MORTMAIN BILL. (Hansard, 4 July 1855)

§ SIR GEORGE GREY
said, as the hon. and learned Gentleman (Mr. Headlam) who had charge of the Bill was not present, he thought it would be better to postpone it.

§ MR. HADFIELD
said, he trusted the House would proceed with the Bill. If it did not go through Committee that day it might not pass this Session, and there was no opposition to it.

§ MR. G. BUTT
said, that his hon. and learned Friend (Mr. Atherton), who brought the Bill in was absent, and had not intended, he believed, to press it forward at a period when it could scarcely be expected to pass during the present Session.

§ MR. MOWBRAY
said, he believed that his hon. and learned Colleague was only absent accidentally. Probably it had better be proceeded with.

§ SIR G. GREY
suggested, that it should be put after the other orders.

§ MR. HADFIELD
observed, that if it did not go through the Committee this day, it would be certainly lost for the present Session. He should press the Motion.

§ VISCOUNT PALMERSTON
said, several Amendments were on the paper: were the hon. Members who proposed them present?

§ MR. MOWBRAY
said, there were no Amendments. There were only two new clauses to be proposed; to which he did not believe there was any objection.

§ MR. G. BUTT
proposed an Amendment to omit certain words, for the purpose of introducing a new clause.

§ SIR G. GREY
observed, that the words could, of course, be re-introduced if the new clauses were not agreed to.

§ MR. BUTT
assented.

§ MR. MOWBRAY
thought the absence of his hon. and learned Friend (Mr. Head-lam) was attributable to some misunderstanding.

§ MR. MOWBRAY
said, he would now beg to propose to add a new clause to the Bill, the object of which was to do away with the distinction which had hitherto obtained between pure personalty and realty. He had done so on the recommendation of Mr. Pemberton Leigh, made in the evidence he gave before the Mortmain Committee. The clause he had to move, as an addition to Clause 6, was as follows— And whereas it has been held, on the construction of the first-recited Act, that a pecuniary bequest to or in trust for any charitable use is void under the provisions of the said Act, to the extent of the proportion which the assets of the testator, consisting of personalty savouring of realty, bear to the assets of the testator consisting of pure personalty; and if the assets of the testator consist entirely of personalty savouring of realty, then that such bequest is wholly void, and by the rules of courts of equity the assets are not marshalled in favour of such bequest, whereby the lawful intentions of testators are often disappointed: be it enacted, that no pecuniary bequest to or in trust for any charitable use contained in any will or codicil made after the passing of this Act shall fail or abate by reason only that the assets of the testator shall consist wholly or in part of personalty savouring of realty, but every such 432 bequest shall be payable as well by and out of such assets as last aforesaid as by and out of any assets consisting of pure personalty, in the same manner in all respects as a pecuniary bequest of like amount made by the same will or codicil to a purpose not charitable would have been payable if the same had been substituted therein for such charitable bequest, anything in the said recited Act and any rule or practice of equity to the contrary notwithstanding.

§ SIR GEORGE GREY
said, he should make no opposition to the clause, on the understanding that his hon. and learned Friend the Solicitor General, who was unavoidably absent, should at a future stage take what course he thought proper with respect to it.

§ MR. G. BUTT
said, he wished to add the following new clause also to Clause 6— And whereas by the hereinbefore recited Act, passed in the ninth year of the reign of His late Majesty King George II., it was also enacted, that from and after the 24th day of June, 1736, no sum or sums of money, goods, chattels, stocks in the public funds, securities for money, or any other personal estate whatsoever to be laid out or disposed of in the purchase of any lands, tenements, or hereditaments, should be given, appointed, or any ways settled in trust or for the benefit of any charitable uses whatsoever, unless such gift, appointment, or settlement of any such sum or sums of money or personal estate (other than stocks in the public funds) were made in the same manner and subject to the same conditions as are by the now reciting Act enacted and prescribed in reference to corporeal or incorporeal hereditaments, and unless such stocks were transferred in the manner and subject to the conditions in the same recited Act also enacted and prescribed in reference to such stocks; and whereas doubts have been entertained as to the meaning of the last here in before recited enactment, be it enacted, that no bequest contained in any will heretofore or hereafter to be made for any charitable uses whatsoever, which bequest is or shall be valid in all other respects, shall be deemed to be null and void within the meaning of the last here in before recited enactment, unless by the will containing such bequest it shall be imperatively required that the subject matter of such bequest shall be laid out or disposed of in the purchase of lands, tenements, or hereditaments.