1836. MAYOR OF LYONS v. EAST INDIA COMPANY. attorney, whether or not the Court, by declaring under its own superintendence, and amenable to its jurisdiction; giving it to the Government is letting go all hold over it, and at once departing with its jurisdiction to those who can never in any way be interfered with or called to account. It appears clear, that if the Court had been satisfied of the means existing for effecting the testator's purpose at Lucknow, there should have been appointed a trustee or trustees for applying the fund, under the superintendence of the Court, and that these trustees should, therefore, have been persons residing within its jurisdiction; and if officers of its own, so much the better. This part of the decree must therefore be altered, by reversing the part which declares that the Governor-general had the means, and was able to give effect to the bequest for the college at Lucknow, and such part of the consequential directions as relates to paying over the fund to the Governor-general, or person appointed by him. But the part of the decree declaring the bequest of 4,000 rupees void, is to stand; and also the part relating to sums which may be due to persons on account of any expenditure already made at Lucknow. Then, for the part reversed, there must be substituted, a direction that further inquiry be made as to the power of the Governor-general to aid trustees to be appointed by the Court in giving effect to the bequest regarding the college; and if the Court shall be satisfied that in this, or in any other way, such trustees can give it effect, then the fund is to be paid over to such trustees, who are to report from time to time, to the Master, and to administer the fund under the superintendence of the Court. The Court giving such directions as may be necessary to establish the charity according 1836. MAYOR OF LYONS V. EAST INDIA 1836. -MAYOR OF LYONS v. EAST INDIA COMPANY. to the will. Their Lordships are well aware that in pursuing this course, they are sanctioning a proceeding, for which there is no exact and complete precedent in the administration of charitable funds in this country. But in one respect there is sufficient authority, viz., as far as regards a postponement of distributions, and the not declaring the gift void, on account of any present difficulty in giving it effect. The case of Attorney-General v. Bishop of Chester, furnishes a direct authority for not declaring a legacy void because it was for an object which could not at the time be accomplished, and for retaining the fund in Court until it should be possible to apply it. No doubt if, in that case, some years had elapsed, and no prospect appeared of an Episcopal establishment in Canada, the Court would then have declared the legacy void, and distributed the fund to the parties entitled. So here, if it shall be found, either at first that there can be no application of the fund in the manner directed by the Will, or that the trustees, after making the attempt, fail in it, the Court will then direct the same application to be made of it, which they would have done had the bequest been at first declared void. Where there exists a party entitled to receive a fund bequeathed for a foreign charity, there can be no objection made to give over that fund to him, and allowing him to administer it in the country in which the charity is to be established; this has been repeatedly done, both where the party was within the jurisdiction of the Court, and where he was beyond it, as Mornet v. Vulliamy (Switzerland), and Marton v. Paxton (Lyons), and Emery v. Hill (b), which followed the former precedents. (b) 1 Russ. 112. The Court has gone further, of late years, than Lord Hardwick thought he could in Provost of Edinburgh v. Aubrey; for he then held, that he could give no directions as to the distribution. But in Cadel v. Grant, 1795, Oliphant v. Hendrie, and in Attorney-General v. Lepine, the Court interfered with the application of the fund, directing a scheme to carry the charity into execution. In the latter case, the objection was taken to the jurisdiction, on the ground that the charity was to be executed in Scotland; but it was abandoned, and the decree affirmed, on the re-hearing. In a consequent stage of the same cause, the objection appears to have been renewed with effect; for there is a report of a re-hearing of the former decree, when Lord Eldon reversed so much of it as directed the scheme approved by the Master to be carried into execution. There is another case, The Attorneygeneral v. The Mayor of London (c), as to a charity in America, in which no difficulty was held to exist in directing a scheme as long as the American settlements remained under the Crown; but there it was contended, that the moment they became. severed, by the cession at the end of the American war, the objection for the first time arose. The Court appears there, nevertheless, to have directed a scheme; though it was said, and justly said, that exactly the same objection, as to the jurisdiction, existed to the scheme being directed before the severance as since; for the Court of Chancery had no jurisdiction, before the severance, to grant a scheme except to a party within its jurisdiction, the Court operating through those parties; the severance made no difference in that respect. The difficulty in the present case arises from there being no party (c) 2 Swan, 180; 3 Bro. C. C. 171; 1 Ves. J. 234. 1836. MAYOR OF LYONS V. EAST INDIA 1836. MAYOR OF LYONS v. EAST INDIA entitled to receive and administer the fund abroad, to whom the Supreme Court in Bengal could hand it over, and no person within its jurisdiction who could administer the fund under its superintendence. But as in this country the Court has directed a scheme where there was a party, so it has also supplied the want of a trustee. In AttorneyGeneral v. Stephens, the charity was to be executed in Lisbon, and two trustees had been named by the testator, one of whom was an official person under an Act of Parliament, which being repealed, the co-trustee only remained. This was the Consulgeneral, and he refused to continue in the trust without another to aid him. The Master of the Rolls appointed a new trustee on the Consul's application. Possibly this decision, taken with the former one, may afford a precedent sufficiently near the present to warrant the course taken. But its complete justification must be sought in the peculiar circumstances of the case; and where there exists any possibility of pursuing the declared intention of the testator upon the subject, on which, of all others, he plainly was the most anxious, their Lordships would be very unwilling to frustrate that intention by directing the funds to other objects. This seems to have been the strong inclination of the Court below, and we only differ with them as to the means of giving effect to it. This, however, is not the peculiarity to which we principally refer. The objection, in the ordinary case, to administering a foreign charity under the superintendence of the Court, is this: those who are engaged in the actual execution of it, are beyond the Court's control, and those who are within the jurisdiction are answerable to the Court for the acts of persons as to whom they can derive no aid |
