the master for the time being of the said school. And subject to the trusts hereinbefore declared of the said sum of 2001., and the interest, dividends, and annual produce of the accumulations thereof, I do hereby declare and direct that the same shall be part of my personal estate and be disposed of accordingly.

The testatrix died in December, 1833. In 1836 a committee was formed, and subscriptions raised, for building the church, and in October, 1837, a piece of land which had been purchased by the committee for the site of the intended church, was duly conveyed to them by bargain and sale enrolled in the Court of Chancery. The church was built on this land in the year 1837, and consecrated in June, 1838.

The subscriptions which had been received by the committee, having been in fact raised for the endowment as well as the building of the church, but the whole having been expended for the building, on the faith that the *bequest of the testatrix would be applied to reimburse the endowment fund, a petition was now presented by the executors in this cause, (which was instituted for administering the will of the testatrix), praying for liberty to apply the fund in which the 500l. was invested, in discharge of the monies so borrowed for building, and that the funds in which the 2001. was invested might be applied to the purposes directed by the will.

The only question was, whether the bequests of 500l. and 2001. were good within the Mortmain Act (1).

Mr. Purvis for the petition.

Mr. Sutton Sharpe for some of the defendants.

Mr. Wray for others of the defendants.

ALDERSON, B.:

The only question in this case is, whether these bequests are void by reason of the Statute of Mortmain.

It seems agreed, that, if a testator give money to trustees to build a church, or school, or almshouse, the natural meaning of the word "build," includes not merely the expending the money in making the erection itself, but the purchasing of land on which such erection is to be made; and that the doctrine of Lord

(1) 9 Geo. II. c. 36.

HARDWICKE, that, if the trustees could obtain the land by gift from a third person, the bequest might be good, cannot be supported. Lord ELDON, in The Attorney-General v. Parsons (1), expressly so rules, and says, that, if a testator directs a school to be built, and does not himself advert by words in his will to a purpose that the land is to be acquired otherwise than by purchase, the inference is, that he meant it to be acquired by purchase, and that the bequest is void. By "purchase," here, Lord ELDON clearly means "purchase out of the fund bequeathed for building." The same rule was, in substance, laid down by the MASTER OF THE ROLLS in The Attorney-General v. Davies (2), where the bequest was to a person or body corporate, in order to induce them to give the land; that is treated as, in truth, a purchase of the land from them; and the bequest was held void. But, I apprehend, where a testator gives money to be laid out on land already purchased by others for such building or on land to be given by a third person for that purpose, and the trustees have only authority to lay out the money in building on such land so procured, and cannot employ it in procuring such land, the bequest, if such an object appear clearly from the language used in the testator's will, is good. For then the word "build" is not to be taken in its extended sense as including the purchase of the land, but is by the language of the testator applied specially to the mere cost of erecting, as contradistinguished from procuring the land on which such erection is to take place.

This is, I think, the result of all the cases on this point, and the true reading of the Statute of Mortmain.

Now, let us apply this rule to the facts of the present case: There is a bequest of 500l. to trustees; and it states the condition to be, that, if within seven years, the inhabitants of Abram shall erect, build, and finish a church or chapel, and procure the same to be consecrated, the trustees, as they shall think fit, shall appropriate the money with its intermediate interest for and towards the defraying the costs and expenses of building and erecting such church or chapel.

Now, here, the church is to be finished and consecrated *before any part of the money is to be laid out; the land must, therefore, have been purchased, and must have been finally dedicated to the church; or otherwise the church would not be consecrated; and, thereupon, the trustees are to apply, not at all events and generally, (1) 7 R. R. 22 (8 Ves. 186). (2) 7 R. R. 295 (9 Ves. 535).

but as they shall think fit, the money bequeathed for and towards the expenses of building and erecting the church. I think this does not devote the money to the purchase of the land, but gives the trustees an option of contributing towards the assistance of the inhabitants in the erecting a church on land, which they, the inhabitants, at their own costs, were previously to procure. And if the trustees have any option to do one of two things, and that one be legal, the cases seem to establish that they may do so, and that such a bequest would not be void. As, where they are to vest the money either in land or in the funds, the bequest is good.

I should, therefore, probably have come to the conclusion that this was a valid bequest, and that the second bequest also was good, even if it were dependent on the first. But I think the second bequest is not dependent on the first, and may well stand, even if the first failed.

Independently of the above considerations, however, I apprehend that the statute 43 Geo. III. c. 108, s. 1, makes the first bequest valid. For here the bequest is for a church, amounts only to 5007., and the testatrix survived the making of the will more than three months.

The two bequests must be declared good, and the costs must fall on the personal estate of the testatrix.

DIXON

v.

BUTLER.

Order accordingly.

REEVES v. CRESWICK.

(3 Y. & C. 715-716.)

Principles on which the Court will direct the apportionment of the expenses of the renewal of leases for lives as between tenant for life and remaindermen.

THE testatrix in this cause devised certain freehold and copyhold property, held on two leases for lives under the Dean and Chapter of the Cathedral Church at Wells, to the plaintiffs, in trust for the defendant Eleanor Jane Creswick, the wife of the defendant George Creswick, for her life, with remainder to her children absolutely.

The testatrix was herself one of the cestui que vies in each of the leases. Upon her decease there remained only one cestui que vie surviving in each lease, such cestui que vies being much more

1889. Dec. 29.

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REEVES advanced in life than Eleanor Jane Creswick. It became necessary, CRESWICK. therefore, in order to give the children of Mrs. Creswick any chance of deriving benefit from the limitations in their favour, that the leases in question should be renewed. There being, however, no funds provided for this purpose by the testator's will (1), the only means of meeting the expenses of the renewal was by raising the required amount on mortgage of the renewed leases themselves. The children of Mrs. Creswick being all infants, the bill was consequently filed by the trustees to obtain the sanction of the Court to a mortgage of the property, and its direction as to the apportionments of the charges between the tenant for life and the persons entitled in remainder.

[716]

The cause coming on for further directions upon the Master's report, the scheme of raising the required sum upon mortgage of the property was approved of, and it being declared that the charge ought to be apportioned between the tenant for life and the individuals entitled in remainder, in proportion to the benefits they would respectively derive from the renewal of the leases, the following arrangement, which had been submitted to be approved by the Master, was directed to be carried into effect.

The period of enjoyment of the property by the tenant for life, under each of the old leases, being the joint duration of her own life and that of the then surviving cestui que vie named in such lease, and the period of her enjoyment of the property under each corresponding renewed lease being in like manner the joint duration of her life and those of the new cestui que vies, or the longest liver of them-the difference between the values of the estates for these two periods, gave the benefit derived by the tenant for life from the renewals in question. The residue of the increased value. of the property necessarily expressed the benefit derived from the renewals by Mrs. Creswick's children. Calculations were accordingly made by the actuary of an insurance office, upon the above principles, of the benefit derived by the respective parties from the renewal of each lease; and the fines and expenses of renewal being divided in the proportions so ascertained, the total amount which (in conformity with the declaration before mentioned) thereupon

(1) The will, however, authorized the trustees to raise money for this purpose out of the rents, issues and profits of the premises" comprised in

66

the renewed lease "or by mortgage thereof: " see Lewin on Trusts, 10th p. 428.-O. A. S.

ed.,

appeared to fall to the share of the tenant for life, was directed to be insured upon her own life, for the purpose of providing, upon her decease, for the payment of a corresponding part of the principal of the mortgage-debt to be raised upon the property. The policy of insurance was ordered to be assigned to the mortgagee, and directions were given for paying the premiums on the policy, and for keeping down the interest on the entire mortgage-debt out of the annual rents and profits of the estates.

The costs of the suit were also apportioned between the parties, in proportion to the benefits so calculated to be derived by them from the renewals.

Mr. Thomas Turner for the plaintiffs.

Mr. Messiter for the defendants.

ALDERSON, B., adjudicante.

REEVES

v.

CRESWICK.

IN THE COURT OF EXCHEQUER.

LANCASTER v. WALSH (1).

(4 Meeson & Welsby, 16-24; S. C. 1 H. & H. 258; 7 L. J. (N. S.) Ex. 209.)

A party who had been robbed of bank notes put forth a hand-bill, wherein it was stated, that "whosoever would give information whereby the same might be traced, should, on conviction of the parties, receive a reward of 207.:" Held, that the only person entitled to the reward was he who first gave information by which the notes were traced to the robbers, so as to ensure their conviction: and that it was not necessary that such information should be communicated to the party robbed, if it was given to a person authorized to receive it, and to act upon it in the apprehension of the offenders; as to a constable.

ASSUMPSIT. The first count of the declaration stated, that the defendant, on the 29th July, 1835, printed and published a certain advertisement, by which it was stated, that on Saturday night then last, two Bank of England notes, one for 50l., dated June 30th, and one for 301., dated June 18th, and other monies, had been and were stolen from the person of the defendant, therein described of Halifax, while on his way home; and that the defendant did thereby promise, that whoever would give information by which the same

(1) Cited in judgment, Bent v. The Wakefield, &c. Bank (1875) 4 C. P. D. 1, 4.-R. C.

1838.

Exch. of
Pleas.

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