James Jeffries and Others, - Appellants; John Biddle Alexander and Others, and Attorney General, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 30 July 1860 |
| Date | 30 July 1860 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 562
House of Lords
Mews' Dig. iii. 410, 425, 426; v. 350; xii. 209; xv. 243. S.C. 31 L.J. Ch. 9; 7 Jur. N.S. 221; 2 L.T. 748; and, below, sub nom. Alexander v. Brame, 1 Jur. N.S. 1032; 3 W.R. 642; 7 De G. M. and G. 525; 19 Beav. 436. On point as to Mortmain Act, considered in In re Robson; Emley v. Davidson, 1881, 19 Ch. D. 156; followed in Fox v. Lownds, 1875, L.R. 19 Eq. 456; and cf. Brook v. Badley, 1867, L.R. 4 Eq. 110. On point as to nature of indenture, see Coleman v. Llanelly Ry., etc., Co., 1867, 17 L.T. 87.
Deed - Will - Charity - Personalty - 9 Geo. 2, c. 36 - Real Object of Mortmain Act.
JAMES JEFFRIES and Others,-Appellants; JOHN BIDDLE ALEXANDER and ò^ers, and THE ATTORNEY - GENERAL,-Respondents [March 22, 23; May 10; July 6, 30, I860]. [Mews' Dig. iii. 410, 425, 426; v. 350; xii. 209; xv. 243. S.C. 31 L.J. Ch. 9; 7 Jur. N.S. 221; 2 L.T. 748; and, below, sub nom. Alexander v. Brame, 1 Jur. N.S. 1032; 3 W.R. 642; 7 De G. M. and G. 525; 19 Beav. 436. On point as to Mortmain Act, considered in In re Eobson; Emley v. Davidson, 1881, 19 Ch. D. 156 ; followed in Fox v. Lownds, 1875, L.R. 19 Eq. 456; and cf. Brook v. Badley, 1867, L.R. 4 Eq. 110. On point as to nature of indenture, see Coleman v. Llanelly Ey., etc., Co., 1867, 17 L.T. 87.] Deed-Will-Charity-Personalty-9 Geo. 2, c. 36-Real Object of Mortmain Act. A. being possessed of some pure personalty, but of considerable property in mortgages, executed some years before his death an indenture, by which, declaring a wish to found certain charities, he covenanted to pay, or that if he did not pay during his lifetime, his executors should, within twelve months after his death, subject to his debts and legacies, pay to certain persons therein named the sum of £60,000, to be invested in their names on the trusts thereby declared; the trusts were charitable trusts. This deed was never enrolled in Chancery. On the same day he made a will giving certain legacies, and appointing executors, most of whom were the persons named in the deed. These papers were never communicated by him to anybody. Just before his death he caused [595] the papers to be produced from his drawers, and handed them to the persons attending his death-bed. They were tied up with a memorandum which declared that they had been prepared in that form, under advice, to save the legacy duties, and in order that if probate duty was paid in the first instance it might be got back again in consequence of the covenant creating a debt to be paid out of the assets: Held, that the indenture was a deed and not a testamentary paper: But, 562 JEFFRIES V. ALEXANDER [i860] VIII H.L.C., B96 ' Held also, that so far as realty was to be affected it was void within the Statute of Mortmain, 9 Geo. 2, c. 36. Diss. Lords Cranworth and Wensleydale. Observations as to the object of the Statute of Mortmain. The costs were ordered to come out of the estate. The Attorney-General v. Jones (3 Price, 368) questioned. The Appellants were three of the next of kin of Benjamin Brame, late of Ipswich, deceased, and the questions on this Appeal were whether a certain indenture, dated the 12th of August 1846, and hereinafter set forth, was not altogether void, and whether the sum of £60,000 thereby covenanted to be paid to the Respondents upon trust for certain charitable uses, was payable out of such parts of the estate and effects of the said Benjamin Brame as could not be lawfully devised or bequeathed for charitable purposes. On the 12th August 1846, Benjamin Brame, who was seised of some real estate, and possessed of personal estate of considerable value, consisting in great part of money secured upon land, executed two indentures, and his last will and testament, all dated on that day. One of the two indentures, called " The Charity Foundation Deed," was expressed to be made between Benjamin Brame of the one part, and the Respondents of the other part; but it was executed only by him, and not by them. It was (so far as material) in the words and figures following: [596] " This indenture, made the 12th day of August, a.d. 1846, between Benjamin Brame, of Ipswich, in the county of Suffolk, gentleman, of the one part, and William Henry Alexander, of Ipswich, aforesaid, banker, Frederick Alexander, of the same place, banker, and George Alexander, of the same place, banker, of the other part. Whereas the said Benjamin Brame is desirous of founding the three charities hereinafter mentioned, for certain poor belonging to, and residing in, the several parishes in the borough of Ipswich, in the county of Suffolk, and for this purpose desires to settle and assure a part of his personal estate upon the trusts and for the purposes hereinafter expressed or declared and contained, of and concerning the same: Now this indenture witnesseth, that, in pursuance of the said desire of the said Benjamin Brame in. this behalf, he for himself, etc., doth by these presents covenant, promise, and agree, with and to the said William Henry Alexander, Frederick Alexander, and George Alexander, jointly and severally, etc., that he, Brame, shall and will in his lifetime, and within the space of twelve calendar months next after the day of the date of these presents, lay out and invest at interest the sum of £60,000 of lawful money of Great Britain in the names of Jeremiah Head, of Ipswich, aforesaid, gentleman; John Biddle Alexander, of the same place, banker; Simon Batley Jackaman, of the same place, gentleman, and the said William Henry Alexander, or in the names or name of the survivors, etc., in the Government or Parliamentary Stocks or Funds of Great Britain, called the £3 per Centum Consolitated Annuities; or in case the said Benjamin Brame shall not in his lifetime lay out and invest the said sum of £60,000, as aforesaid, that then the executors or administrators of the said Benjamin Brame, within the space of twelve calendar months next after his decease, and subject, and without prejudice to [597] the payment or discharge, by, with, or out of the estate of the said Benjamin Brame, of all the funeral and testamentary expenses and other debts of the said Benjamin Brame, and the legacies (if any) given or bequeathed, or hereafter to be given or bequeathed, by his will, or any codicil or codicils thereto, and of all annuities (if any) given, bequeathed, or settled, or hereafter to be given, bequeathed, or settled, by the said Benjamin Brame, by his will, or any codicil or codicils thereto, or by any deed or deeds, instrument or instruments, in writing under his hand and seal, to and shall lay out and invest at interest the sum of £60,000 of lawful money of Great Britain in the names of the said Jeremiah Head, John Biddle Alexander, Simon Batley Jackaman, and William Henry Alexander, or of the survivors or survivor of them, or of the executors or administrators of such survivor in the said Parliamentary Stock or Fund of Great Britain, called the £3 per Centum Consolidated Annuities, to and for the end, intent, and purpose, that the said £3 per Centum Consolidated Annuities, so to be purchased as aforesaid, shall and may henceforth be held or possessed upon the trusts, and for the purposes |563 VIII H.L.C., 698 JEFFRIES V. ALEXANDER [i860] hereinafter expressed or declared, and contained of and concerning the same.1" And Head, J. B. Alexander, Jackaman, and W. H. Alexander and the survivors, etc., and the trustees for the time being of the said 3 per Cents, and of all other funds, securities, and estate, were to be possessed thereof for the purposes of the charitable uses and trusts thereinafter declared, and of the dividends, interest, and yearly produce of all and singular the said 3 per Cents, and trust estate " upon the trusts, for the purposes, and subject to the powers, provisoes, declarations, and agreements thereinafter expressed or declared, and contained of and concerning the same, [598] (that is to say)." Then came the declaration of the trusts, all of which were for the benefit of the poor of Ipswich. The other of the two indentures so executed by Benjamin Brame, which was called " The Legacy and Annuity Deed," was also dated the 12th of August 1846, and purported to be made between Benjamin Brame of the one part, and certain other persons of the other part; but like the first, it was executed by Brame alone. This deed was executed for the purpose of providing small legacies and annuities for individuals of the testator's family and household, and covenanted for their payment by his executors within twelve months after his decease. The will of Benjamin Brame was made on the same day as the deeds. By that will he gave numerous small legacies to various individuals and existing charities: " All which charitable legacies I direct shall be paid out of such part only of my personal estate as shall not consist of chattels real for the purposes of the said charitable institutions." And he nominated Head, J. B. Alexander, and Jackaman his executors; and he went on thus: " I also give and devise all my mortgage and trust estates to the said J. Head, J. B. Alexander, S. B. Jackaman, and their heirs, upon the trusts to which the same may be subject." Brame afterwards made a codicil to his will, which codicil bore date the 20th of November 1848, by which he revoked, the appointment of Head as one of his executors, and substituted in place of that person, as executor, T. B. Eoss: " And I hereby direct and appoint that the said Thomas Baldock Ross shall be a trustee with the other trustees in the execution and management of the charitable trusts created by a deed executed by me for that purpose." [599] Benjamin Brame died 21st July 1851, and on the same day a paper parcel, which he described to the persons attending his death-bed, was found in a bureau in the room adjoining to that in which...
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