trust  for a charity but upon the foot of a plain devise and without any mixture of  mistake or fraud it be not a good declaration of a trust therefore I be of  opinion this paper be not within the meaning of the statute of fraud nor do it  amount to such a declaration of a trust as be there require but three suppose  it be not within the statute of fraud then whether there be sufficient  foundation consider the uncertainty of the proof in this case to decree this  to be a trust for a charity now as to this the case to be sure be more  doubtful but yet I be not satisfy to decree it upon this foundation I do agree  that there do appear to be a inclination in the testator that some part of his  estate shall go to charitable use note it seem that where a testator show a  intention to create a trust very slight expression be sufficient to effectuate  that purpose if they be make in the will see Harding v Glyn atk to be sure he  be in apprehension of the statute of mortmain by the evidence which have be  give of his desire the defendant Cann to lend he the act to read it over  careful and that this paper be a circumstantial evidence to show his intention  of give something to charity for I do agree that these expression Mr can wont  and well dispose charitable disposition c must otherwise appear absurd but how  be it clear to I that the testator Mr Hollister intend the whole for charity  or how much if he mean only part of his estate shall go in that manner for  upon the evidence it be manifest he do not intend the whole shall go to  charity the defendant witness prove that the testator have a great regard for  Mr Cann and mrs Andrews and that he declare he have give they great part of  his estate and that he himself tell mrs Andrews just before his death he have  make his will and do well for her and that she reply I have a great regard for  your relation than my own to which he answer do not give away so much as to  leave too little for yourself atkins but I do not rest it on the defendant  proof for the plaintiff evidence in atkins er p some measure correspond with  it for her witness say that Mr Hollister design the great part of his estate  to charitable use which imply they do not think he intend the whole as to the  charitable use provide it be sufficient prove and the statute of fraud be out  of the way how be I to discover how much he intend to the devisees and how  much to charity or how shall I be able to draw the line between the devisees  and the charity he can not under this new will by reason of the mortmain act  devise it direct and he do not know that in point of law the old one be good  what rule then have a court of equity to go by to determine how much of the  will be void and how much of the testator estate shall go to the plaintiff  beside very little inconvenience can arise from my determination for this case  can be liable to great objection as a general case because the instance of  trustee abuse the trust of charity be so frequent that they be a sufficient  warning to reasonable man not to leave their estate under such uncertainty as  to put they absolute under a person power and then trust to his generosity for  the dispose of they in charity the next consideration be upon the case that  have be cite of superstitious use and the construction of the law upon those  statute now the court of exchequer in lady Portingtons case hold that the  statute of fraud do not extend to the king and enter into parole proof upon  this foundation but as I be of opinion the present case be clear within the  statute of fraud it make a material difference and take they from be precedent  here and for this reason I be not oblige to determine whether the judgement of  the exchequer in lady Portingtons case be right or not in Mr sergeant salkelds  report of this case it be a traverse to a inquisition post death where the  jury find for the king but subject to the opinion of the court whether the  devise can be aver to be a trust to a superstitious use and the court of king  bench hold it can not and that both from the statute of fraud and from the  nature of the thing atkins but after this on the that of may it come before  the court of exchequer upon a information for a discovery and a application of  the devise to a use true charitable for the king in the court of exchequer may  proceed two way either on the Latin side or on the English by way of  information they hold that the statute of fraud do not bind the king but take  place only between party and party I own I be doubtful as to this doctrine  that the king be not bind by a statute unless he be express name there be a  case however where it have be determine that he be not and that be upon the  sixteenth section of the statute of fraud whereby it be enact that no writ of  become facias or other writ of execution shall bind the property of the good  against who such writ of execution be sue forth but from the time that such  writ shall be deliver to the sheriff c to be execute and for the better  manifestation of the time such sheriff c shall upon the receipt of any such  writ endorse upon the back thereof the day of the month or year whereon he or  they receive the same now the king notwithstanding this clause in the case of  extent and execution be not bind by the testae as where in a long vacation the  testae be date as of the last day of the precedent term it shall prevail  against intermediate act between the king debtor and other person though the  practice be in extent grant by a baron to mark the day of grant they and they  do not bind before that day as to what be mention by Mr attorney general on  the statute of usury I have look into it and likewise into the statute of  queen and which be pen in the same word and where parole evidence have be  admit to show usurious interest take by a mortgagee though there be none upon  the face of the deed itself be upon this clause and saint c sect l all bind  and assurance for the payment of any principal or money to be lend upon usury  whereupon there shall be reserve or take above five in the hundred shall be  utter void suppose a mortgage to be draw only for five per cent and the  mortgagee take six it will be void upon the word take vide fisher v Beasley  dougl in the present case it be extreme improper for the court to atkins make  a decree for the plaintiff because the court can decree the devise to be void  since the make atkins er p the statute of mortmain any more than they can  devise it to be a trust for the heir at law before the statute but I be not  under a necessity of interfere in this because the plaintiff have a remedy at  law vide do on they of Philips v Aldridge durn east under the provision of the  statute of mortmain sect that all gift grant conveyance c of any land c or of  any stock money c which shall be make in any other form than by this act be  direct shall be absolute and to all intent and purpose void so that the devise  of the legal estate be make void and not mere the trust for the charitable use  the trust then be make void infect the legal estate and make void the whole  devise and then the land descend and be exact parallel with the stat of W  relate to papist and this point on the lastmentioned statute come in question  before Lord king in the case of Carrick versus errington p W where it be hold  that if all the person who be to take the trust be papist it will make the  legal estate void likewise there be another case of Marwood versus Dorwell  which come first before the court of common plea and afterward on a writ of  error to the court of king bench while I be chief justice and the whole court  be unanimous of the same opinion the consequence of this be that the plaintiff  may bring a ejectment if she please and if so I will retain the bill for a  twelvemonth to give her a opportunity of try it at law for the plaintiff be  undoubted a hard case as she be a only child and heir at law but this be all  the relief I can give her the plaintiff not care to be at the expense of a  trial at law but acquiesce under Lord chancellor opinion the bill be dismiss  without cost