Imatges de pàgina
PDF
EPUB

James and Louisa Barrett, to be on trust for such one child only. There were also other ulterior gifts of the said 6,000l. in events which did not happen. And as to the sum of 6,000l., the remaining part of the said sum of 12,000l., and the residue of his personal estate, the said testator directed the trustees or trustee for the time being, to stand possessed thereof, upon trust, for all and every the child and children of his daughter Elizabeth Rudge, who being a son or sons (other than an eldest son) should attain the age of twenty-one years, or being a daughter or daughters should attain that age or marry, if more than one, in the shares and proportions therein mentioned. And the testator authorized and empowered the trustees or trustee for the time being of his said will, within twelve calendar months after his decease, to raise the sum of 6,000l. therein before given for the benefit of the children of his late son, James Barrett, and the sum of 6,000l. therein before given for the benefit of the children of his daughter, Elizabeth Rudge, by mortgage of the whole or any part of his real estates thereinbefore devised and appointed, so, nevertheless, that one-third part of the sum to be raised should be secured on the estates bequeathed for the benefit of the children of the said Elizabeth Rudge and her issue, and the remaining two third parts on the estates bequeathed for the benefit of his son John Barrett and his issue. And the testator declared, that it should be lawful for the trustees or trustee for the time being of his said will, by and out of the trust monies therein before bequeathed, to levy and raise for the maintenance and education of such of the children of his said son James, or of his said daughter Elizabeth Rudge, for whom it was his intention to provide a portion or portions as aforesaid, in the mean time, and until his or their portion or respective portions should become payable, such yearly sum and sums of money, not exceeding what the interest of the expectant portion or portions intended to be thereby provided for such child or children respectively would amount to after the rate of 4l. per cent. per annum, as to the said trustees or trustee should seem sufficient; such sums for maintenance to be free and clear from all deductions for taxes or other

wise, and to be raised and paid in such manner and at such times as to the said trustees should seem meet. The testator also authorized the said trustees or trustee for the time being, at any time or times after his decease, to levy and raise by the ways and means aforesaid or any of them, for the advancement or preferment in the world of the son or sons (other than an eldest or an only son) of the said Elizabeth Rudge, for the time being entitled as aforesaid, or of the children of his son, the said James Barrett, any sum or sums of money not exceeding in the whole for each of such sons or children, the amount of his or their then expectant portion or portions, which sum or sums of money should be taken in part or in full satisfaction, as the case might be, of the portion or portions provided for such son or sons as the said trustees or trustee for the time being should, in their or his discretion think fit, notwithstanding the portion or portions of such child or children should not then have become vested or payable: and the testator appointed John Winnall and William Winnall joint executors of his will.

In

The testator died on the 9th of December 1841, and this suit was instituted by the children of Elizabeth Rudge, for the administration of the testator's estate. May 1843, a decree was made referring it to the Master to take the usual accounts, and he by his report included the sum of 2351. in the personal estate of the testator. This sum had arisen from the sale of emblements, which consisted of crops growing upon the Prior's Court estate, which was in the occupation of the testator at the time of his death. To this part of the report John Barrett, the devisee for life of the Prior's Court estate, took exceptions. The Master also found that the testator at his death stood in loco parentis to his grandchildren, James and Louisa Barrett, children of his son James; he also found that Louisa Barrett had intermarried with the defendant, Alfred Taylor, and that several payments had been made by the executors for their maintenance; and he certified that such payments ought to be allowed out of the rents and profits of the testator's real estates, charged with the sum of 12,000l.

The cause was now brought on upon the

exceptions, and upon further directions; and also upon a petition presented by the testator's grandson, James Barrett, who was an infant, by his next friend, and also by Mr. and Mrs. Taylor, and the trustees of their marriage settlement, asking that James and Louisa Barrett might be declared entitled to interest upon their legacies of 4,000l. and 2,000l., part of the sum of 12,000l., at the rate of 4l. per cent. per annum, from the death of the testator until the payment of their legacies, deducting the sums which had been actually paid for their mainte

nance.

Mr. Roupell and Mr. Elmsley, for the plaintiffs. There was no intention of the testator to give anything farther than maintenance, until the legatees became entitled to payment of the legacy; and as to the emblements, they formed part of the personal estate, and passed to the executors-Cox v. Godsalve (1), West v. Moore (2), Vaisey v. Reynolds (3).

Mr. Walpole and Mr. Pemberton, for Messrs. Winnall, James Barrett and Alfred Taylor, and Louisa his wife.—The gift of the legacy in the testator's will carried the whole interest. As to James Barrett, the gift was contingent on his attaining twentyone, but it was given to Louisa Barrett at twenty-one or marriage; there was also no gift over, except between themselves, and the whole interest was consequently vested, even if James Barrett died under twentyone. The power to raise the 12,000. was a duty which the trustees were bound to execute, since it was in the nature of a trustBrown v. Higgs (4), 2 Sugden on Powers, 175. The 12,000l. was, therefore, severed from the estate, and the whole case turned upon the power to raise money for the maintenance of the petitioners. The testator, however, had placed himself in loco parentis, and their legacy must be considered as a gift from a father to his children Mole v. Mole (5), Chambers v. Goldwin (6), Boddy v. Dawes (7), Wynch

(1) 6 East, 604, n.

(2) 8 Ibid. 338. (3) 5 Russ. 12.

(4) 8 Ves. 574.

(5) 1 Dick. 310.

(6) 11 Ves. 1.

(7) 1 Keen, 362.

v. Wynch (8). And as no other legacy was provided for these children it would carry interest-Donovan v. Needham (9).

Mr. Bowyer, for James Thomas Rudge. -The gift of maintenance excluded the claim for interest; and, besides that, the direction was that it should be levied and raised out of the trust monies.

Mr. Turner and Mr. Hetherington, for John Barrett.-The words "live and dead stock" shewed the intention of the testator; the bequest was made without reference to the growing crops; there was nothing in the will which evinced an intention to take anything off the farm, or to sever the emblements from the devised estate. It was also the intention of the testator to give nothing more than maintenance to his grandchildren, and that was to commence at the end of the year after his decease.

Mr. Roupell, in reply.

The MASTER OF THE ROLLS.I consider that the growing crops passed to the executors, and that they must be held to be a part of the personal estate of the testator. I also think, upon the construction of this will, that the legatees are not entitled to interest at 4l. per cent., as asked by the petitioners, but to maintenance only, as found by the Master's report.

CHALK . RAINE.

WIGRAM, V.C.
July 18, 19. f
Evidence, Reception of, where Replica-
tion not filed-Receiver.

In a suit by a specialty creditor, his claim was admitted by the answer of the administratrix and heiress-at-law of the debtor, who had died intestate. The cause was set down to be heard on bill and answer, without any replication having been filed:-Held, that the plaintiff might prove, by affidavit at the hearing, the deed creating his charge.

Held, also, that as it was admitted that the estate of the intestate was insufficient to pay in full the demand of the plaintiff, the latter was entitled to have a receiver appointed.

(8) 1 Cox, 433.

(9) 9 Beav. 164; s. c. 15 Law J. Rep. (N.s.)

Chanc. 193.

This was a suit by a specialty creditor in respect of his claim on the real and personal estate of one George Rolph, who died intestate. The claim of the plaintiff was admitted by the joint answer of the heiress-at-law and administratrix of the intestate and her husband, and that the assets and real estate of the intestate were insufficient to meet the claim. The bill prayed that a receiver might be appointed. The cause had been set down to be heard upon bill and answer, and no replication had been filed.

Mr. W. Morris, for the plaintiff, offered to prove the deed under which the claim was made by reading an affidavit of its execution, and cited

Fielder v. Cage, Wy. Pract. Reg. 219.
Rowland v. Sturgis, 2 Hare, 520.

He also asked that a receiver might be appointed.

Mr. Bacon and Mr. Nalder, for the defendants, submitted that the deed could not be proved in the proposed manner, as a replication had not been filed, and cited Jones v. Griffith (1). They objected to the appointment of a receiver.

[merged small][merged small][ocr errors][merged small][merged small][merged small][merged small]

church and the head master of the grammar school attached to it, where both the cathedral and school are governed by the statutes of the founder and subject to the jurisdiction of a special visitor, and where the head master is paid out of the common funds of the endowment. Therefore, where the dean and chapter of the cathedral church of Rochester, in exercise of a power vested in them by one of the statutes of the founder, summarily dismissed the head master of the grammar school attached to the cathedral from his office without hearing him in his defence, the Court refused to interfere by injunction, either durante lite or otherwise, to restrain the dean and chapter from removing him from his office or appointing another head master in his stead.

This was a motion by the Rev. Robert Whiston, clerk, for an injunction to restrain the dean and chapter of the cathedral church of Rochester from removing him from the office of upper or head master of the free grammar school of the said church, and from proceeding to the election of any other person as such head master during his retention and incumbency of the office, and from impeding or in any manner interfering with him in the enjoyment of his rights, interests and privileges as such head master; and from commencing any action or other proceeding against him or disturbing him in his office, or in the exercise or performance of his powers or duties, or in the enjoyment of his rights, interests and privileges. The motion was made on bill and affidavits.

The plaintiff had been appointed head master of the school by the dean and chapter in 1842, and had been removed by them at the latter end of June last in consequence of publishing the pamphlet referred to in the deed or instrument of removal subse quently mentioned.

The school, which was founded and endowed by Henry VIII. in 1592, and the cathedral were governed by certain sets of private statutes under royal letters patent relating to the foundation, endowment and management. One of the objects of the foundation expressed in the letters patent was ut juventus in literis liberaliter instituatur;" and one section of the statute, headed De Pueris Gramma

66

3 P

ticis,' was as follows:-"Statuimus ut viginti pueri pauperes et amicorum ope destituti, de bonis ecclesiæ nostræ alendi ingeniis (quoad fieri potest) ad discendum natis et aptis. Quos tamen admitti nolumus pauperes pueros in ecclesiâ nostrâ antequam noverint legere et scribere et mediocriter calluerint prima grammaticæ rudimenta, idque judicio decani et archididasculi; atque hos pueros volumus impensis ecclesiæ nostræ ali." A clause in another statute was, "Statuimus ut ex bonis ecclesiæ nostræ quatuor scholares pauperes in academiis nostris semper alantur." No such scholars as the above were now maintained at the university, but each of the four scholars received only the amount which, by one of the statutes, was directed to be paid to them. The plaintiff conceived that this amount should be raised to the current value of coin at the present time, and which had increased, according to the authority of Nichols, Hallam, and other antiquarians and historians, at least twelvefold since the reign of Henry VIII., and he submitted a proposal to that effect to the dean and chapter. After some correspondence on the subject, the latter expressed their desire to close it, and intimated to the plaintiff by letter that they did not doubt the correctness of his facts respecting the changes which had taken place in the value of money, but that they dissented from the conclusion, to which they presumed he wished to arrive, that they were bound to increase the exhibitions of the scholars. The plaintiff next petitioned the Bishop of Rochester, the visitor of the cathedral, on the subject, and was informed that his petition would be heard as soon as his Lordship should have had an opportunity of consulting with his legal advisers, and the illness of Dr. Lushington, the chancellor of the diocese, would permit. At the expiration of three months the plaintiff again applied to the Bishop on the subject, complaining of the delay which had taken place, and was informed, in reply, that his Lordship would then shortly be at Rochester, and that he did not think, considering that the plaintiff was claiming privileges which, if they ever had existed, had been in abeyance for nearly 300 years, that fifteen months was a long period to

wait for the adjudication of a question of so much importance. In April following the Bishop informed the plaintiff that after due inquiry his Lordship found that the Court of Chancery was the proper tribunal before which the plaintiff must lay his complaint against the dean and chapter. The first edition of the plaintiff's pamphlet appeared on the 26th of May 1849, and a second edition was shortly afterwards published by him. On the 27th of June he was summoned to the chapter-room, and received from the dean and chapter his dismissal contained in the following document:

[ocr errors]

"To all to whom these presents shall come, the dean and chapter of the cathedral church of Christ and the blessed Virgin Mary of Rochester, send greeting-Whereas Robert Whiston, clerk, M.A., master of the grammar school of the said cathedral church, has lately written and caused to be printed and published a pamphlet, intituled Cathedral Trusts and their Fulfilment,' of which the scope and tendency are to cast odium on the dean and chapter of the said cathedral church, and the dean and canons thereof, individually, and to hold them up, collectively and individually, to the reproach and contempt of the subordinate members of the said cathedral church, the inhabitants of the city of Rochester, and Her Majesty's subjects in general; and which pamphlet contains many scandalous and libellous passages, directed against the dean and chapter of the said cathedral church, and the dean and canons thereof, individually, and also against the lord Bishop of the diocese, the visitor of the said cathedral church, and likewise against the members of divers other cathedral churches, particularly at page 42, where the dean and chapter of the said cathedral church of Rochester are charged with a violation of ordinances, all of which they have solemnly sworn to observe, and with suppressing to their own profit offices and payments meant for the benefit of the poorer members of their cathedral; and at page 43 are the following words :-"Not only do the dean and chapter of Rochester disregard the statutes and loosen the obligation of the oaths for which so much reverence has been professed, but they also violate the law"; and at

page 49, after setting forth the words of the respective oaths of the dean and canons of Rochester, the writer proceeds, "Such are the oaths taken by the dean and canons of Rochester; and I assert, that after taking them, and after pleading the statutes and ordinances of their founder, and although bound (and every individual member of the chapter), to keep the latter by the strongest and most sacred ties, they, notwithstanding, continue to swell their dividends by disregarding their statutes and loosening the obligation of their oaths. This assertion, a very grave and serious one, I shall prove in detail hereafter"; and at page 92, in treating of the stipends of the foundation scholars, the writer observes, "In one case only, that of Durham, has even an approximation been made to the fulfilment of this duty: in all the rest it has been entirely disregarded, and in the cases of Canterbury, Worcester, Ely, and Rochester (till 1842) under aggravated circumstances of malversation"; and at page 93, after stating that the cases of Ely and Rochester have been pre-eminently bad, and quoting from a declaration, said to have been signed by the existing canon of Rochester for his brethren, "It is not, I think, too much to say, that such acts, with such words, are contra fidem, contra jusjurandum, contra rempublicam"; and at page 100, the writer proceeds and alleges, "Such was the state of things in 1831 and 1834. And I feel I am not using language too harsh in affirming. that the then apportionment of the cathedral funds between the chapter and their schools displays, except at Westminster, a disregard of justice, and a preference of money to principle, which in ordinary cases of trust would be visited with the severest reprobation, if not with the penalty of restitution. But the trustees in this case are dignified and beneficed clergymen, who solicit charitable contributions for other schools from those whom they wrong, and who, after reminding their congregations, week after week, from their cathedral pulpits, of the strict and solemn account which we must all one day give before the judgment seat of Christ, and exhorting them almost in the same breath to pray for a blessing on all seminaries of sound learning and religious education, then go with

subtlety and take away from their own school the founder's blessing, and deny to their neighbour's children their birthright and inheritance. The dean and chapter of Rochester, in particular, 'would not conceal their conscientious opinion,' that for certain ends certain means (not adverse to their own interests) 'were better and safer than others, because less obviously at variance with the intention of their founder.' It would be well and perhaps safer' for them if they would regard the opinions of others who hear exhortations so obviously at variance with practice, from men who have called God to witness that they will do what they do not; though it may be done, as it should be, not by taking from any man anything that is his, but by rendering unto every man his due;' and at page 102, the writer proceeds and further alleges," In fact nothing but the assurance of such sympathy, and the consciousness of a righteous cause, with faith in the power of it, could have sustained the persevering, and as yet single-handed efforts which I have made to prevail upon the dean and chapter of Rochester to carry out the intention of their founder,' upon every ground of justice and equity, which they once maintained most successfully and advantageously, to keep their patronage(1), and which they now abandon, to keep up their dividends"; and at the same page the writer also remarks, "For more than fifteen months I have waited, laboured, and striven in vain, for justice. I have found that she has left the cathedral precinct-it is not her home." And whereas the laws of this realm provide a remedy for any wrong or grievance that may exist, and do not permit any man openly to vilify the character of another, or to impute to him wicked motives and intentions; and whereas the said Robert Whiston, master of the grammar school of the said cathedral church of Rochester, by writing and causing the above pamphlet to be printed and published, has been guilty of a very grave offence, and in the judgment of the dean and chapter has proved himself to be utterly unfit and unworthy to be any longer intrusted with the instruction

(1) Alluding to the case of The King v. the Dean and Chapter of Rochester, 3 B. & Ad. 95.

« AnteriorContinua »