1840.-Dickenson v. Lord Holland.

I have read the cases: Christopherson v. Naylor and Butter v. Ommaney, which are, I think, clearly distinguishable. In Waugh v. Waugh there was a separate provision made by the will for the child excluded on the construction upon it; and I think that the authorities do not prevent me from putting upon the words the construction which they appear properly to bear.[1]

[*310]

1840 February 14.

*DICKENSON v. LORD HOLLAND.

Under a trust deed dated 1806, and which was to operate during the life of the grantor, the trustee, after the performance of certain trusts, was to pay the surplus rents to the owner during his life. The owner died in 1816, the trustee died in 1818; and in 1828 a bill for an account was filed by the representative of the former against the representatives of the latter. The answer was filed in the following year, but no further proceedings were taken in the suit until 1839, when the cause was set down and was heard in 1840: Held, that no such laches existed as to bar the account: Held also, that as regarded the lapse of time, the case was to be looked at in the same light now as at the filing of the bill.

THE plaintiff was the executor of the late Earl of Warwick, and the defendants were the legal personal representatives of the late Lord Ossory.

In 1806 the late Earl of Warwick executed a deed whereby he gave to the Earls of Galloway and Ossory power to receive the rents of certain of his estates, on certain trusts to pay the costs; and secondly, to pay the sum of 10007. a year to the late Earl of Warwick, and then to make other payments, and to pay the residue, if any, to the late Earl of Warwick; the deed was to continue in force during the life of the Earl of Warwick. The Earl of Galloway died soon after the date of this deed; the Earl of Warwick died in 1816; the Earl of Ossory lived until 1818; and in 1828 this bill was filed by the executor of the Earl of Warwick against the representatives of the Earl of Ossory for an account of the receipts under the deed of 1806, and of the application thereof.

The answer was filed in 1829, and no further proceedings were taken in the suit until January, 1839, when the cause was set down, and now came on for hearing.

Mr. Pemberton and Mr. Rogers asked for the usual decree for an account. Mr. Kindersley and Mr. Sidebottom, contra :-This bill calls for [*311] an account under a trust deed executed thirty-four years ago, twenty

four years after the death of the cestui que trust, twenty-two years after the death of the trustee, and twelve years after the bill filed and apparently abandoned. Although there is no statutable bar, yet, after the extreme

[1] As to substituted legatee, see further Le Jeune v. Le Jeune, 2 Keen, 701, 703, n. 1. Hustler v. Tillbrook, 9 Sim. 368, 371, n. 1. Wordsworth v. Wood, ante, 25. Gray v. Garman, 2 Hare, 268. 1 Russ. & M. 644, n. 1.

1840.-Dickenson v. Lord Holland.

degree of laches,--the want of the commonest diligence in prosecuting the suit, no decree ought now to be made. The court never assists a party who does not show reasonable diligence in bringing forward his claim; Hercy v. Dinwoody.(a) In Wood v. Briant, (b) the court refused an account against an administrator, durante minore ætate, after the expiration of twenty years from the testatrix's death. At this distance of time it must be assumed that nothing is due. If, however, a decree should be made, then in analogy to the action for mesne profits, the court will not give an account of rents and profits for more than six years: Reade v. Reade.(c)

Mr. Pemberton, in reply:-Time is no bar in this suit. Lord Ossory, a trustee, by his solicitors, acted ten years under the deed:-The only laches to be attributed to the plaintiff are the eleven years which occured between Lord Warwick's death and filing this bill; this is not sufficient to deprive him of his right to have an account which has never been delivered or settled.

THE MASTER OF THE ROLLS :-This bill was filed in August, 1828, and prays simply an account of all sums of money received on account of the rents of the estates comprised in the deed, and of the application of those moneys, the commonest sort of bill that could well be; and the plaintiff who represents the Earl of Warwick, the party entitled to the "sur- [*312] plus of the moneys after the performance of the other trusts, would be clearly entitled to the account; but it is said, there ought to be no account granted by reason of the laches of the plaintiff, and the length of time which has elapsed. The Earl of Warwick died in the year 1816: it is said he never made any complaint; the probability, therefore, is, that he duly received the allowance of 1000l. a year, but it is not even stated that any account was ever rendered to him or to his executors. Has it ever been held that the mere delay in making a demand for the twelve years from the expiration of the trust, or ten years after the death of the trustee, the accounting party, where no account has been rendered, and therefore no presumption of acquiescence exists, of itself constitutes a bar to a trust account? No such case has been cited, and I think no such case has ever occurred. The suit being instituted in 1828, was not prosecuted nor set down for hearing till the month of January, 1839. I certainly think there have been very great laches on both sides, very great laches in the plaintiff in not prosecuting this cause to a hearing and very great laches on the part of the defendants, in not procuring the bill to be dismissed. The cause, however, during the whole of that time has been in court, and I must therefore look at the matter as I should at the moment when the bill was filed, and regarding it in that light, I do not think that the plaintiff is barred from having an account. I ought to direct that the Master be at liberty to state special circumstances with a view of furnishing the ground, which possibly may be thereby afforded, of presuming the discharge of many of these matters.[1]

(a) 2 Ves. jun. 87.

(b) 2 Atk. 521.

(c) 5 Ves. 744.

[1] Vide 3 Myl. & Cr. 44, n. 1. 2 Keen, 749, n. 1, 750, n. 1. McKnight v. Taylor, 1 Howard, 161. Bertine v. Varian, 1 Edw. Ch. Rep. 346.

1840. The Attorney General v. The Ironmongers Company.

[*313] *ATTORNEY GENERAL v. THE IRONMONGERS' COMPANY. BETTON'S CHARITY.)

1840 February 12, 13, 14.

Bequest of residue to a company, to apply the interest of a moiety "unto the redemption of British slaves in Turkey or Barbary," one-fourth to charity schools in Loudon and its suburbs; and in consideration of the care and pains of the company, the remaining one-fourth towards necessitated decayed freemen of the company. There were no such British slaves to redeem, and a reference was made to the Master to approve of a scheme for the application of the fund thus unapplied, having regard to all the charitable bequests in the will: Held, that the application of the fund to the education of the British emancipated apprenticed negroes was not a cy-pres application; secondly, that the gift to the freemen of the company was a charitable bequest; and thirdly, there being no direct objects to which the income could be applied, regard being had to the bequest touching British captives, that the application of the fund to the second and third purposes was as near as could be to the intention of the testator, having regard to all the charitable bequests in the will.

Principles on which the court proceeds in the application of a charity fund cy-pres.

In an information by the Attorney General at the instance of a relator, the Attorney General ought not to appear otherwise than in support of the information.

As to the position of the Attorney General in informations at the instance of a relator, and the practice in such cases.

THE will of Thomas Betton, dated the 15th of February, 1723, contained the following residuary clause :-"I give and bequeath the rest and residue of my estate wheresoever and whatsoever to the Worshipful Company or Corporation of Ironmongers of the City of London, and to their successors, making them my executors upon this special trust and confidence in them reposed, that is to say, that they do with all convenient speed that may be after my decease, place my estate out at interest upon good securities, positively forbidding them to diminish the capital sum by giving away any part thereof, or that the interest and profit arising be applied to any other use or uses than hereafter mentioned, and directed, viz.. that they do pay one full half part of the said interest and profit of my whole estate, yearly and every year for ever unto the redemption of British Slaves in Turkey or

Barbury; one full fourth part of the said interest and profit yearly [*314] and every year for ever unto *charity schools in the city and suburbs

of London where the education is according to the Church of England, in which number that in this parish to be always included, and not giving to any one above 201. a year; and in consideration of the said Ironmongers' Company's care and pains in the execution of this my will, the other fourth part of the said interest and profit yearly and every year for ever to to the uses following: viz. 107. a year to such minister of the Church of England, as they shall from time to time entertain in their aforesaid hospital for performing divine service and other duties belonging to that holy order; the remains unto necessitated decayed freemen of the said company, their widows and children, not exceeding 107. a year to any family, but first deducting and paying quarterly out of this last named fourth part of the interest and profit

1840. The Attorney General v. The Ironmongers Company.

1007. a year in discharge of the annuity given to my kinswoman, Mrs. Eleanor Smith, during her natural life, and also always reserving sufficient for keeping my tomb in good repait."

For want of objects to whom to apply the moiety of the income of the testator's estate which he directed to be applied to the redemption of British slaves in Turkey or Barbary, a large fund, exceeding 100,000l. 3 per cents, had accumulated; besides this, the moiety of the annual income of the estates amounted to nearly 1000l. a year.

In 1829 this information was filed, for the purpose of having the fund applied to charitable purposes under the direction of the court.

In 1830 a decree was made, referring it to the Master to inquire if the income of the charity fund could be applied to the use contained in the will, and if not he was to consider what was the most proper appli- [*315] cation of the income of the moiety of the estates and of the accumulations, and to approve of a scheme accordingly, and he was to take the accounts.

The Master reported that it could not be applied to the use contained inthe will, there being no British subject held in slavery in Turkey or Barbary, and he approved of a scheme proposed by the Ironmongers Company, the effect of which was to appropriate the income towards the two other charitable purposes mentioned in the testator's will.

When the cause came on before Sir John Leach in 1833, he declared, "that the court had no jurisdiction to apply the surplus income of the moiety of the charity property in question in this cause and the accumulations thereof to any purpose inconsistent with the intentions of the said testator expressed as to the application of that moiety unto the redemption of British slaves in Turkey and Barbary; and he referred it back to the Master to settle and approve of a proper scheme to be submitted to Parliament for the application of the residue of the income of the said moiety, and the surplus of the accumulations thereof, and of the income of such surplus and accumulations."

Lord Brougham, L. C., however, on appeal, reversed this decision, and declared, "That the court had jurisdiction to apply the surplus income of the moiety of the charity property in question in this cause, and the accumulations thereof, as near as might be to the intention of the testator, having regard to the said bequest touching British captives, and also to the other charitable bequests in the said will;" and he remitted the cause to *be re-heard by the Master of the Rolls, on further directions on the [316] Master's report, on the footing of the declaration thereby made.(a)

The case then came before Sir C. C. Pepys, M. R., on the 20th of April, 1835, when some embarrassment was felt by all parties, and by the court, from the situation in which the cause had been left by the several orders, &c., made in it; and on the 1st of May, 1835, his Honor ordered, "That it be referred back to the Master to review his report of the 20th of July, 1833, as to the scheme thereby approved of for the application of the said surplus

(a) 2 Mylne & K. 576.

1840. The Attorney General v. The Ironmongers Company.

moiety of the charity property, and the accumulations thereof, and of the dividends and income thereof, having regard as near as might be to the intention of the said testator as to the bequest contained in his will touching British captives, and having regard also to the other charitable bequests in the said will."

The matter being thus remitted to the Master, the relator brought in a scheme proposing the distribution of the income of the fund amongst seventy charitable institutions of every description.

The scheme of the Ironmongers Company, as before, proposed its application to the two other charitable purposes mentioned in the testator's will; and a third scheme was proposed by the trustees of Lady Mico's charity for its application to the education of the apprenticed negroes and their issue. and for preparing teachers; and they founded their claim principally on the ground that a similar application had been sanctioned by the court in the [317] case of The Attorney General *v. Gibson, (a) of funds originally destined to the redemption of slaves.

(a) ATTORNEY GENERAL v. GIBSON.

Lady Mico, by her will, dated in 1670, gave and bequeathed the moiety of a sum of 20001. to redeem poor slaves, which she directed should be put out as her executors thought best for a yearly revenue to redeem some yearly.

In 1680, an information was exhibited by the Attorney General against Robinson and others, the executors of the testatrix, for the establishment of the charity; and by a decree, made in June, 1686, it was ordered that the 10001. should be laid out in the purchase of land, and the rents should be applied according to the directions of the will. The money was laid out, but the only part ever applied was 15001. South Sea Annuities, which in March, 1757, was paid to Sir Charles Wager for the redemption of pour captive slaves. In 1827, an information was filed against Gibson and others, the executors of Barker, a trustee of the fund; and by a decree dated the 7th of July. 1827, and an order of the 15th of November, 1827, varying it, it was referred to the Master to appoint new trustees, and to approve of a scheme for the application of the income of the charity property according to the will of the testatrix; or if he should find that the same could not be executed according to her will, then as near the intent of the will as could be, regard being had to the existing circumstances and to the amount of the fund.

There were accumulations of the charity fund, amounting to 115,5101. consols.

In January, 1834, the Master made his report, appointing Mr. Gibson, Dr. Lushington, Mr. Fowell Buxton and Mr. Barker trustees of the charity.

The Master by his general report, dated in July, 1835, after finding these facts, stated that the relators had laid before him a proposed scheme for applying the bank annuities, dividends and rents and profits to the enfranchisement of slaves in the British colonies who were too poor to purchase their own freedom; which application, in consequence of the act for the abolition of slavery, had becoine impracticable, but the relators conceived that it would be a proper application of the charity fund, and as near as might be to the intention of the testatrix, that the same should be applied in and towards the education of the apprentices in the British colonies lately emancipated by the said act and their issue; but in case the Master should be of opinion that the redemption of poor Christian slaves held in slavery in the states of Barbary was an application more immediately within the scope of the testatrix's meaning, then the relators stated circumstances to show that no such application had been for a lenth of time practicable; and the Master found, that in an interview between Mr. Fowell Buxton and the Colonial Secretary, the latter stated that the plans of government for the education of the apprentices and their issue were nearly matured, and proposed that the said charity funds should be applied by the trustees for a similar purpose; and that the relators and trustees had proposed a scheme which he had considered, and was of opinion that the testatrix