Oldalképek
PDF
ePub

1839. Robley v. Robley.

by the different codicils: they cited Bailie v. Butterfield, (a) Hodges [*100] v. Peacock,(b) Wray v. Field,(c) * Mackenzie v. Mackenzie,(d) Walson v. Reed,(e) Gordon v. Hoffman,(g) Guy v. Sharp, h) The Attorney General v. George.(i)

Mr. G. Richards and Mr. Sharpe for the executors.

July 10.-THE MASTER OF THE ROLLS:-The question argued in this case is, whether the gifts made by the testator, John Robley, in favor of his natural children, by several codicils annexed to his will, are cumulative, or whether upon the true construction of the codicils, the last gift is not to be taken in substitution for the former. [His Lordship stated the will, and the first, second and third codicils.]

It is to be observed, that by the first codicil, the annuity of 100l. was to be paid to the mother for the support and maintenance of the children during their minorities, and that the two Robley's (the brothers) and William Brassnell were trustees of the portions of 1000l., and had power to advance 2501. for each child out of its portion; and that the third codicil, although it purports to re-execute the first, takes no notice whatever of the provisions thereby made, for any of his natural children, or for the provision thereby made for Phillis Saida, if her name was then snbstituted for that of William in the first codicil, but proceeds, as if no previous provision had been made, to appoint guardians and trustees, and to give to Phillis Saida a specific legacy bearing interest, and other pecuniary legacies of greater amount than the legacies given by the first codicil.

[*101] *If we regard only the nature and amount of the legacies given by the two instruments, I think that the legacies given by the third codicil would not, according to the rules acted upon by this court, be considered as a substitution for the legacies given by the first codicil. The specific legacy of 15467., and the two further legacies of 1000l. and 40007. without power of advancement, would not I think be considered as a substitution for the reversionary value of three slaves and their increase, for the annuity of 1007. and for the legacy of 1000l. with power to advance 2501.; but cases of this kind are to be determined by presumptions, and we must look to all the circumstances.

When a testator makes distinct gifts by distinct codicils, the presumptions are that the gifts made by the subsequent codicils are additional to those made by the former, and that the testator when he made the last had not forgotten the former, and did not mean to make the last either in vain or in substitution for the former; but these are only presumptions, and they may be strengthened or rebutted by any circumstances which by just inference and presumption may enable us to ascertain what the intention of the testator really was. The nature of the legacies and the extent of interest in them

(a) 1 Cox, 392. (e) 5 Sim. 431,

(b) 3 Ves. 735.
(g) 7 Sim. 29.

(c) 2 Russ. 257.

() 1 Myl. & K. 589.

(d) 2 Russ. 262. (i) 8 Sim. 138.

1839. Robley v. Robley

which is given, are very material circumstances, but we must also regard the situation of the testator with respect to the persons for whom he is making provision, and the other directions which he may have given. This testator had placed himself in loco parentis with regard to the children of Eliza Mackenzie, and he was making provision for them as for his own children, and the fact his of having apppointed trustees and guardians with reference to the provision he was making by the third codicil, and omitted to notice the trustees which he had appointed by the first codicil, and the provisions thereby *made, cannot be immaterial in the consideration of the ques- [*102] tion, whether the two provisions were to be accumulative, or the last was to be taken in substitution for the first.[1] It is not probable that the testator intended to have at the same time one set of trustees for the provision made by the third codicil. and another set of trustees for a distinct sum of 1000. given by the first codicil,--that Mr. Cunningham and Mr. Smith should be guardians and trustees, whilst the power of advancing 2501. was vested in the two Robleys and Brassnell, and whilst under a positive direction in the first codicil, the mother was to receive the annuity of 1007. for the support and maintenance of the children.

[His Lordship stated the fourth codicil of the 18th of June, 1817, the birth of Sybil, and the fifth codicil of the 9th of January, 1819, and proceeded.] Upon this codicil it may be observed, that if we regard only the legacies and the interest in them which is given to the legatees, a legacy of 5000l., subject to be divested if the legatee should die before attaining twenty-one or marriage, would not be considered as a repetition of or substitution for two legacies of 1000l. and 40007. not subject to be.so divested, but the fifth codicil appears to make a complete and reasonable provision for the children; interest on the charges is to accrue from the time of the testator's death, and to be applied for the support and education of the children, and the legacies themselves, as soon as the executor may deem it convenient to the estate, are to be paid to the legatees on attaining twenty-one or marrying, and are only to be divested in case of death before twenty-one or marriage. This is in its nature reasonable, and the directions comprised in it, particularly that which orders the interest to be applied for the support and maintenance of the children in England or the United States, *are scarcely consistent [*103] with the co-existence of the direction in the first codicil, that the annuity of 1007. for the support and maintenance of the children should be paid to Eliza Mackenzie. It does, however, appear to me, that upon the construction of the first, second and fifth codicils, and having regard to the presumptions and indications of intention on which this court relies, the question would in this case have been very doubtful. But the case does not rest here:

[1] As to the effect of a person's placing himself in loco parentis, and the effect of that relationship, in regard to double portions,—a topic analogous, if not identical with the subject discussed in the text; see Powys v. Mansfield, 3 Myl. & Cr. 359. Pym v. Lockyer, 5 Myl. & Cr. 29. For a copious statement of the last cited case, see the Editor's note, 3 Myl. & Cr. 379, n. 1.

1839. Robley v. Robley.

another daughter, Clara, was born in the year 1821, and the sixth codicil is dated the 26th day of October in that year. In this codicil the testator expresses himself thus: [His Lordship stated that part of the codicil by which the testator confirmed and republished his will, and the several codicils stated to bear date in or about August, 1813, and in or about January, 1818, and proceeded.]

From this first passage and the uncertainty and inaccuracy with which the testator mentions the dates, it would seem that he had not the will and the codicils referred to before him at the time when this codicil was written, but from the fact appearing that the codicil of January, 1819, was re-executed on the day of the date of the sixth codicil, it seems clear that the codicil of the 9th of January, 1819, was the one referred to, and was before the testator at the time when the sixth codicil was executed. The codicil of August, 1813, removed Mr. Brooke from being an executor and trustee, and was important to be noticed when the will was republished and confirmed, but it did not mention the children. The codicil of the 9th of January, 1819, contained the particular provision I have mentioned, complete in itself, but so made and expressed as to make it doubtful whether that provision was all or only part of that which the testator intended the children to have; [*104] and the sixth codicil, after containing a devise not material on this occasion, proceeds as follows: [His Lordship stated the remainder

of the sixth codicil.]

And upon this codicil it appears to me, that the testator, referring to the provision which he has made for Phillis Saida by the fifth codicil, and thus expressly reciting that he has thereby sufficiently provided for her, makes his intention clear that he did not intend her to have that provision which in itself he considered sufficient, in addition to other provisions mentioned in former codicils to which he did not refer. Wishing to provide for his three natural daughters, and seeming to think, when the sixth codicil was written, that Phillis Saida only was provided for by the 5th, he refers to that codicil, recites that he thought the provision thereby made for her sufficient, and desires that Sybil and Clara may be in all respects made equal to her; and whatever doubts may arise upon the former codicils, I think that the sixth codicil sufficiently indicates, that the several gifts are not cumulative; and that Phillis Saida and Sybil are only entitled to the provision made for them by the fifth codicil.[1]

[1] When a legacy is to be deemed cumulative or substitutional, see further the cases cited by the Editor, 2 Russ. 275, n. 2.

1839. The Attorney General v. Shearman.

THE ATTORNEY GENERAL v. SHEARMAN.

1839: March 28, August 7.

This court has authority to exercise a discretion in charity cases; and where it appears that the prosecution of accounts and inquiries would not be beneficial but prejudicial to the interests of the charity, the court will refuse them. The court also discourages long and expensive litigation in charity cases for matters of small value.

THE facts of this case are stated in the judgment of the Master of the Rolls. Mr. Pemberton and Mr. O. Anderdon, for the relators contended that the lease stated in the judgment of the Master of the Rolls, [*105] though signed by a majority of the trustees, was a nullity, and that the rent was inadequate. They asked that the lease might be declared void, that a reference might be made to the Master for the appointment of new trustees, and that the representatives of John Shearman might be charged with the sums referred to in the judgment of the Master of the Rolls, and might pay the costs.

Mr. Barber and Mr. G Richards, contra.

Mr. C. P. Cooper, for Mr. Ward, one of the trustees.

August 7.-THE MASTER OF THE ROLLS-This is an information filed by the Attorney General, at the relation of James Hirrell Limmer and John Nicholls, against John Shearman and others, praying that the defendants John Shearman and his son, and such others as to the court might think proper, might be removed from being trustees of the charity estates in question; that in case of need, an account might be taken of the rents received by the defendants, and particularly by John Shearman; that it might be declared that John Shearman ought to account for moneys charged by him for land tax, repairs and other outgoings; that if the estate ought not to be vested in the churchwardens and overseers new trustees might be appointed; that a lease dated the 18th of August, 1826, might be declared to be invalid, and might be set aside and cancelled; that the defendants Isaac Last and Henry Last might pay 51. 12s. 6d. or such other annual sum, by way of increased rent, as might seem just; and for further relief.

*This cause came on to be heard before the present Lord Chan- [*106] cellor when he was Master of the Rolls, and on the 6th of June, 1835, he decreed, that as to the defendants Isaac Last and Henry Last, the information should be dismissed with costs; and that the information, except so far as it sought to have a scheme approved for the future management and application of the charity estate, should be dismissed as against all the other defendants, without costs; and he referred it to the Master, to approve of a proper scheme for the future management and application of the charity estates, and the rents and profits thereof.

The relators not being satisfied with this decree, presented a petition to VOL. II.

9

1839. The Attorney General v. Shearman.

have the cause re-heard at the Rolls; it would, I think, have been better if they had taken the case before the Lord Chancellor himself, as they had the opportunity of doing; but conceiving that they had a right to adopt the course they have done, I have considered the whole case.

The nature of the charity and the mode in which its funds have been ap plied, make it clear that a scheme must be provided for the future management and application of the property; and that part of the decree which di rects a reference for that purpose is not complained of.

A part of the charity estate consisted of a farm which, on the 4th of August, 1813, had been let to Isaac Last, for a term of fifteen years from Michaelmas 1812, at a rent of 521. a year.

It seems that some time before, or in the year 1826, the defendant John Shearman had, by some means, and, as it is said, by means of his connections

among the other trustees, acquired a great influence and ascendancy [*107] *in the management of the charity property; it is stated that he wished

to have all his own way, and would not submit to any control of the other trustees over whom he had not influence: this conduct, no doubt improper, very naturally gave offence to Mr. Ward, another trustee, who justly thought that he and the other trustees ought to be consulted in the management and application of the property. Under these circumstances disputes and quarrels arose.

In 1826, there were eleven trustees, John Shearman and his son George, two persons of the name of Chenery, William Darby, Francis Scotchmer, Mileson Edgar, John Ward, Freeston Howman, John Kerry, and another George Shearman.

John Shearman, being in the management of the property, about July, 1826, appears to have agreed to grant a new lease of the farm to Isaac Last and his son Henry Last; and Isaac Last, according to the evidence of Mr. French, the solicitor to the trustees, called on Mr. French, and at the request of John Shearman, as he stated, ordered Mr. French to prepare a lease, similar in every respect to the then subsisting lease, except that the name of Henry Last was to be added as joint lessee. Mr. French accordingly prepared the lease, and Henry Last called for it and took it away, as he said, to get it executed by the trustees; and the trustees having been called upon for the purpose, it appears to have been executed by John Shearman and George his son, by the two Chenerys and by Darby and Scotchmer: Mr. Ward refused to sign because he had not been consulted, and because he did not know on what terms it had been made; Kerry and George Shearman the

shopkeeper refused because Ward did, and Mr. Edgar and Mr. How[*108] man also refused; but the lease having been executed *by a majority of the trustees, the two Lasts have held the farm accordingly. Mr. Ward having been informed of the new lease, considered as to the means of setting it aside: a meeting of the dissentient trustees was held on the 9th of October, 1826; they acted as if the new lease were invalid, and

« ElőzőTovább »