which his, her, or their parent or parents I would have been entitled unto and taken if living, provided all the children of his said sisters or the issue of such deceased children might then have attained the age of twenty-one years, otherwise only to pay or transfer unto such of them as might have attained the said age of twenty-one years, his, her, or their proportionate share of the said residue of his estate, and paying only the interest and produce of the proportionate part of such child or children, or the issue of such deceased child or children, as might not have attained the said age at the decease of his said wife, to and for the use and benefit of such child and children, or the issue of such deceased child or children, until they should respectively attain the said age of twenty-one years; and on their respectively attaining that age, then upon trust to pay, distribute, and divide to each of them respectively, their respective shares of the said residue of his estate. At the death of the testator, his widow, Lydia Ashton, was living, and several of the children of the testator's sisters had issue, which issue died during the life of the testator's widow; and the question now raised was, whether such issue of the children of the testator's sisters who died during his widow's life took a vested interest in the proceeds of the sale of his estate. Mr. J. Parker and Mr. Follett appeared for the representatives of the issue. Mr. Stuart and Mr. Prior, contrà. The VICE CHANCELLOR.-As to the words themselves, although I may see that it is likely a contingency has happened which may not have been contemplated, yet I am bound to say the words shall have their proper effect. It appears to me that the testator thought, as to a child of his sister, that it might survive the wife or might die leaving issue; but the question then arises whether the testator contemplated the event of a child of his sister dying, leaving issue, which issue should die in the life of the tenant for life. If the words are such as to carry the share to the issue of a child, I cannot take that away merely because it might be supposed the testator, if he had had his attention called to such an event, might have said that he did not intend his words to have such an effect. In the first place, the testator has given the estate to his wife, and, after her death, the trustees were to sell the estate, and the money to arise from such sale was to be paid and distributed between such of the children of his sisters as might be living at the decease of his wife, and the issue of such of them as might be then dead, in equal shares and proportions; and it appears to me inasmuch as the words "between and amongst such of the children of his sisters" precede the gift of the whole, that those latter words, "in equal shares and proportions," must be taken as applicable to the issue. The words, then, are, "such issue only to take and be entitled to the share or shares which his, her, or their parent or parents would have been entitled to and taken if living." So that the children can all take equally, and the issue would take equally between them the shares which their parents would have taken. In the latter clause the testator seemed to think that those who might be in the character of issue of children would be those who survived the tenant for life. It appears to me that, in point of strength of meaning, the share of a deceased child was given to the issue of the child, and that such issue would take as tenants in common the share of the deceased parent. certain cases of fraud practised in obtaining probate, and in the spoliation of wills. The absence of a remedy for a supposed wrong in another place, is not by itself any reason for this Court assuming jurisdiction on the subject. The will of a sovereign of the realm (although he has not therein appointed an executor, and grant of probate or administration thereof has been refused by the Ecclesiastical Courts) forms no exception to the rule of the Court. Semble-The only and proper course to be pursued by the claimant of a legacy under the will of a deceased sovereign is by petition of right to the grace and favour of the reigning sovereign. The material statements of the bill will be found in the early part of the judgment of the Master of the Rolls. Mr. G. Turner and Mr. Elmsley, in support of the demurrer to the bill put in by the Duke of Wellington for want of equity, and for that the matters contained in the bill were not cognizable by the Court, contended, that as the legacy claimed by the bill became payable upon the death of King George III., in the year 1820, and there was no allegation in the bill of any acknowledgment of the right to the legacy, or of any payment of any part thereof, or of interest thereon having been made, the claim of the plaintiff was barred by the statute 3 & 4 Will. 4. c. 27. ss. 40, 43. Prior v. Horniblow, 2 You. & Col. Piggott v. Jefferson, 12 Sim. 26. Sheppard v. Duke, 9 Ibid. 567; s. c. 8 Law J. Rep. (N.s.) Chanc. 228; that the Statute of Limitations might be taken advantage of by demurrer— Hoare v. Peck, 6 Sim. 51; s. c. 2 Law 11 Law J. Rep. (N.s.) Chanc. 200; that an inability or incapacity to sue for want of a legal personal representative of King George III. ought not to prevent the due operation of the Statute of Limitations, inasmuch as the plaintiff might at any moment after the decease of King George III. have proceeded to enforce her claim by means of a petition of right, the remedy applying as well to real as personal estateStaunf. Prerog. c. 21, 22; that the authorities shewed that in the cases of royal wills, where no executor has been appointed, a party had been appointed to administer the estate (1); that this Court could not act on a will which had not been proved; and that royal wills had been proved was evidenced by the fact of the will of King Edward III. (2) having been proved, and the probate thereof deposited at Lambeth Palace; that the learned Judge who determined the case of Turner v. Lee (3) only decided there that he had no power to cite the Sovereign; that if the factum of the will of the Sovereign was not to be inquired into by the Ecclesiastical Court, why should it be inquired into by this Court which was a court of construction? The following were other cases also cited in support of the demurrer Lord Canterbury v. the Attorney Gen- 3 Black. Com. 256, 265. Dr. Addams, Dr. Bayford, Mr. Kindersley, Mr. Cockburn, Mr. Lovat, and Mr. Dowdeswell, in support of the bill, contended, that as the jurisdiction of the Ecclesiastical Court emanated from the Crown, it was unlikely that the Crown would submit its own will to the ordinary; that (with the exception of the case of the will of King Edward III.) the practice was against any grant of jurisdiction to the Ecclesiastical Court in the case of royal wills; that the statute 39 & 40 Geo. 3. c. 88. was passed for the purpose of rendering certain property of King George III. subject to his debts and legacies, in the same way as a subject's property, but was silent as to the probate of such a will; that the power to administer an estate was dependent on the right to grant probate of the will; that the statute 39 & 40 Geo. 3. c. 88. was a perfect nullity, unless it could be enforced in this (1) 4 Inst. 335. (2) Book of Royal Wills, p. 597, by Sir H. Nicolas. (3) 1 Add. 255. Court; that the Statute of Limitations could not come into operation in the present case until a party was found who was capable of being absolutely sued,—which circumstance did not occur till the year 1830, and the present claim, being for a legacy, could not be barred until the lapse of twenty years; that the fiat of the sovereign on a petition of right was given ex gratia, and therefore there was no power to sue during the lifetime of George IV.; that there was no instance to be found of a petition of right having been referred to the Ecclesiastical Court; that if a subject were in possession of property belonging to his late Majesty George IV., his successor (it must be presumed) would be able to recover it, and that the Court of Chancery would adapt its remedies to the state of the law, and aid the plaintiff in a case like the present. The following cases were cited in support of the bill. Murray v. 2 Black. Com. p. 494. Mr. G. Turner, in reply. The MASTER OF THE ROLLS.-This is a bill which states that his late Majesty King George III. made a will, dated the 2nd day of June, 1774, under his sign manual, and attested by three witnesses, and that such will was expressed as follows:"St. James's. George R. In case of our royal demise we give and bequeath to Olive, our brother of Cumberland's daughter, the sum of 15,000l., commanding our heirs and successors to pay the same privately to our said niece for her use, as a recompense for the misfortunes she may have known through her father. June the 2nd, 1774." The bill states the act, 39 & 40 Geo. 3. c. 88, which enacted that such personal estate of his Majesty as is therein mentioned should be deemed and taken to be subject to disposition by the King's last will under his sign manual, and should be liable for the payment of such debts as are therein mentioned, and, subject thereto, should go in the same manner on the demise of his Majesty as if the act had not been made. The bill further states that his late Majesty King George III. departed this life on the 29th of January 1820, without having revoked his alleged will, leaving Olive therein named, and who in this record is called Her Highness Olive Princess of Cumberland, him surviving; and that his late Majesty King George IV. was the heir and successor of King George III., and succeeded to his throne, and possessed such personal estate of King George III. as by the statute was made subject to his disposition by will, and more than sufficient to pay the legacy; and that the legacy was not paid. The bill then states that his late Majesty King George IV. died on the 26th of June 1830, having made a will whereby he appointed the defendant, his Grace the Duke of Wellington, and Sir William Knighton, Baronet, since deceased, executors thereof; that no probate of the same will has been granted or can be obtained out of the Prerogative Court of Canterbury; and that the defendant, the Duke of Wellington, is now the sole surviving executor of the will of King George IV., and has possessed his personal estate, including therein the personal estate of King George III., more than sufficient to pay the legacy claimed ; which, however, has not been paid. The bill then states that Her Highness Olive Princess of Cumberland died on the 21st of November 1834, having made a will, by which she specifically bequeathed the alleged legacy of 15,000l. and all interest accruing thereon to her executrix and executors; and she appointed the plaintiff, George Darling and Richard Done, and the defendant, John Primrose, executors of her will, which was proved by the plaintiff and the defendant, John Primrose, alone. The bill prays for an account of what is due to the plaintiff and defendant, John Primrose, for the legacy and interest thereon, and that the Duke of Wellington may be decreed to pay the amount, and if he shall not admit assets, that an account may be taken of the personal estate of King George IV. (including therein the personal estate of King George III., whereof his late Majesty King George IV. was possessed at the time of his decease) possessed by the Duke of Wellington or any person by his order or for his use, and for further relief. To this bill the Duke of Wellington has put in a general demurrer for want of equity, and for that the matters contained in the bill are not cognizable by this Court; and I am of opinion that the demurrer must be allowed. It is not denied that in ordinary cases this Court has no jurisdiction to determine upon the validity of a will of personal estate; and that in all cases in which parties apply to this Court for the construction of a will or for the payment of legacies under a will, the Court proceeds only on the foundation of a will proved in a court of competent jurisdiction. The present case is, as far as I know, the first instance in which an attempt has been made in this court to obtain a decree for the payment of a legacy under a will of personal estate not proved in the proper court. I do not think it is necessary, or that it would be useful, on this occasion, to trace the history of the jurisdiction exercised by other courts in the establishment of the validity of testamentary instruments, or the history of the jurisdiction of this Court in making decrees for the payment of debts and legacies, and for taking the accounts which are auxiliary to those objects. The Court does interfere for the protection of property pendente lite for probate and letters of administration, and does, perhaps sparingly, and with great caution, exercise some jurisdiction in some cases of fraud practised in obtaining probate or in the spoliation of wills; but relief under a will produced is given only in the cases where grants have been made of probate or of letters of administration; and unless there be something to take this case out of the common and ordinary rule, it is a sufficient objection to this bill that it seeks payment of a legacy under a will of personal estate, of which it alleges that there neither is nor can be any probate. I must, upon this record at least, treat the instrument upon which the claim is founded as a will or testamentary disposition. It is not (as was argued) a declaration of trust, or to be treated as a declaration of trust or appointment inter vivos. It was argued that, if no remedy can be obtained here, the law of England does not afford any remedy for an alleged wrong I may such as is stated on this record. observe that the absence of a remedy for a supposed wrong in another place, is not by itself any reason for this Court assuming a jurisdiction on the subject. The case must be such as to bring it properly within the jurisdiction of this Court on other grounds. But I apprehend that this case is not such that if a remedy here be refused, the party is necessarily deprived of all remedy. As regards his late Majesty King George the Fourth, the plaintiff's claim against him was for the non-performance of a personal duty involving his pecuniary interests. I know of no reason- certainly none was stated-why a petition of right might not have been presented, and am far from thinking that it is competent to the king, or rather, competent to his responsible advisers, to refuse capriciously, and without sufficient reason, to put into a due course of investigation any proper question raised on a petition of right. The form of the application, being as it should be to the grace and favour of the king, affords no foundation for any such suggestion; for that grace and favour must be shewn in due course when required for the purposes of justice. I conceive that if the lady, who on this record is called the Princess Olive of Cumberland, had a just claim against the personal estate of King George the Third in the hands of King George the Fourth, she might have brought forward her claim in the form of a petition of right, and the claim would have been put in a due course of investigation and determination in a proper manner, through the medium of the king's courts, to which it might have been so referred as to give the jurisdiction which otherwise they would not have. I do not think that the death of King George the Fourth, who made a will, and thereof appointed executors, made any difference in this respect. The claim is in respect of a duty which it is said ought to have been performed personally by King George the Fourth, and out of an estate in which the Queen, as the successor of George the Fourth, has, or may have, an interest which is not to be affected by the ordinary proceedings against her in her courts of justice; and if it be true, as it is alleged, that for such reasons as were stated in detail, no probate can be granted of the will of George the Fourth (of which he appointed executors) I think that the reason is equally good for saying that this Court has no inherent jurisdiction to decree the payment of debts by the executors of King George the Fourth out of his estate, or to take an account thereof. I am of opinion that there is nothing to take the case out of the general rule, which requires a will to be proved in the proper court before relief is given under it in this court. This Court has never exercised, and has no jurisdiction to exercise, any authority for the purpose of establishing wills of personal estate; and for these reasons, and without adverting to the very important arguments which were addressed to me at the hearing of this cause, I am of opinion that this demurrer must be allowed. i. END OF TRINITY TERM, 1846. NEW SERIES, XV.-CHANC. 30 |