and lands, and real and immoveable property, as well in as out of Calcutta, the same being, as appellants are advised, in fact, lawfully devised by the testator, the Court should have decreed and provided that, subject to the specific devises, bequests, and directions contained in the Will, all the testator's real and personal estates, wherever situate, should, according to the respective values thereof, bear a due proportion of his legacies, charitable and others; and the decree should also have provided that all the estates should bear a due proportion of the costs of the suits, and the proceedings in the same, or at least of some portion of such costs, or at least, and so far as the apportionment could not then be made, the decree should have contained proper reservations, with a view to such ultimate apportionment of the legacies and costs, subject to the inquiries directed, or which ought to have been directed, respecting the testator's real and immoveable property beyond the boundaries of Calcutta. On the part of the respondents, the East India Company, it was suggested, that in the event of its being holden that any part of General Martin's estate did not pass under his Will, on account of his being an alien, or otherwise, very important questions would arise, which, regard being had to the state of proceedings in the Court below, could not there be properly raised or decided; and the respondents further suggested, that in case any charitable bequests in the Will could not be executed in the manner pointed out by the testator, the same would be to be disposed of by the respondents; and they submitted, that the decree of the 23d February 1832, ought, so far as it affect 1836. MAYOR OF LYONS V. EAST INDIA 1836. MAYOR OF LYONS v. EAST INDIA COMPANY. ed the charities at Calcutta and Lucknow, to be affirmed, for the following amongst other reasons: Because the bequests for distribution of alms to the poor, and the liberation of poor prisoners for debt at Calcutta, were valid bequests, and it was the duty of the Supreme Court, in the suits for the general administration of assets of the testator, to inquire whether sufficient sums had been applied out of his assets for securing payment of those bequests. Because the bequest for the purpose of establishing a College at Lucknow, was a valid bequest, and ought to be carried into execution; and the mode adopted by the Supreme Court to carry it into effect was strictly regular and proper. On behalf of the Crown, it was insisted (among other reasons), that His Majesty was entitled to all the lands, tenements and hereditaments, situate within the town of Calcutta, or the Presidencies of Fort William, or provinces subject thereto, of which the testator, Claude Martin, an alien, died seised or possessed, by virtue of the Royal Prerogative. That His Majesty was entitled to the 4,000 sicca rupees directed to be paid annually for the liberation of prisoners at Lucknow, the said bequest having been decreed to be void; the said 4,000 sicca rupees per annum to be disposed of by His Majesty to such charitable purposes as he shall be advised. Mr. Tinney, K. C., and Mr. Pemberton, K. C., for the Appellants. Mr. Tinney, K. C.:— In consequence of the order for the consolidation of the appeals presented in this case by the Mayor of Lyons, and the next-of-kin of General Martin, the appellants appear here by the same counsel. This, though a seeming disadvantage (for we must argue some points of the case in the alternative), is in reality none, for by a process familiar in France, though not known to us, the interests of the city of Lyons, and the next of kin of the late General Martin, have been united, an arrangement being made, under the authority of the sign manual of the King of France, that whatever benefit should accrue to either party by the decision of the Court, shall be for their mutual advantage. These appeals arise upon the construction and effect of the very long and complicated Will of General Claude Martin, a Frenchman by birth, domiciled at Lucknow, in the territories of the King of Oude, but nevertheless in the service of the East India Company, who was possessed, at the time of his death, of a very large real and personal estate, both in Europe, and in the East Indies, and which he has bequeathed chiefly for charitable purposes. The suits and proceedings which have been instituted to establish, and carry into effect, the provisions of this Will, are very fully stated in the papers in the appeal; and the question now comes before this Court upon two several appeals against the proceedings and decree of the Supreme Court of Calcutta, upon the hearing of those suits. Upon the effect of these proceedings, three points arise. I. Whether the law of England as to aliens applies to real estates in Calcutta, so as to prevent the lands of General Martin passing by his Will. II. Whether the College of Constantia House, in Lucknow, without the territories of the East India Company, can be established by the 1836. MAYOR OF LYONS V. EAST INDIA 1836. MAYOR OF LYONS v. EAST INDIA Supreme Court of Calcutta; and, III. Whether the various legacies bequeathed by General Martin are charged on the real as well as the personal estate. If this Court should be of opinion in the affirmative on the first point, and should hold, with the Court below, that General Martin, being an alien, was incapable of devising his lands, and consequently that those situate in Calcutta cannot pass, then a question will arise between the Crown and the East India Company, as to whom such lands revert. With that question, however, the appellants have nothing to do, it being their business only to insist before your Lordships that no forfeiture has occurred in consequence of alienage, either to the Crown or the East India Company. With regard to the second point, whether the legacy given to establish the college of Constantia House is capable of being carried into effect, the appellants insist, that from the evidence in the Court below it is clear that it cannot; but if your Lordships shall be of a contrary opinion, a question will then arise, to whom the funds in question belong? The Mayor of Lyons contends that they must fall into the general residue, while the appellants, the next-of-kin, claim an exclusive title to them, and the Crown, or the Advocate-general, on the other hand, insist they must be appropriated to some other charitable scheme. In the third place, respecting the residuary estate, the question is, to whom the residue belongs, whether wholly to the next-of-kin, or whether so much as is real estate is vested in the heir-at-law; or whether the whole, both real and personal, is not, by the terms of the will, to be divided among the several charities mentioned by the testator. If that be so, then so much as would go to the Lucknow charity, must go to the heir-at-law so far as it is real estate, and to the next-of-kin so far as it is personal. These are the points which arise in this case, and which it is now my duty to bring successively before the Court. I. With respect to the law of alienage applying in this case, it is obvious that this point has been an after consideration. No one who reads the Will of General Martin can doubt that he was not an Englishman; the fact of his being a Frenchman was notorious to all India. And in one of the earlier decrees made in these suits, an inquiry is actually directed to ascertain who is the heir of General Martin according to the English law; and a declaration that, in case the Will of the testator should be found not to have been executed according to the Statute of Frauds, that portion of the real estates of General Martin which is situate in Calcutta is declared to belong to his heir-at-law according to the English law. It is quite clear, therefore, that neither the Supreme Court, or the East India Company, or any other person interested in the question, ever thought of raising the objection of alienage at that time. But let us see to what the objection. amounts. The general principle applicable to this question is stated by Mr. Justice Blackstone (a); and the principles there stated do not merely apply to what we call civilized countries, but even to such as are in a state of semi-barbarity, inhabited, as our possessions in America were, by wild Indians, which, though not inhabited countries in the general sense, are countries nevertheless having inhabitants, and therefore having some sort of law of their (a) 1 Bla. Com., p. 107. 1836. MAYOR OF LYONS v. EAST INDIA |