1839. The Attorney General v. The Fishmongers' Company. or then late in the tenure of Simon Mawe, fishmonger, which same yearly sum, rent or annuity the same wardens and commonalty had ther lately paid and yearly been accustomed to pay to the late abbess of the late monastery of Barking, in the county of Essex;(a) to have, hold, and enjoy all the rents therein mentioned and their appurtenances to the said Hinde, Turke and Blackwell, their heirs and assigns for ever, to their own proper use, without accounts, rent, service or other thing for the same to be rendered, paid or done. A statute of the 4 Jac. 1, c. 10,(b) afterwards passed, by which it was recited, that in times past, divers messuages and lands were devised, in fee simple, to the use of divers companies in the city of London, who for divers years had enjoyed the same, and employed them to the comfort of many good subjects, and great relief of the poor, and other good and charitable uses; that many of the same devises had theretofore been sought to be avoided, and the lands to be evicted, and the King to be entitled thereunto, as [*158] concealed or unjustly detained from him; yet his Majesty, taking knowledge of the several compositions made, and great sums of money thereupon paid for the same, both in the time of King Edward VI. and of Queen Elizabeth, and of the good and charitable employment of the said lands, and especially taking knowledge of the letters patent of King Edward VI., dated the 14th day of July, in the 4th year of his reign, whereby, in consideration of 18,744l. 11s. 2d., the King granted to Augustine Hinde, Richard Turke and William Blackwell and their heirs, divers rents, annuities, pensions and annual profits issuing or employed out of divers messuages and lands of several companies of the city of London therein stated, and, amongst others, of the warden and commonalty of the mystery of the Fishmongers; and that since such grant, questions had been moved, whether the rents mentioned in the grants, or the messuages and lands whereout those rents were mentioned in the same grant to be issuing or employed, were concealed or wrongfully detained from the Crown, and both for the one and the other divers compositions theretofore made: THEREFORE, for the taking away of all doubts and questions, the King, minding that the lands and hereditaments mentioned in the grant should be so assured and established, as that the same should remain and continue to the companies and their successors and assigns, and to their uses, trust and confidence for ever, was pleased that it should be enacted, and it was enacted by parliament, that all such messuages, lands, rents and hereditaments as had been theretofore devised to any of the said companies, and which lands, tenements, rents and hereditaments were mentioned or named in the letters patent of Edward VI., should and might for ever thereafter be lawfully held and retained by the said several companies for ever, against the King and his heirs and succes (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 bequest in the will of Sir Thomas Kueseworth. 1839.-The Attorney General v. The Fishmongers' Company. [*159] sors, without any rent, account or any other profit to them to be paid for the same, any defect in the letters patent notwithstanding; saving the rights of any person, other than the King, his heirs and successors, and those claiming under him or them, and not claiming under the companies. This information was filed in 1833, its object being, as has already been stated, to obtain a declaration that the estates were subject to the charitable trusts mentioned in the testator's will, and to have them carried into effect under the direction of the court. As to the various payments directed by the will, it was alleged by the relators, that all but one, which was for maintaining an anniversary and obit for ever, were for charitable uses, which ought to be carried into effect by this court, either pursuant to the directions of the will, or as near thereto as reasonably might be, having regard to the changes of circumstances which had taken place. On the other hand the defendants alleged, that of all the payments which the will directed to be made, one only, namely for the prisoners of Newgate and Ludgate, was for a purpose which could properly be considered as a charitable purpose; that all the other payments were directed to be made for superstitious uses, and that the only charitable purpose had been fully performed. The defendants further contended, that the sums directed to be applied to superstitious uses, or the lands out of which they issued, became vested in the Crown, under the statute 1 Ed. 6, c. 14, which passed in the year 1547; that by the letters patent, dated the 4th of July, 1550, which was in the fourth year of the reign of King Edward VI., the various sums directed to be so applied, and which had become vested in the Crown, were, for valuable consideration, granted by the King to [*160] the Fishmongers' Company; that by the grant *of these sums, it was intended to secure the lands out of which they were payable to the company; but doubts having arisen on the subject, the act of parliament had passed in the fourth year of King James I., by which those doubts were removed; and that the lands became absolutely vested in the company for their own use and benefit, subject only to the performance of that single charitable use, which, as they said, had been created by the will of Kneseworth, and which they had performed. The defendants admitted, that since these grants had been made, they had applied very considerable parts of the income derived from Kneseworth's estate to charitable purposes, more or less connected with or arising out of the purposes expressed in his will; but they said that they had done this, only out of a pious regard to the memory of Knese worth, and not from any obligation to which they were subjected. Mr. Temple, Mr. C. P. Cooper and Mr. O. Anderdon, in support of the information: All the trusts, including the obits, were good at the death of the testator, for even Henry VIII., by his will, instituted an obit at Windsor ;(a) some (a) Nicholl's Royal Wills. 1839.-The Attorney General v. The Fishmongers' Company. authority, subsequent to the death of the testator, must therefore be produced not only to invalidate the gift, but to show a title in the defendants; for trustees cannot set up the right of third parties to enable them to retain trust property adversely as against their cestui que trust. The statute of 1 Ed. 6, c. 14, is the only one which affects the validity of the gifts, and the question is, whether any of them come within the provisions of this *statute; for, as was observed by Sir W. Grant, in [161] Cary v. Abbot,(a) "there is no statute making superstitious uses void generally; the statute of Ed. 6, relates only to superstitious uses of a particular description then existing." The obits are the only bequests in this will which come within the express terms of that statute; all the other bequests are therefore good, valid and subsisting charitable trusts which ought to be carried into effect cy-pres by the court. If, however, the direction to pray for the testator's soul, though not within the statute, be deemed superstitious or contrary to the policy of the law, the effect would not be to vest the property in the Crown, or to destroy the bequests, but the fund would still be applicable cy-pres to charity; Attorney General v. Combe,(b) Attorney General v. Guise, (c) Brantham v. East Burgold,(d) Cary v. Abbott(a) With respect to the gift to the four priests, the act of the 1st Ed. 6, c. 14,(e) does not extend to the Universities of Cambridge and Oxford, but it gives the King the power of altering the name of the charities therein and the foundation of the same, (g) this gift, therefore, has never been forfeited to the Crown; and it may be assumed that the exhibitions, which it is admitted have since been supported by the Fishmongers' Company out of the rents of the Kneseworth estate, have in this manner been substituted for the four priests. As to the gift of 8d. a week to the thirteen poor men and women, it is of itself a good charitable gift, and must be executed unless it is invalidated by the direction that they should pray for the testator's soul; such *a direction to pray for souls is not contrary to the law; Hynshaw v. [*162] Morpeth Corporation, (h) and so it has been lately held in Mary Woolfrey's case before Sir Herbert Jenner; if, however, such prayers be considered superstitious, or contrary to the policy of the law, still as the primary object of the gift to these thirteen poor men and women was charity, and the ceremony to accorapany it was not the substantial part of the gift, but a mere accessory or secondary object, the charitable bequest will remain valid though the superstitious ceremony be void; Hart v. Brewer ;(i) The Dean of St. Paul's Case ;(k) it is clearly settled that property being once devoted to a charity which fails, is still applicable to charitable purposes; Attorney General v. Green.(1) The direction to lend the 100 marks is also valid, and the requirement that (a) 7 Ves. 494. (e) Sect. 19. (k) 4 Co. Rep. 103, a (b) 2 Cas. in Ch. 18. (c) 2 Vernon, 266. (1) 2 B. C. C. 492. (d) Cited in 2 Ves. jun 388. (i) Croke Eliz. 449. 1839.—The Attorney General v. The Fishmongers Company. the parties borrowing them shall say paternosters, &c., which are similar to the prayers of the Church of England, does not invalidate the gift. The letters patent of Queen Elizabeth professed only to grant the quit rents which belonged to the monasteries of Kilburn, Merton and Barking, which had become forfeited to the Crown on the dissolution of those monasteries and were held independent of the will of Sir Thomas Kneseworth, and the 53s. 4d., which, it may be assumed, was the amount expended in his obits for five years previous to the statute of Ed. 6; the statute confirmed to the company the right which the Crown had under the statute of Ed. 6, and the residue still remains applicable to charitable bequests. [*163] *The conduct and dealing of the defendants with this estate shows clearly that it is subject, even in their own opinion, to charitable trusts: they have kept separate accounts of the Kneseworth estate: they have constantly and uniformly applied the greatest part of it in charity: the chamberlain of London has attended the taking of accounts, as directed by the will and the breakfast has been provided. All this is consistent only with the property having been duly devoted to charity; and after such continued usage for a series of years, it may now be assumed either that the bequests, except for the obits, were not forfeited, or, if forfeited, that the Crown has allowed the company to retain the property, on the understanding that it should be applied to the good purposes pointed out by the testator's will. After such continued usage it is fair to assume a valid foundation of a charity; it may have happened that the superstitious ceremonies had not been performed for five years before the act, so as to bring the case within it, or if the case came within that statute, then that the property may have been devoted by the Crown to like charitable uses,—a conclusion which is warranted by the preamble of the statute Ed. 6, which had in view the conversion of the rents applied to superstitious uses to erecting grammar schools, &c., the makers of that statute never intending to overthrow works of charity, but to take away the abuse: Co. Lit. 342, a. Attorney General v. The Earl of Mansfield.(a) This view is also supported by the statute of James, which recites, as a consideration for the confirmation of the grants, that the rents had been employed by the company to "the comfort of many good subjects, and great relief of the poor, and other good and charitable uses." [*164] The Crown might even have allowed the property to remain under the control and management of the company, on the faith and understanding that the superstitious uses should cease, and that the property should be applied to the good charitable purposes of the will of Sir Thomas Kneseworth. That many charities are now so held, appears from the reports of the commissioners of charities. At all events, the company are only entitled to the amount of the specified bequests contained in the letters patent, which, by force of the act, were con (a) 2 Russell, 522. 1839. The Attorney General v. The Fishmongers' Company. verted into rent-charges, and to no proportionate increase; the general residue will then be applicable to charity, under the direction of the court. Mr. Pemberton and Mr. John Romilly, contra :-This is a case of extreme importance, because it not only questions directly the right to the large property particularly referred to in this information,(a) and involves the destruction of all the charitable purposes to which for centuries the greater part has been benevolently applied, but it challenges the title of the other companies of the city of London to the whole of the rents and estates included in the grant of Queen Elizabeth, and in the act of confirmation of King James the First. The defendants on their part insist that the whole of the gifts are superstitious, with the exception of that to the prisoners of Ludgate and Newgate, that such gifts and the lands out of which they issue have been granted to them, and they claim them beneficially, discharged of *any [*165] trust except the one before specified. If, however, the bequests should be held to be valid, then they claim the whole rents and profits, subject to the specific payments directed to be made, and the amount necessary for repairs. The will itself shows that the testator intended the Fishmongers' Company to take some part beneficially; the direction that they shall forfeit ten marks, to be levied out of the devised estates, if the account was not yearly made, and the gift over to the city of London in case the company made default in performance of the trust, are quite inconsistent with the notion that the company were to have no beneficial interest in the property; it would be absurd in the extreme to make trustees liable to a penalty for their own default, and to direct it to be satisfied out of the trust estate and at the expense of the charity. There are two cases only in which the court holds, by implication, a charity to be entitled to the whole increase of the income of the devised property: first, when the testator has in the commencement of his will expressly given the whole rents of his estate to a charity, and has subsequently apportioned out to charities sums which do not exhaust the whole income, in which case the court, in favor of a charity, and departing from its general rule that there is a resulting trust for the heir of all that which is undisposed of, holds that the whole income is applicable to charity; the second case is where, although the testator has not expressly devoted the whole income to charity, he has nevertheless given the whole amount of the income produced by the estates at the time the charity was created; where however there is a devise to a corporation or to individuals, subject to a particular payment to charities, the devisee takes the whole estate, sub- [*166] ject to the particular payments; The Attorney General v. The Cordwainers' Company.(b) So where the whole is given to charity, and certain particular sums are given to one charity and the surplus to another, the (a) Stated to be 78,7851. (b) 3 Myl. & K. 534. |