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1836.

MAYOR OF Lyons

EAST INDIA
COMPANY.

passed by the testator's Will, and was thereby devised with and formed part of the general residue of the testator's estate.

Because the third declaration or provision in the decree of 23 February 1832, that the testator, at the time of his death, had no relations of the whole blood, nor any heir-at-law, according to the English law, was not founded on any evidence taken in the causes, and is contrary to the fact, the testator having at his death a first cousin resident at Lyons, in France, he being the only son of the eldest brother of the whole blood of the testator's father, and the heir of the testator by the English law.

Because the true construction of the testator's Will, as to the bequests contained therein, relating to the establishment of the college for charitable purposes at Lucknow, is, that such charitable bequests have failed for the reasons stated in the decree of 23d February 1832, viz., “that the form of the Government of Lucknow, and the circumstances of that country, make it impossible that any effect should be given to the bequest for liberation of prisoners at Lucknow; and that the Supreme Court is incompetent and unable by itself to give effect to the other bequests for charitable establishments and institutions at Lucknow, which is a place beyond the limits of the jurisdiction of the Court, and not forming any part of the presidency of Fort William in Bengal,and the Supreme Court had not power to direct the payment of any funds for the purposes of the Lucknow college to the Governor-general in Council; but that, upon the same charities not being capable of being carried into execution, from any cause whatever, the right of the next-of-kin, and heir or heirs respectively, of

1836.

MAYOR OF LYONS

EAST INDIA
COMPANY.

the testator, thereupon accrued to the sums, and property given for such purposes, as being undisposed of by the testator's Will.

Because the true construction of the testator's Will, as to the disposition of the residue, is, that if, after payment of his debts and legacies, the residue (including in such residue as well the real, as the personal estate), exceed 100,000 l. sterling, or about ten lacs of sicca rupees, the sum of ten lacs is to be applied, as to one-third thereof, in increase of the charitable institutions directed by the Will to be established at Lyons, and one other third in increase of the charitable institutions directed by the Will to be established at Calcutta, and as to the remaining one-third thereof, given by the Will for increasing the charitable institutions at Lucknow, the bequest thereof has failed; and that such part of the last-mentioned one-third as consists of or has arisen from the personal estate, is distributable amongst the next-of-kin of the testator; and such part thereof as has arisen from the real estate, amongst the heir or heirs of the testator, according to the laws of the country, where such real estate is situate; and also, that any residue there may be of the testator's real and personal estates, not amounting to, or any there may be exceeding, the said sum of ten lacs of sicca rupees, is by the Will undisposed of, and ought in the like manner, as to such part thereof as consists of personalty, to be distributed amongst the testator's next-of-kin, and as to such part thereof as consists of real estate, amongst the heir or heirs of the testator, according to the law of the country, where such real estate is situate.

Because the reference to the Master, by the order made on the re-hearing of the causes on the 25th July 1831, and the Master's report of 5th No

VOL. I.

1836.

MAYOR OF LYONS

EAST INDIA
COMPANY.

vember 1831, made in pursuance of the same order, was altogether an irregular proceeding; and that the same report, ought not to have been acted on by the Supreme Court, having been made.not only against law, because the Supreme Court has no power to direct payment of any part of the testator's fund to the Governor-general in Council, but also without evidence duly taken; and, moreover, directly against the finding in the Master's amended report, of 19th July 1830, made in pursuance of the decree of 20 December 1822 (and which report was duly confirmed), in which report it is found, that the establishment of the college at Constantia, and the bequest of 4,000 sicca rupees per annum for the liberation of debtors at Lucknow, could not, with reference to the intention of the testator, and the sanction and disposition of the Government at Lucknow, be carried into effect; such amended report having been made in pursuance of an order of 1st March 1830, allowing exceptions to the former report of the Master of 3d February 1830, finding that he had not before him sufficient evidence to decide that point.

Because the sum of three lacs of sicca rupees, directed by the decree of 23d February 1830, to be set apart for payment of the 12,228 sicca rupees per annum, for salaries to attendants employed about the tomb, buildings and establishment at Constantia, is, even supposing the College capable of being established, an excessive sum, as it would yield, at five per cent. (the present rate of interest of the Indian Government securities), 15,000 sicca rupees per annum.

Because it is stated in the decree of the 23d February 1832, that all the legacies given by the Will, save the annuities and pensions, have been

1836.

MAYOR OF LFONS

EAST INDIA
COMPANY.

fully paid and satisfied; the legacies given by the testator's Will, for the benefit of the poor of Calcutta, Chandernagore and Lucknow, and for the relief of prisoners for debt, at Calcutta, having been before 1822, paid by John Palmer, one of the execators of the testator's Will, into the hands of the Accountant-general of the Supreme Court, in the cause or information of Ralph Uvedale, Clerk of the Crown, at the relation of Thomas Christenson against John Palmer and others; and therefore the subsequent inquiry directed in the same decree, whether the sums so paid were sufficient, and what further sum might be required, is contradictory, and ought not to have been directed; and more especially as no similar direction, is made by the decree, with respect to the legacies given for charitable purposes at Lyons.

Because the decree of 23d February 1832, does not declare that the sum of sicca rupees, 3,12,090. 7. 8., directed to be set apart to the credit of a separate account in the books of the Accountantgeneral, for payment of the annuities and pensions, belongs, on the death of the annuitants and pensioners, to the next of kin of the testator ; the same not being disposed of by the testator's Will.

Because inquiries being directed by the decree of 23d February 1832, as to what real or immoveable property the testator held at his death, situate beyond the boundaries of Calcutta, but within the presidency of Fort William, or the provinces subject to, or forming part of, the said presidency, and also as to the tenure thereof, and the testator's interest therein, and his power to dispose thereof by his Will, and respecting the rents thereof, and the accumulations of the same; an inquiry ought also to have been directed, as to who is or are

1836.

MAYOR
OF LYONS

V.
EAST INDIA
COMPANY.

entitled, to the real or immoveable property, and rents and accumulations, subject to the testator's power of disposition over the same.

Because, it appearing by the testator's Will, and the pleadings in the causes, that the testator had houses, lands, and other real property or immoveable property, not within the presidency of Fort William, or the provinces subject thereto, - for instance, at Lucknow, where the Mahomedan law prevails, and elsewhere, the decree ought to have directed the like inquiries in all respects, so far as necessary, respecting such houses, lands, and real and immoveable property,—the tenure thereof, and the estate and interest of the testator therein,—the regulations and usages respecting the right and power to devise and bequeath the same, the particulars of the rents thereof, and who has received the same since the testator's death, and respecting the accumulations thereof, and also as to who is or are entitled to the same real or immoveable property, subject to the testator's power of disposition thereof by his Will, as by the same decree were and ought to have been directed respecting the testator's real and immoveable property beyond the boundaries of Calcutta, but within the presidency of Fort William, or the provinces subject to or forming part of that presidency.

Because, it being found by the Master's report of the 3d February 1830, that the Mahomedan law makes no distinction between heirs and next-of-kin, the real or immoveable property situate in such countries, where the Mahomedan law is the law of the country, is to be considered as personal estate, subject to all the provisions of the testator's Will, and the same ought to have been so decreed accordingly; and because, as to all the testator's houses

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