boson v Statham Nov and see Lomax v Ripley Sm g Wallgrave v Tebbs king I  devise by will attest by three witness to a b and c and the heir of the  survivor the bill state that it be upon a secret trust for a charity declare  by a instrument execute at the same time as the will and attest by two witness  only which be admit by the answer hold that the devise be void under the  statute of mortmain S c Cox Amb ms Thomas Davill be seize and possess of a  considerable real and personal estate by his will date that July devise all  his real estate to Robert Dawson the defendant Statham and John Harris to hold  to they and the heir of the survivor of they for ever subject to a annuity to  one Hester good and also to the payment of the sum of pound to John boson his  heir at law to be pay one month after his decease and his will be that his  heir at law upon receipt thereof shall release and discharge all his message  and land so give as aforesaid unto the say trustee and to the heir of the  survivor of they and all his personal estate he bequeathe to the say Robert  Dawson who he make his executor Eden this bill which be bring by the heir at  law and the personal representative state the above will and that the former  be ignorant of his right execute a release that it have be since discover that  the devise and bequest in the say will be not real intend for the benefit of  the devisees and legatee but be in trust for a charity void by the statute of  mortmain that the testator by a instrument bear even date with his will and  attest by two witness only after take notice of the statute of mortmain  request his executor to lie out the surplus of his personal estate in the  purchase of house and land for erect a schoolhouse in the parish of Hinckley  and also request his trustee to settle his real estate to the same use with  power to choose other trustee c the bill charge that such disposition be void  and pray that the will may be set aside and also the release as obtain by  fraud the defendant Statham the survive trustee by his answer admit the  instrument as set forth in the bill and submit the construction and effect of  it and of the intention of the testator as express therein to the judgement of  the court that he be advice and submit to the consideration of the court that  as the say will be duly execute and attest so as to pass real estate of  inheritance and as the say estate and premise be absolute devise without any  charitable use or trust appear on the say will either express or imply the say  real estate be well and effectual devise to they and that the defendant now be  as survive devisee entitle to the say real estate to hold to he and his heir  for ever by virtue of the say will but he no where state that the trustee be  to take any beneficial interest to themselves Eden the solicitorgeneral Mr  jewel and Mr Bicknell for the plaintiff the question be whether this be not a  result trust for the benefit of the heir at law and next of kin there be no  doubt but that a paper write be a sufficient declaration of trust of personal  estate but the great question be as to the validity of this instrument to  control the real estate be only attest by two witness it must be admit that if  this declaration be a declaration of a legal trust it will be void but the  policy of the law which endeavour to prevent fraud as well in law as in  equitatem by evasion of the statute of mortmain will receive this instrument  as evidence of the secret trust and in this respect the court will act with  the same strictness that it do in the case on the popish act in Unitt v  Bartlett that June on a bill to have a discovery of a trust for a papist a  demurrer because disable himself be overrule and in panton v Lorraine that may  before your lordship defendant be charge to be a trustee for a papist a issue  be direct so also in case of superstitious use in the attorneygeneral v Jones  saint June James there be a conveyance of land to erect a chapel the bill  charge that it be intend for a masshouse and a trial be direct which find it  so the court decree for the crown so also in the other case cite in the  argument upon Adlington v Cann in Edward v pike Eden your lordship be of  opinion that the trustee take the estate on a promise declare the devise void  Eden er p the attorneygeneral and Mr Wilbraham for the defendant the question  be whether this instrument infect the Eden will that give this estate to the  defendant whether it be evidence of the intention or not if it be testamentary  there be a end of it for the devise can neither be control nor revoke except  with the formality require by the statute of fraud Wagstaff v Wagstaff p W  attorneygeneral v barn vern and Lord Hardwicke think in Adlington v Cann atk  that the break into the statute of fraud be a much great mischief than evade  the statute of mortmain Even suppose the testator mean a trust for a charity  yet it do not appear that the trustee mean to execute it there be a appearance  perhaps of a attempt to evade the act and the alarm it excite be considerable  but the liberty of this country must have its full force where the law have  not positive restrain it thus all the old statute of mortmain be evade  clandestine marriage till the late act be in daily practice and be even now  not complete prohibit game though always illegal have never be effectual stop  the statute of mortmain extend to such trust only as can be declare in a court  of equity and not to honorary trust which depend mere on the conscience good  man if these be find a evil there must be a new appeal to the legislature the  trust in Adlington v Cann be as complete as it be here but Lord Hardwicke find  himself compel to dismiss the bill and if there be no trust the devise be  absolute and parole evidence can be admit to raise a equity in a will brown v  Selwin for the Lord keeper 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 Eden 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 hear to the subject for my part I will support the law as far as I  can without shake thing which be establish note the order in which these  statute be enact be as follow Henry c great Charta Edward saint de religious  devotee Edward saint c Westminster Edward c because buyer Edward saint of  amortizing land Edward saint Richard c Henry c S will c S enable the crown to  licence alienation in mortmain Geo c mortmain Act see a concise history of  mortmain Bl Com and duke be charitable use by Bridgman 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 I will always support what I have already  lie down on former occasion no one to be able to make per sidelong quod non to  be able to make per straight line Eden 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 only can be take as a honorary trust and as such be not within  the statute of mortmain this be as much as to say that be a fraud against both  act it be not within either second that it will be more Eden inconvenient to  let in fraud and perjury by 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 the statute of fraud have not be agitate except in the case of  Adlington v Cann 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 Cann atk 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 p W affirm by Lord Hardwicke atk be cite to show  that Eden er p 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 note Lord Eldon have point out the ground of Lord hardwicke  determination there be nothing in the will attach a trust if the testator  afterward by a unattested paper express his own intention not communicate say  the purpose be to devote the estate to a charitable purpose the devisee may  object he have take under a will well execute and the subsequent paper be not  well execute Ves Eden in Newton v Pelham August on a 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 Cann 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 of 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 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 Eden the benefit of a charity and be as such void by the late  statute of mortmain so far as they relate to such charity c Reg lib a fol note  this subject have be late much discuss and it appear from the case that the  doctrine be now establish as follow if the will contain a sufficient  denotation of the intention that the devisees shall be trustee a circumstance  which fail in Adlington v Cann and the heir claim upon the ground that the  trust be ineffectual dispose of allege by his bill a trust against the policy  of the law such bill must be answer and if it appear by the admission of the  answer that there be a secret trust for a charity there will be a result trust  for the heir Edward v pike ante Muckleston v brown Ves Martin v Hutton and  bishop v Talbot cit ib Stickland v Aldridge Ves pain v hall Ves