(g) Stat. 9 Geo. II. 0. 36.

(h) Walker v. Richardson, 2 M. & W. 882; A. -G. v. Glyn, 12 Sim. 84.

(i) Ashton v. Jones, 28 Bear. 460.

(k) Stat. 51 & 62 Vict. 0. 42: see the title.

A Consolidation Act (l), it is thought that the exemptions so established apply equally under the present law.

The Mortmain Acts obviously prohibited the gift by will to a charity of any interest in land (m). But by the Mortmain and Charitable Uses Act, 1891 (n), land may be assured by will to or for the benefit of any charitable use. In such case, however, the land is, as a rule, required to be sold within one year from the death of the testator, or such extended period (o) as may be determined by the High Court, a Judge thereof at chambers, or the Charity Commissioners (p); and if such time shall expire without completion of the sale of the land, it shall forthwith vest in the official trustee of charity lands, and the Charity Commissioners shall take all necessary steps for the sale or the completion of the sale thereof (q). And the assurance by will of any personal estate to be laid out in the purchase of land to or for the benefit of any charitable uses is no longer rendered void; for the Act provides that any personal estate so assured shall be held to or for the benefit of the charitable uses specified as though there had been no direction to lay it out in the purchase of land (r). But the High Court, a Judge thereof at chambers, or the Charity Conimissioners may, if satisfied that any land assured by will to or for the benefit of any charitable uses or proposed to be purchased out of personal estate by will directed to be laid out in the purchase of land is required for actual occupation for the purposes of the charity, and not as an investment, by order sanction the retention or acquisition, as the case may be, of such land (s). As we have seen (t), the Act also exempted money secured on land or other personal estate arising from or connected with land from the requirements of the Act of 1888 (u), thus allowing for the future the bequest to charities of impure personalty. It has been held that, where land is devised to trustees on trust to sell the same and hand over the proceeds of the sale to a charity, the bequest to the charity is of personal estate arising from land, and the case is governed by the last mentioned provision of the Act of 1891, and not by the provisions (x) relating to the devise of land to or for the benefit of any charitable use. In such case, therefore, the land is not required to be sold within a year after the testator's death; and the time for exercising the trust for sale is decided by the rules generally applicable to such trusts (y); but the trustees are bound to sell within a reasonable time, and cannot, with the consent of the charity, postpone the sale indefinitely (z).

Gift of land by will to a charity.

(l) Consolidation Acts, which are Acts passed for the purpose of expressing existing statute law in a new form, are construed on principles different from those which govern the construction of statutes enacting new law or codifying the existing common or judge-made law. Thus the provisions of Consolidation Acts are considered to he retrospective, contrary to the general rule applicable to other statutes: Ex p. Todd, 19 Q. B. D. 186. 195, 199; they are construed with reference to the state of law which existed at the time when the enactments consolidated were originally passed: Mitchell v. Simpson, 25 Q. B. D. 183; Stewart v. Thames Conservators, 1908, 1 K. B. 893, 902, 903; their construction will be determined by the cases decided upon the construction of the original enactments: Re Budgett, 1894, 2 Ch. 557; Re Richard, 1894, 3 Ch. 704; Norton v. Davison, 1899, 1 Q. B. 401; The Heather Bell, 1901, P. 143, 272; and the Acts consolidated may be referred to as a guide to the meaning of the consolidating Act, if ambiguous; R. v. Abrahams, 1904, 2 K. B. 859. Statutes purporting to codify the common law are construed primarily according to the expressions used therein, and not by reference to the previous law; Bank of England v. Vag-liano, 1891, A. C. 107, 120, 144, 145, 160, 161.

(m) Above, p. 446.

(n) Stat. 54 & 55 Vict. c. 73 (passed 5th August, 1891), s. 5; see Re Bridger, 1894, 1 Ch. 297; Re Hume, 1895, 1 Ch. 422. The Act only applies to wills of testators dying after the passing thereof (sect. 9), and is not to limit or affect the exemptions contained in Part III. of the Mortmain and Charitable Uses Act, 1888 (above, p. 450), or to apply to any land or personal estate to be laid out in the purchase of land acquired under any assurance to which such exemptions or any of them apply (sect. 10).

(o) See Re Sidebottom, 1901, 2 Ch. 1.

(p) See note (n), above.

Construction of Consolidation Acts.

Codifying Acts.

(q) Sect. 6; Be Ryland, 1903, 1 Ch. 407.

(r) Sect. 7; see Re Sutton, 1901, 2 Ch. 640.

(s) Sect. 8; see Re Ryland, 11)03, 1 Ch. 467, 474. (t) Above, p. 450. (u) Sect. 3.

(x) Sects. 5, 6, 8, above. (y) Above, p. 256.

It is a question whether a contract to sell land to be assured to some charitable use is affected by the provisions contained in Part II. of the Mortmain and Charitable Uses Act, 1888 (a). This depends on the question whether such a contract is an assurance of the land within the meaning of that Act (b); for every assurance (in the ordinary legal meaning of the word, apart from statute) of land to any charitable uses must be made in conformity with the Act and, unless so made, is void. Such a contract is not of course an assurance of any legal estate in the land: but it has the effect in equity of an immediate conveyance to the purchaser of the whole equitable estate in the land purchased (c); it operates in fact as a transfer of the equitable ownership of the property sold, and seems therefore to come within the definition of an assurance, unless the term, as used in the Act, is to be confined to conveyances of some legal estate or interest (d), or is not to extend to conveyances of the equitable estate effected by the rule of equity, that what is agreed to be done shall be treated as actually accomplished (e). Such a restriction of the term would have the remarkable result that, whilst an actual conveyance of land on the completion of a sale to a charity would be void (say) if it were attested by one witness only(/'), a sale effected by a written contract and subsequent payment of the purchase money without further conveyance would be unimpeachable, though the contract were not made by deed, nor attested by any witness, nor enrolled. A door would in fact be left open for evasion of the Act (g). It has been held that, where a contract for the sale of land to some charitable use had been actually completed by a deed of conveyance, which was void for non-compliance with the old Mortmain Act, the whole transaction was void in equity as well as at law, and the land was not subject to the charitable trusts as having been effectually appropriated thereto by the contract of sale (h.). This seems to show that the contract for sale could not have had the usual effect of transferring the equitable ownership of the land sold to the purchaser; for if it had had that effect, the land would have remained subject to the charitable trusts, though the subsequent conveyance of the legal estate were void. But if the equitable ownership of the land were not transferred by the contract, that could only be because the contract was an assurance thereof not made as required by the Mortmain Act and therefore void (i).