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1839. Cursham v. Newland.

difficulty in maintaining the certificate of the Common Pleas in this respect, the case was referred, in similar terms, for the opinion of the Judges of the

Court of Exchequer, who, on the 5th of June, 1838, certified as [*149] follows:-"We have heard this case *argued by counsel and considered it, and we are of opinion that the testator's son and daughters took estates for their respective lives, in remainder, after the death of the testator's widow, as tenants in common, in the freehold and copyhold lands devised by the residuary clause, with contingent remainders in their respective shares to their respective children by purchase, as tenants in common in tail, with cross-remainders in tail between such children in each respective share, with cross-remainders over in the whole of each of such shares respectively, on failures of all the children of any one son or daughter and their issue, to the survivors or survivor of the testator's sons or daughters for life, remainder in tail general to the children of such surviving son or daughter respectively, in like manner as in the original share given to such son or daughters respectively; and that the son and daughters and their children respectively took corresponding interests in the leaseholds by way of executory bequest." a)

The case now came before the Master of the Rolls upon this certificate, which, without argument, was confirmed with this addition, that it was admitted by counsel on both sides, and allowed by the court, that the word "survivors" was to be constructed as "others," and that the accruing shares were to be subject to the same limitations over as the original shares.(b)[1] Mr. Pemberton and Mr. Bird, for the plaintiffs.

Mr. Tinney and Mr. Teed, for the defendants.

[1] Vide Slade v. Parr, 1 Yo. & Coll. C. C. 565, 568, n. a. (a) 4 Mee. & W. 101.

(b) Extract from Decree :

Declare, that according to the intention of the said testator and the true construction of his will, the said plaintiffs and the defendants Richard Merricks and Elizabeth Buckton, the five children of the said testator, became entitled under such will, upon the death of the said testator's widow, Elizabeth Merricks, in the pleadings named to all the residuary freehold and copy hold estates of the said testator devised by his said will, for their respective lives, in equal shares, each taking an estate in one-fifth thereof for his or her life; with remainder as to such one-fifth, to his or her children, if more than one, as tenants in common in tail, with cross-remainders between or among such children in tail; and if but one, to such only child in tail; with remainder after the failure or determination of such estates tail, as to each fifth, to the survivors or survivor and others or other of the said five children of the said testator, in equal shares, such accruing share of each such survivor and other to be subject to the like limitations over expectant on the life estate of each such child, and also expectant on the failure of issue of each such child as his or her original fifth share, and the like estates and limitations over to extend to all shares surviving or accruing to any child of the testator, or the issue of any such child respectively, as hereinbefore declared as to the original fifth shares. And declare, that the said plaintiffs and defendants, the five children of the said testator, became entitled, on the death of the said testator's said widow, to the residuary leasehold and personal estate of the said testator, in equal fifth shares, for life, and that upon the death of each of the said children of the said testator, his or her one-fifth share of the said residuary leasehold and personal estate will belong to such of his or her child or children, as being sons shall attain the age of twenty-one years, or being daughters shall attain that age or marry, as tenants in common, if

1839. The Attorney General v. The Fishmongers' Company.

*THE ATTORNEY GENERAL V. THE FISHMONGERS' COMPANY. [151] (KNESEWORTH'S CHARITY.)

1839 January 18, 19, 21, 22, 23, November 9.

Establishments or foundations for securing prayers for the souls of the dead are deemed to be su perstitious, and within the statute of 1 Edw. 6, c. 14.

The court without deciding whether directions to pray for the souls of the dead were or not unlawful, or prohibited by the Church of England,) held, that it might be properly deemned superstitious to create an establishment, or endow a foundation, to be continued in perpetuity and conducted with certain ceremonies supposed to be religious, for the purpose of securing the perpetual continuance of prayers for the souls of the dead, either alone or in connection with other observances within the express terms of the 1 Edw. 6, c. 14.

A testator, who died in the year 1529, devised lands in the city of London to the Fishmongers' Company, to the intent that they should perform his will in manner after declared. He then provided for obits and anniversaries, without limiting any term within which the expenses thereof should be confined, and he willed that the company should provide four honest priests, studying in the universities, to pray for his soul there, paying to every of them 4l., quarterly; he next directed the company to provide thirteen poor men and women, being in poverty, to pray specially for his soul, &c., and he provided for a perpetual succession of such poor persons, and he directed the company to pay them 8d. weekly, and the poor persons were to attend the anniversaries or obits, and he made other similar bequests. The statute of 1 Ed. 6, c. 1, afterwards passed, and the Crown subsequently, for valuable consideration, by letters patent granted to trustees of the company a rent of 53s. 4d. a year issuing out of the lands, being the annual rent lately payable in respect of the testator's two anniversaries, (without mentioning any other rents. By a subsequent statute of 4 Jac. 1., all the lands, &c, mentioned in the letters patent of Edward VI were secured, as against the king and his successors, to the companies, saving the rights of any person other than the king: Held, that the bequests to pray for souls were superstitious under the statute of 1 Ed. 6, and that under the letters patent and act of parliament the company were entitled beneficially discharged of any trust.

THE object of this information was to have it declared that certain lands, devised to the Fishmongers' Company by the will of Sir Thomas Kneseworth, became and were now vested in the defendants upon and subject to the charitable trusts and purposes expressed by the same will, and that such trusts and purposes might be carried into effect under the directions of this court. The lands in question belonged to Sir Thomas Kneseworth, whose will was dated the 13th day of April, 1513, *being in the fourth year [*152] of the reign of King Henry VIII.

By that will. after describing the lands, tenements and property of which he was seised, he gave and bequeathed the same to the warden and commonalty of the Fishmongers' Company, and to their successors, to the intent that they and their successors should keep, fulfil and perform his will and intent, and every article thereof, in manner and form as thereafter was declared and specified. His first direction was, that part of the revenues should be applied

more than one, in equal shares; and that upon failure of such child or children as last aforesaid, such share will go over to the survivors or survivor and others or other of the said testator's five children, in equal shares, the share accruing to each such survivor and other to be subject to the same trusts and limitations over as the original shares, and such benefit of survivorship and accruer to extend to shares which have survived or accrued as well as to original shares.

1839. The Attorney General v. The Fishmongers' Company.

in repairing and, if required, rebuilding the premises, so and in such manner that the rents thereof should extend to so much money as should amount to the performance, payments and contentation of his legacies and bequests thereafter ensuing.

And after giving directions for obits and anniversaries, with various superstitious ceremonies attending the same, and without having limited any particular term within which the whole expense of the obits and anniversaries were to be confined, the testator proceeded to other directions and willed that the company should provide four honest priests studying in art or in divinity in the universities, to sing and pray there for ever specially for his soul, the soul of his wife, the souls of his father and mother, and of their benefactors, and all christian souls, paying to every of the said priests, for their salaries, 41. by equal quarterly payments; and he gave directions for maintaining a perpetual succession of such priests, and for securing the payment of their salaries. He next directed the company to provide thirteen poor honest men and women, being of good fame and in poverty, to pray specially for

his soul, and his wife's soul, and the souls aforesaid, and all christian [*153] souls; and he provided for a perpetual succession of such poor persons, and directed the company to pay every of them weekly the sum of 8d, and deliver to every of them yearly a certain quantity of cloth; and the poor persons were to be required to pray daily, and to attend to the anniversaries or obits.

After having thus provided prayers for the souls of those he mentioned, by four priests and thirteen poor men and women, he directed the company to pay to the prior aud convent of Roseton (Royston) every year 4l., by equal quarterly payments, on condition that the prior and convent there should find a priest to say mass in his church there every day, and the bell was to be rung; the priest was to have 34, part of the 41. given to the prior and convent, and was to pray for Thomas Kneseworth's soul at the altar, and to say de profundis for his soul and all christian souls; and the bellringer, for ringing the bell and assisting the priest, and was to have a noble, and the prior and conveut were to have the remaining two nobles, for performing the other ceremonies thereby directed.

The next direction in the will was for the payment yearly to Newgate and Ludgate of 40s., at the discretion of the wardens of the company, in such things as the prisoners there should have most need of.

The testator next directed the company to appoint a receiver of the rents, to oversee the repairs and buildings, and out of the rents to pay for the reparations and other charges, and to keep accounts; and the Chamberlain of London was to attend the taking of the account, and to receive 3s. 4d.; and on the occasion a breakfast was to be provided at the expense of 13s. 4d.; and the receiver was to have 40s. a year; and if the account was [*154] not yearly made, the wardens were to forfeit "in the name of a fine

1839. The Attorney General v. The Fishmongers' Company.

and pain for the default" 10 marks, to be levied of the rents of the devised estates, to the use of the city of London.

The testator then directed that all the rents above the charges and outgoings should be laid in a chest in the treasury house of the company, to the intent that the lands and messuages should be repaired and new builded. when need should be. He then directed that his executors should pay 100 marks to be kept in the treasury house, to the intent that the premises might be the better and truly performed, observed and kept. And he willed that every honest man of the company who would borrow 20 marks, or 10., of the same 100 marks, and of the money remaining of the rents for a half year's space, and lay a sufficient pledge into the treasury for the repayment thereof, and also say five paternosters and five aves and a crede for the testator's soul and the souls above said, should have delivered unto him by the wardens 20 marks, or 101. And upon repayment the same money might be re-lent, the party borrowing always saying at the time de profundis, or five paternosters, and five aves and a crede for the testator's soul and the souls above said. And in case the company of Fishmongers should make default in performing the trusts or any of them, the testator declared the gifts void, and gave the estates over to the city of London, to the intent that the trusts might be performed by them, except the lending any money, and except that the Fishmongers should have no profit of the aforesaid lands, &c., but by the discretion of the mayor and aldermen of the city.

The testator died in 1529, and the statute of the 1 Ed. 6, c. 14, afterwards passed, by which it was enacted,(a) that *the King should [*155] have and enjoy for ever all lands which by any assurance, will, devise or otherwise, at any time theretofore made, were given or to be employ ed wholly "to the finding or maintenance of any anniversary or obit or other like thing, intent or purpose, or of any light or lamp in any church or chapel, to have continuance for ever, which had been kept or maintained within five years next before the first day of that parliament ;" and also,(b) that where but part of the issues or revenues of any lands or hereditaments had been given or appointed to be bestowed or employed "to the finding or maintenance of any anniversary or obit or other like thing, intent or purpose, or of any light or lamp in any church or chapel, to have continuance for ever," that then the King should for ever have and enjoy every such sums of money that in any one year within the five years next before the first day of that parliament had been expended and bestowed, about the finding or maintenance of any such anniversary or obit or other like thing, intent or purpose, of any light or lamp, to him, his heirs and successors for ever, as a rent charge to be paid yearly, with power of distress and entry for default of payment.

After the passing of the statute of Edward VI. questions arose as to the

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1839. The Attorney General v. The Fishmongers' Company.

effect of it in particular cases: when gifts had been made to superstitions uses, it was often doubted whether the statute vested the land itself, or only particular annual payments as rent charges in the crown.

An arrangement took place between the Crown and the Fishmongers and the other companies of the city who were in similar circumstances, for the purchase, by the companies, of the rent charges to which the Crown [*156] *had or was supposed to have become entitled, for the sum of 18,744. 11s. 2d., and Augustine Hinde, Richard Turke and William Blackwell were appointed to carry that arrangement into effect; and by letters patent dated the 14th of July, 4th Edward VI., in consideration of the same sum of 18,7447. 11s. 2d. paid to the treasurer of the Court of Augmentations by Hinde, Turke and Blackwell, the King granted to them various rents, annuities and yearly sums issuing out of the lands belonging to several companies of the city of London, and amongst other companies, the warden and commonalty of the mystery of Fishmongers; amongst the rents, annuities and yearly sums issuing out of the lands and hereditaments of the Fishmongers' company were the following, viz., all that one rent, annuity or yearly sum of 53s. 4d. by the year issuing out of the two quays called Crown Quay and Greenberry's Quay, and out of nineteen messuages or tenements of the same wardens and commonalty, situate and being within the parish of St. Dustan in the East, London, and out of four tenements of the same warden and commonalty, situate and being within the parish of St. Margaret, Bridge Street, London, which same yearly sum, rent or annuity the same warden and commonalty had then lately paid and yearly been accustomed to pay towards the perpetual support of two anniversaries in the chapel called London, for the soul of Sir Thomas Kneseworth, Knight, late alderman of the city of London deceased; and all that one rent, annuity or yearly sum of 12s. by the year, issuing out of the same messuages and the quay called the Crown Quay aforesaid, in the parish of St. Dunstan in the East, London, which same yearly sum, rent or annuity the same wardens and commonalty had then lately paid and yearly been accustomed to pay to the late prioress of [*157] the late *monastery of Kilburne ;(a) and all that one rent, annuity

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or yearly sum of 10s. by the year issuing out of the same messuages and quay in the aforesaid parish of St. Dunstan in the East, London, which same yearly sum, rent or annuity the same wardens and commonalty had then lately paid and yearly been accustomed to pay to the late prior of the late monastery of Merton, in the county of Surrey ;(a) and all that one rent, annuity or yearly sum of 10s. by the year, issuing out of one messuage of the same wardens and commonalty, situate in Bridge Street, London, then

(a) These were, quit rents belonging to the dissolved monasteries and which had vested in the crown under the statute of 26 Hen. 8, c. 28, or the 31 Hen. 8, c. 13, and were unconnected with the bequests in the will of Sir Thomas Kneseworth.

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