Sir William Ashburnham against George Bradshaw and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1796 |
| Date | 01 January 1796 |
| Court | High Court |
English Reports Citation: 87 E.R. 1214
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS, EXCHEQUER.
michaelmas term. The Eleventh of George the Second. At Sergeants Inn Hall, before the Twelve Judges, except Denton, Justice. [289] case 255. sir william ashburnham against george bradshaw and others. A devise of lands to charitable uses made antecedent to the Statute of Mortmain ia good, although the testator did not die until after the statute commenced.-S. C. ò2 Atk. 36. S. C. Barn. c. 6. S. C. cited 3 Atk. 552. Robert Bradshaw, clerk, on the twentieth day of November, in the year 1734, (a) 6 Mod. 127. 1 Sauncl. 38. 21 Hen. 7, c. 14, s. 6. (b) Easter term, 1 Geo. 2. 8 Mod. 106, 323. 2 Stra. 778. 2 Ld. Ray, 1503. Prac. Red. 306. 1 Bar. 15. (c) See Mills v. Bond, Fort. 363. Mayhew v. Mayheiv, Fort. 367. Anonymous, 2 Wils. 10. (a) Ante, 129. 1 Salk. 206. 2 Ld. Ray. 831. See also Carter v. Fish, 1 Stra. 645. Phillips v. Fish, 8 Mod. 371. Anderson v. Biicktm, 1 Stra. 192. Batchelor v. Biggs, 2 Black. Eep. 854. S. C. 3 Wils. 319. 7 MOD. 240. MICHAELMAS TERM, 11 GEO. 2. AT SERJEANTS INN HALL 1215 duly made and executed his last will and testament; and by the said will gave and devised divers landa and tenements to trustees, and their heirs, in trust for the benefit of certain charitable uses therein mentioned, and several other trusts. The statute of the 9 Geo. 2, e. 26, entitled " An Act to restrain the disposition of lands, whereby the same become unalienable," commenced from and after the twenty-fourth of June 1736. In July 1736 the testator died, without revoking or altering his said will. The question was, whether such gift or devise, so far as the same relates to the charitable uses aforesaid, should be good in law, notwithstanding the said statute, or not? This question was referred, by the Court of Chancery, to the twelve Judges for their opinion, and it was accordingly argued before them at Serjeants Inn Hall. Eyres, Serjeant, for the heir at law. All wills are in their own nature revocable as long as the testator is living, and that not only by an express revocation, but by an Act which is inconsistent [240] with it; therefore this Act of Parliament which has been made, being contrary to and inconsistent with the will, must amount to a revocation of it; nor is it a new case. If a tenant in tail make a will, and then suffer a common recovery, though done in order to give himself a power of disposing, the will is at an end. If one make a will and afterward make a feoffment, though it be to the use of his last will, yet it is a revocation of it; and the present case is the same, for it being an Act of Parliament, the testator must be considered as a party to it, and it must be construed his own Act, as in 1 Roll. Abr. 616 (R.) pi. 2. If before 29 Hen. 8, cestui que use had devised the use, and the statute had come after which transfers the use into possession, this would have been a revocation, for thereby the use is gone ; and every man is party to an Act of Parliament, and of consequence the devisor was so too. As to the particular words of this statute they are, " that no manor, lands, tenements, rents, advowsons, or other hereditaments, corporeal or incorporeal, whatsoever ; nor any sum or sums of money, &c. shall be given, granted, aliened, limited, released, transferred, assigned, or appointed, or any ways conveyed or settled to, or upon, any person or persons, bodies politic or corporate, or otherwise, for any estate or interest whatsoever, or any ways charged or incumbered by any person or persons whatsoever, in trust, or for the benefit of any charitable uses whatsoever ; unless such gift &c." Now when is it the lands shall be said to be settled and conveyed by...
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