Saturday 29 May 1819 (p. 3, col. 2) COURT OF EXCHEQUER, May 12th, 1819. KIRKBANK v. HUDSON. This was a suit arising out of the will of the late Rev. Richard DICKINSON of Carlisle. The case was conducted by Mr. JERVIS and Mr. HARRISON for the plaintiffs, and Mr. MARTIN and Mr. LYNCH were Counsel for the defendants. It appeared from the pleadings, that Mr. DICKINSON, the testator, who died in October 1816, possessed of personal property to the amount of £5000, had bequeathed the same to trustees "to be a perpetual endowment or maintenance for two schools, one in the parish of Lamplugh, and the other in the parish of Castlecarrock, both in the county of Cumberland. By another clause in his will he recommended that at a convenient time his money should be collected together and laid out in the purchase of a freehold messuage and tenement, or lands, to be a perpetual endowment for the said two schools. The next of kin, therefore, had filed a bill, praying that the above bequest for the endowments of the schools might be declared void, being within the policy of the act of 9 Geo. 2nd, cap. 36, commonly called the Mortmain Act, which was made to restrain persons from disposing of real estates to charitable uses, except by deed executed twelve months before the deaths of the donor; and that the executors might be directed to pay over and divide the testator's personal estate amongst them, according to the statute of distributions, in the same manner as if he had died intestate. Mr. MARTIN, on the part of the executors, admitted that the bequest was void so far as related to that part of the testator's personal estate which at the time of his decease was secured by mortgages of real property; but he contended that money out at interest upon bonds and promissory notes (as was partly the case in this instance) might legally be left by will to charitable uses, and that although the will contained a clause recommending the money to be laid out in land, yet that such clause was by no means imperative upon the trustees, but left it entirely in their discretion to purchase land or not as might appear most advantageous to the contemplated charity. Mr. MARTIN also cited a number of cases in which it had been held that bequests of money for charitable purposes, particularly for endowing schools, were legal and valid. Mr. JERVIS, for the next of kin, contended that the bequest was evidently within the policy of the Mortmain Act, and that the words "I recommend" clearly shewed the wish and intention of the testator that his money should be invested in land; and therefore bound the executors to act in conformity thereto, as much as if he had expressly required them so to invest it. The learned Counsel, therefore, submitted with confidence, that the bequest was void. The LORD CHIEF BARON, in delivering the judgment of the Court, took a comprehensive view of all the cases decided under the Mortmain Act, and entered very minutely into the arguments which had been used on both sides, and in conclusion his Lordship saidIt is admitted on all hands that the bequest is void so far as regards the mortgages, and the only remaining question is as to the residue of the testator's personal estate. Now the bequest of this residue to the charity is quite complete in the former part of the will, and would most certainly have been valid, if the clause recommending it to be invested in land had been omitted. It has, however, been held that the words "I request" in a will are binding upon the executors; and, agreeable to all the decisions, I am of opinion that the words in this will "I recommend at a convenient time," must mean as soon as a suitable purchase could be found, and are imperative upon the executors. This bequest is, therefore, as void as a devise of lands for the same purpose would have been, and the executors must account with the next of kin for the whole of the personal estate, whether secured by mortgages or otherwise.