without a declaration in writing, notwithstanding there were such circumstances in favour of the charity, that the testator could not mean any thing else. That he was of opinion, that the statute of *[359] mortmain had not abrogated the statute of frauds, which *being made for the public good, ought normam imponere futuris. That it was true the statute of frauds could not govern the particular provisions of that statute, but it must govern the construction of subsequent acts, which must be construed by the rules of law, and by what is laid down in precedent acts. If it should be admitted, that the statute of mortmain took all those cases out of the statute of frauds, and was intended to introduce parol evidence, it would do more mischief by laying the foundation of a great deal of perjury, than it could possibly do good in any other respect whatsoever. It ought, therefore, to be construed conformably to the statute of frauds and perjuries."†

Terms attendant upon

the inheritance are within the statute.

Terms of years will passt by a will unattested, but terms attendant on the inheritance, are, as to the equitable interest in them, within the statute, though the legal estate is exempt from its operation. The case of Whitechurch v. Whitechurch,(4) will explain this point. Edward Whitechurch took a mortgage of Batcomb Lodge, from one Bisse, for 500 years, to commence from the making, for securing the sum of 2007. and interest, and afterwards took another security of the same lands from Bisse, the mortgagor, for 1000 years, in the name of another person, but in trust for himself, to commence also from the making. After this, Edward Whitechurch purchased the inheritance of the premises *[360] in his own name, and having no wife or issue male, *made his will all of his own hand-writing, whereby he devised the premises to his nephew, being the son of his younger brother, Joseph

(h) 2 P. Wms. 236.

† So that a declaration of a trust of real estate for a charity, must now be in writing, and an appointment for such object, if it is not to operate till after the death of the party, and respects real property, must be attested by three witnesses according to the statute 29 Car. 2, although the statute 9 Geo. 2, prescribes only two; for such deed of appointment is testamentary, and regards land, and that is enough to bring it within the statute, whatever may be its form.

But they cannot be created but by a will attested, because the creation of a term affects the real estate.

Whitechurch, for his life, remainder to his son, Edward Whitechurch, and to the heirs male of his body forever, and made his brother, Joseph Whitechurch, his executor and residuary legatee.

It happened that this will, (though intended to be perfected as such) by reason of the testator's sudden death, had neither a date or name subscribed thereto, nor was the same attested, but the executor proved the same in the spiritual court, and assented to the devise to the nephew: whereupon the elder brother's daughter, who was heir to the testator, brought the bill, in order to compel the executor and the devisee to assign over the term to her.

It was objected for the defendants, that the executor had assented to the devise, and that the will, though not attested by three witnesses, was, however, good at law to pass this term of 500 years, which was a subsisting term, and not merged in the inheritance, by reason of the intermediate term, and which intermediate term operated as a grant of the reversion, and not as a grant of a future interest,(i) (for it was admitted, that a future interest would not prevent a merger) but this grant of 1000 years, being to commence from the making, did pass the reversion for 1000 years; which was acceded to by the court.

Then if this will would pass the term at law, and was agreeable to the intention of the party, it was said to be very hard that equity should interpose in disappointment of the will, especially when it was in favour of so near a relation as a nephew of the testator, and one of his own name, and all this for the sake of one not more nearly related; of one who, on her marriage, would probably change her name. It was furthermore added, that in all cases between volunteers, (as the heir and devisee were here) he that had the law on his side used to prevail.

*But it was decreed by the Master of the Rolls, that as this was a term which would have attended the inheritance, and in equity have gone to the heir and not to the executor, in which respect, it was to be considered as part of the inheritance, so the will which was not attested by three witnesses, as the law required it to be when land was to pass, should not carry this term : that though it was true, such a will as in the present case would be

(i) Vide supra, 2d part of Chap. 4.

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sufficient to pass a term in gross, yet it should not pass a trust of a term attendant on an inheritance. That a will not attested as the statute of frauds requires, should not pass any estate of which the heir, as heir, would otherwise have had the benefit. That if the devisee of the land had brought a bill against the executor and heir, to have compelled the executor to consent to this devise, a court of equity would not have decreed it for the devisee; and if so, the voluntary act of the executor's consenting would not alter the case, for at that rate it would be in the power of the executor to make it a good or a void devise, just as he should think proper. Besides, the court observed, that it was the intention of the testator in the present case, not to pass the term only, but also to convey the inheritance which was expressly disposed of by the will, to the nephew for life, remainder to his first and other sons in tail. Though as to this, it was said to be extremely hard, that because quite so much as was intended could not pass, therefore, the devisee should be deprived of that which might lawfully pass, and which was a less estate than was intended him, or because all could not pass, therefore nothing should. However, for the above reasons, the court decreed the devisee and executor to join in assigning the term to the plaintiff, the testator's heir at law, but no costs on either side; this decree was afterwards affirmed on an appeal by the Lords Commissioners, Gilbert and Raymond.

When this cause was reconsidered on the appeal before the Lords Commissioners, Gilbert and Raymond,(k) Gilbert, Baron, was of opinion, that this was a term attending the inheritance, *and to protect the same from intermediate incumbrances, and that an unmerged term in the same person is in him in nature. of a trust to attend the inheritance, and that it would be very dangerous to all the inheritances in England, if unmerged terms should be taken to be terms in gross in the owners of the inheritances, and pass as such. Now, in the principal case, if this should be construed as a term in gross, then it was such a chattel interest as might pass by the will, though all the solemnities required by the statute were not observed; but if it was a term annexed unto, and attending the inheritance, it could not pass by this will in any other manner than the inheritance would pass. That it had been allowed at the bar, that the term for two thou

(k) 9 Mod. 127.

sand years was annexed to the inheritance, but it was said, that the term for five hundred years was not; but no reason was given why there should be such a difference between these two terms, that one should, and the other should not attend the inheritance and certainly it could never be said with any colour of reason, that, where a mortgagee of a term of years purchased the inheritance, that such term, when in himself and unmerged, should go and descend in a course different from the inheritance; for it was the constant and uniform construction in that court, that such a term shall be annexed unto, and protect the inheritance, and attend the same; and it would be a dangerous construction in equity to make the inheritance and the term separate and distinct estates in one person.(7)

But Lord Commissioner Raymond differed from Baron Gilbert, in the view which he took of this doctrine. He was of opi. nion, that where a term comes to an executor, by implication, as a chattel interest, or to a devisee by a general devise of all his chattels ; or where it vests in an administrator, generally, without making any will; in such cases, the heir at law would be competent to apply to this court to have the term assigned to another, to attend and protect the inheritance; but that, since it was agreed on all hands that the term passed at law, it was a question, whether that court could take it from him to whom it was devised in favour of the heir at law, who was a volunteer as well as the devisee?

That it was true, where a term was expressly limited to attend the inheritance, there, though the testator likewise expressly devised it to another, it would not pass; but where it attended the inheritance only by construction or operation of law, or in an equitable notion, as a term brought in and assigned by creditors, or terms raised for children's portions, or for other particular purposes; there, if the testator expressly devised such terms, they would pass. For where a man had a term for years, which by intendment of law only attended the inheritance, certainly he had a power to sever such a term from the inheritance; and if he should assign it to one man, and mortgage the inheritance to another, in such case the term should not attend the inheritance, put it became a term in gross; and why should not a man have

(/) Et vide Villiers v. Villiers, 2 Atk. 71.

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Comments

down by Ld.

Commissi. oner Raym. in Whitechurch v. Whitechurch.

the like, power to do the same thing by will, if he thought fit? But that as in that will there was no apparent intention, that the testator designed to pass this term as a separate interest from the inheritance, though there were sufficient words to pass it in general, it was to be considered, whether such general words should, after the death of the testator, sever that term from the inheritance, which attended and protected it in notion of equity, before such devise was made.

The distinctions taken by Lord Commissioner Raymond may on the doc- be more readily understood, by being stated as follows: a term trine laid of years may have become attendant upon the inheritance after all the express purposes of its creation are satisfied, by consequence and operation of law, or, after such satisfaction, it may have expressly received this ulterior destination by actual assignment for this purpose. If a term be in the predicament first above supposed, and a person, having in himself such term unmerged, by reason of an intervening reversionary term outstanding, or by reason of the legal estate in the inheritance being in another for his benefit, expressly devises the term by a will capable only of passing chattel interest, the term will be severed from * [364] its accidental connexion with the freehold, *and will go to the devisee as a beneficial interest, or, in other words, will pass in equity as well as at law. But if it be not so expressly devised, the heir at law will be entitled beneficially to the term for the protection of the inheritance, or, in other words, the equity in the term will descend as a part of the inheritance for want of a sufficient execution of the will to pass freehold estates.

But supposing such satisfied term to have once received an express destination to attend upon the inheritance, then it seemed to the Lord Commissioner to be immaterial whether it was expressly, or by name devised by the testator, or included under a general devise of his chattels, or suffered to devolve to the execu tor or administrator; it being that judge's opinion, that where such express limitation had taken place, it would not pass by> a will unattested, though the testator expressly devised it to another.

The whole of this doctrine of the Lord Commissioner, who: delivered his opinion to the effect last above-mentioned, turned upon a distinction between a term assigned upon an express declaration of trust, to attend the inheritance, and a term construc