if no such institution could be conveniently established, then to be disposed of for certain other charitable purposes :-Held, that the primary object of the testator was the acquisition of land for charitable purposes, and the bequest was, therefore, void under the Statute of Mortmain.

This was an information filed by the Attorney General for the purpose of establishing the residuary charitable bequest contained in the will of Christopher Flaherty. The case came on upon demurrer to obtain the opinion of the Court upon the construction of the will. The information stated that C. Flaherty, by his will, dated the 29th of June 1805, in the first place appointed Thomas Wright and Henry Hodgson his executors. He then gave to his daughter Mary Flaherty the sum of 2,000l.; and, after giving several other legacies, he made the following bequest :-“ I also request that all my just debts and funeral expenses may be defrayed, and the rest, residue, and remainder of my personal property and effects whatsoever and wheresoever, I give, devise, and bequeath unto my said executors, in trust, for the establishment or institution of a charitable receptacle, if the same can be done, for twenty-seven poor old men of England, and the same number of Ireland, to be under the management of the Roman Catholic Bishop of London and the Roman Catholic Bishop of Dublin; but if no such institution can be conveniently established, I request that the same may be disposed of in charitable donations, to persons of the above description, of 61. each, and whenever an opportunity offers, that it may be added to any contributions for a similar purpose.' The testator died, shortly after the date of his will, possessed of considerable personal estates, leaving Mary Flaherty, his only child and sole next-of-kin, surviving. The two executors renounced probate, and Mary Flaherty took out letters of administration to the testator's estate, and having paid the debts and legacies of the testator, possessed herself of the whole of the estate, and applied the residue for her own benefit, without laying out any portion of it towards the charitable purposes mentioned in the will. Mary Flaherty, by her will, dated the 14th of December 1843, gave a number of lega

cies, and all the rest, residue, and remainder of her property whatsoever she gave and bequeathed to the Right Hon. Henry Lord Brougham and Vaux, for his own absolute use and benefit, out of respect for his unequalled abilities, public conduct, and principles. The information charged that Mary Flaherty had been guilty of a breach of trust in not fulfilling the charitable directions contained in the will of the testator C. Flaherty, and prayed that such bequest might be declared to be a good and valid charitable bequest, and that the same might now be established and carried out under a decree of the Court, and that the defendants, who were the executors of her will, might be directed to make good out of the assets of the testatrix, the full amount of the said residuary estate, so retained by her, with interest for the same.

Mr. Bethell and Mr. Abraham, in support of the demurrer, contended, that under the words of the testator's will, it was evident he intended a building of some description to be provided for the charitable purpose, and that, consequently, the bequest was void, under the Statute of Mortmain; that where a testator used words which might be regarded as equivalent to an expressed intention that land should be purchased, it was sufficient to invalidate the bequest. C. Flaherty had died in the year 1805, and, therefore, his daughter had been in possession of his residuary property for forty years, and it was impossible, after so long a time, to maintain such a bill as this. The principal cases cited were—

The Attorney General v. Tyndall, 2
Eden, 207.

Blandford v. Thackerell, 2 Ves. jun.

238.

The Attorney General v. Whitchurch, 3 Ves. 141.

The Attorney General v. Parsons, 8 Ves. 186.

Henshaw v. Atkinson, 3 Mad. 306. Giblett v. Hobson, 5 Sim. 651; s. c. 4 Law J. Rep. (N.S.) Chanc. 41. Sheppard v. Duke, 9 Sim. 567; s. c. 8 Law J. Rep. (N.S.) Chanc. 228. Prior v. Horniblow, 2 You. & Coll. 200. The Attorney General v. Williams, 4 Bro. C.C. 526.

Prichard v. Arbouin, 3 Russ. 456; s. c. 5 Law J. Rep. Chanc. 175.

Phillipov. Munnings, 2 Myl. & Cr. 309. The Attorney General v. Mill, 3 Russ. 328; s. c. 5 Law J. Rep. Chanc. 153.

Mr. Stuart and Mr. Blunt appeared in support of the information; and, after commenting upon the cases cited, contended that the bequest of a receptacle for poor people could not be considered a gift of land, and therefore it was not void under the Statute of Mortmain; that forty years having elapsed since the testator died would not prevent the information from being sustained; and that if the testator had clearly expressed an intention that a charity should be established, the rule of the Court was to refer it to the Master to ascertain what was the best method for carrying out that intention in a legal manner.

66

The VICE CHANCELLOR. 1.- -I must endeavour in this case to decide as well as I can what the testator really meant. That he was an illiterate person is quite manifest upon the face of his will, because some of the sentences are expressed in the most ungrammatical form. After giving to his executors all the rest, residue, and remainder of his personal estate, property, and effects, in trust, for the establishment or institution of a charitable receptacle" in the manner pointed out, the testator continues, "if no such institution can be conveniently established, I request that the same may

be disposed of in charitable donations to persons of the above description, of 61. each, and whenever an opportunity offers, that it may be added to any contributions for a similar purpose; 30%. of which sum I give to each of my executors." He had mentioned no sum before, except the general corpus of his estate. No one could doubt what the meaning was, but still it was a very loose expression. The persons named as executors are also trustees, and though it might be said they could not receive the legacies because they did not. prove the will, yet the information states that the whole of the legacies were paid. I mention this because, though they re

nounced probate, still they continued trustees, and received the legacies. One cannot but be struck with the singularity that such a question has been allowed to sleep for forty-one years, and that no attempt should have been made against these trustees and the acting executrix, to enforce the legacies. The question, however, is, what the testator meant? He gave the residue of his personal effects, in trust, for the establishment of a charitable receptacle, if the same could be done, for twenty-seven poor old men of England, and the same number of Ireland. Now, I cannot divest myself of the notion that these words point to the acquisition of a dwelling-house of some sort or other. There is a direction to procure a receptacle for fifty-four persons, and the lowest species of receptacle for human beings is a dwellinghouse, and that is clearly a direction that land shall be purchased. There is no reason for saying that a house was to be hired, or that first one house was to be taken and then another, but the whole money was to be expended in procuring a receptacle, which receptacle was to be under the management of the Roman Catholic Bishop of London and the Roman Catholic Bishop of Dublin; but if no such institution could be conveniently established, then the money was to be expended for other charitable purposes. It appears to me that the testator, by this expression, was not looking at the alternative of the law not allowing the establishment of the charity, but he was looking first to the difficulty of procuring the dwelling-house, and then the carrying it on under the superintendence of the two Bishops. I think the primary object was the acquisition of the dwelling-house for fifty-four people, and it is only on the supposition that the thing cannot be carried out that he makes the subsequent general bequest over. It was merely pointing to a contingency which might disappoint the express intention. My opinion is, that

the case comes within the Statute of Mortmain, according to all the rules that have been established; and the demurrer must, therefore, be allowed.

On a motion on behalf of the plaintiff, for an issue devisavit vel non, in a suit instituted by him, praying the delivery up of a deed of settlement to be cancelled, and that an issue might be directed as to the will of the alleged testator, the Court refused the application, the defendant having stated, by her answer, that she claimed the estates absolutely for her own use, and that the plaintiff had no title thereto, even if his alleged title, as heir-at-law of the testator, were fully established, but of which she stated her ignorance. The Court has power, in cases like the present, to grant an issue devisavit vel non, by way of interlocutory proceeding, but it will only be done after great care has been bestowed on the case, and on facts justifying the order.

In this case, John Lancashire, by his will, dated the 26th of March 1816, directed his brother William Lancashire, when the testator's daughter Sarah should attain her age of twenty-five years, or sooner if he should think proper, to lay out the sum of 8,700%., and all the interest that should have previously accumulated thereon, in the purchase of any freehold lands and tene

ments situate in England, and cause the same to be conveyed to her and her assigns for her life, as tenant for life, without impeachment of waste, with remainder to trustees to preserve contingent remainders, with remainder to the issue of his said daughter, in tail general; and, in default of such issue, to the testator's brother William Lancashire, his heirs and assigns for ever. John Lancashire died, shortly after the date of his will, leaving Ann Lancashire his widow, his daughter Sarah Lancashire (who was his only child and heiress-at-law), and his brother William Lancashire, him surviving.

William Lancashire proved the will of his brother John, and, on the 16th of May 1830, he also made his will, and thereby gave his residuary real and personal estate to the use of John Hutchinson and Ann Lancashire, their heirs, executors, administrators, and assigns, upon trust, at their discretion, to invest such parts as should consist of money, and the proceeds of the sale of such parts thereof as should not consist of money, upon government or real securities, and to apply the whole or any part of the rents and income of the trust estates in the support, maintenance, and education of his niece, the said Sarah Lancashire, until she should attain the age of twenty-one years, or be married; and, upon the happening of either of those events, upon trust, to convey, assign, and settle all the said trust estates, and the accumulations thereof (if any), or such part or parts of the same as they should

:

think proper, to the use or for the benefit of the said Sarah Lancashire and her assigns for her life, for her separate use; and after her decease, to the use, or for the benefit of all, or such one or more of the children of the said Sarah Lancashire, as she, whether covert or sole, should, by deed or by will, appoint; and, in default of such appointment, to the use or for the benefit of all the children of the said Sarah Lancashire, &c.; and, if there should be no such child, to the use of the said Ann Lancashire, her heirs, executors, administrators, and assigns, absolutely and as to such part or parts of the said trust-monies and premises which his trustees should not think proper to settle, as aforesaid, and with respect to which he gave them an absolute discretion, upon trust, to convey, assign and transfer the same unto his said niece Sarah Lancashire, her heirs, executors, administrators, and assigns absolutely. The will contained a direction that if the said John Hutchinson and Ann Lancashire, or any trustees to be appointed in their or either of their stead, should die or decline to act, it should be lawful for the acting trustee or trustees, with the consent of the person for the time being beneficially entitled to the trust premises, to appoint new trustees or a new trustee. On the 12th of June 1830, John Lancashire made a codicil to his will of that date, whereby he directed that the trustees should apply the rents and profits of the real and personal estates, devised by his will for the use and benefit of Sarah Lancashire until she attained twenty-five instead of twentyone years of age, or be married with such consent as therein mentioned.

William Lancashire died in January 1831, and his will and codicil were shortly afterwards proved by the executors, John Hutchinson and Ann Lancashire. Sarah Lancashire died intestate, and unmarried, in the month of July 1842, having previously, in the month of May 1840, attained the age of twenty-five years, and Ann Lancashire became her personal representative. Some real estates were purchased by William Lancashire with the monies, part of the personal estate of John Lancashire, and afterwards conveyed to him. On the 10th of December 1831, Ann Lancashire, in pursuance of a power created by the will of William Lancashire,

by a deed of that date appointed James Osborne a trustee of that will in the place of John Hutchinson. It was stated, in the answer of Ann Lancashire, that James Osborne, with her consent, let Sarah Lancashire, on her attaining the age of twentyfive years, into possession of the purchased trust estates as the party entitled thereto for her life, and delivered up to her the entire residue of the trust monies.

By deed dated the 1st of November 1842, and made between Ann Lancashire and James Osborne of the first part; John Hutchinson of the second part; William Cantrell and Joseph Osborne of the third part; and the said Ann Lancashire of the fourth part, after reciting (inter alia) that doubts might be entertained whether John Hutchinson was discharged from the trusts of the will of William Lancashire by the deed of the 10th of December 1831, and that, in order to obviate such doubts, John Hutchinson had concurred with Ann Lancashire and James Osborne in the propriety of the settlement proposed to be made thereby; and further reciting, that the parties acting in execution of the trusts contained in the will of William Lancashire had agreed to make the settlement thereinafter contained, all the trust real and personal estates and effects devised and bequeathed by John Lancashire and William Lancashire, except so much of the personal estate as had been paid and delivered to Sarah Lancashire, were released and assigned by the parties of the first and second parts to William Cantrell and Joseph Osborne, their heirs, executors, administrators, and assigns, to the use and for the benefit of Ann Lancashire absolutely.

The plaintiff, by the bill, alleged himself to be the heir-at-law of John and William Lancashire and Sarah Lancashire respectively, and that he was entitled to the estates in question, and sought to have the deed dated the 1st of November 1842 delivered up to be cancelled.

The bill prayed (amongst other things) a delivery up of the deed of the 1st of November 1842 to be cancelled, and that an issue devisavit vel non might be directed as to the will of William Lancashire, and that an account might be taken of all the real estates of or to which Sarah Lancashire, as the heiress-at-law of William Lancashire, or as devisee in fee simple, by virtue of his alleged

will, was, at the time of her decease, seised or well entitled to in fee simple, or otherwise, and of the rents and profits thereof received by Ann Lancashire, and the consequent di

rections.

The defendant Ann Lancashire, by her answer, insisted on her right to all the aforesaid trust property of whatever description the same might be, and that the plaintiff had no right or title whatever to any part thereof, even if his alleged title as heir-at-law of Sarah Lancashire were fully made out and established, and she stated that she could not set forth as to her belief or otherwise, whether the plaintiff was or was not the heir-at-law of Sarah Lancashire, or who was such heir-atlaw. Ann Lancashire admitted, that her solicitor had offered the plaintiff the sum of 1,000l. to release his interest, in case he could make out his pedigree as heir-at-law of Sarah Lancashire.

Mr. G. Turner and Mr. E. Webster appeared in support of a motion for an issue devisavit vel non. The 5th Order of the 9th of May 1839 (1), was intended to embrace a case like the present; besides, the defendant Ann Lancashire had so far acknowledged the plaintiff's title, as to treat with the plaintiff as heir-at-law of Sarah Lancashire, and to offer to buy up the plaintiff's rights for 1,000l. According to the law of the Court before the issuing of the Orders of 1839, if there existed in a cause a single point which must be preliminarily settled, the Court would direct an issue to be tried, and the plaintiff is not bound by the case of Topham v. Lightbody (2), which will be relied on by the other side. According to the case of Fullagar v. Clark (3), if it appears that a matter must necessarily be tried at law, the Court will at once place it in the course of trial.

[The MASTER OF THE ROLLS.-I do not as yet see any difference between the present case and Topham v. Lightbody.]

The plaintiff's claim depends on the marriage of a common ancestor of the two parties in the year 1733, and if the plaintiff produces the register of marriage of that date, all difficulty in the case will at once

(1) Ord. Can. 136; 8 Law J. Rep. (N.s.) Chanc. 273.

(2) 1 Hare, 289. (3) 18 Ves. 483.

vanish. The power of the Court to grant a motion like the present existed long before the making of the New Orders, which were not intended to confine the powers of the Court.

[The MASTER OF THE ROLLS.-In cases of specific performance, and in Lechmere v. Brasier (4), Lord Eldon thought a party would not have a good title under a creditors' suit, where the debt was not proved by the plaintiff previously to the hearing; a doctrine which created much surprise to Sir J. Leach.]

But the Court never directed an issue at the hearing to prove a debt, and the first question always put by the Master in his office is, has the plaintiff proved his debt? The case, however, of Topham v. Lightbody does not deprive the present case of the weight it derives from that of Fullagar v. Clark. On the other point of the case, it is clear the defendant Ann Lancashire can have no title under the deed of the 1st of November 1842, inasmuch as it was executed after the death of Sarah Lancashire, on the happening of which event the power to make the settlement was at an end. Mr. Kindersley and Mr. Rolt, for the defendant Ann Lancashire. The Court cannot at present decide the right between the parties, and the plaintiff must first make out his title as heir. In ordinary cases the Court does not interfere on questions of title, although it does so where fraud or insolvency is apparent, neither of which ingredients are importedin to the case before the Court. The plaintiff has quite misconceived his case, which differs very materially from the case of Gompertz v. Ansdell (5), where the affidavits were very conflicting in their nature; and the question there was, whether a case had not been made out, at all events, to justify an issue being directed at once to a court of law.

ston v.

[The MASTER OF THE ROLLS.-In JohnTodd (6), there had been a proof of title in the cause at great length, and afterwards a proof given in the Master's office, which lasted very long, and after that three trials were had at law.]