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am of opinion that this consequence, as a general effect, is contemplated in all cases of this description; that it is not the meaning of these Acts that such a matter should be allowed to stand in the way of such improvements. Whether these pilots would be entitled to any compensation when the amount of their loss, if any, is ascertained, is not the matter before me, nor are they parties to the cause; but it is clear to me that this circumstance has considerably affected the evidence, and that so far as regards the public, and the supply of merchandize by means of the river, a great advantage will be obtained if, as I infer from the evidence, the pier will be much used. On the general merits, therefore, I am of opinion that the public will be gainers. I also think it probable that if I am right in believing that the public generally will be gainers, the inhabitants of the city of Exeter itself will also be gainers. That the Corporation of Exeter may suffer some loss of pecuniary income may be possible, but nothing to this effect is proved.

I am clear that this pier does not interfere with or affect any property or privilege belonging to the corporation within the meaning of the Act of 1861, and consequently I am of opinion that the consent of the corporation was not required. Everything, in my opinion, has been done that ought to have been done, and the case of the corporation having been brought before the Board of Trade, and decided against the corporation, disposes of their claim except so far they might appeal to Parliament. They had this opportunity, they had the power to renew their opposition before Parliament, when the bill of 1864, confirming the provisional order, passed. They have not done so, or if they have they have failed, and the Legislature have passed the Act confirming the order of the Board of Trade, and that order has the force of an Act of Parliament, and, consequently, disposes of any claim on the part of the corporation. The consequence is that, in my opinion, the bill must be dismissed with costs.

Solicitors for the Plaintiffs: Messrs. Gregory, Rowcliffes, & Rawle, agents for Mr. W. Denis Moore, Exeter.

Solicitors for the Defendants: Messrs. Lake & Co.; Messrs. Sympson & Warner.

M. R.

1870

CORPORATION

OF EXETER

v.

EARL OF
DEVON.

V.-C. M. 1870 May 3, 4.

HAWKINS v. ALLEN.

Mortmain Act-Erection and Establishment of a Hospital-Acquisition of Land.

A lady gave a cheque for £5000 to the surgeon who attended her, to be laid out in the erection, establishment, and support of a hospital. The money was invested by the surgeon in consols in the names of himself and another as trustees, and both immediately afterwards executed a deed of trust declaring the objects of the gift. The declaration of trust was not made known to the donor, who died a few days after its execution :

Held, that the object of the gift did not exclude the acquisition of land; and that the donor having died within twelve months after the execution of the deed, the gift was invalid under the statute (9 Geo. 2, c. 36).

MISS

ISS SUSAN DELANCEY, late of Cheltenham, an elderly lady of large fortune, was attended during her last illness by the Plaintiff, Clement Hawkins, a surgeon, who frequently spoke to her of the necessity of having a fever hospital established in Cheltenham, and upon one occasion, in answer to a question put to him by Miss Delancey, he told her it would require about £3500 to carry out the project. To this Miss Delancey rejoined that it would be better to have enough, and she desired the Plaintiff to send her bankbook to Messrs. Drummond's bank to be made up, in order to ascertain if there was money enough of hers there to pay a cheque for £5000.

The Plaintiff, C. Hawkins, thereupon took the bank-book to the Plaintiff, W. H. Gwinnett, a solicitor, who was known to Miss Delancey, and informed him of what had passed, and, the same day, the bank-book was sent to Messrs. Drummond. W. H. Gwinnett also prepared a cheque for £5000 for Miss Delancey's signature. On the following day, the 25th of March, 1866, the bank-book was returned by post, from which it appeared that a cash balance of nearly £20,000 was standing to the credit of Miss Delancey at Messrs. Drummond's, and, upon the cheque being handed to her, she signed it, and, with her sanction, the cheque was sent up to a stockbroker in London, and the money was invested in the names of the Plaintiff and Mr. Gwinnett in £5738 Three per Cent. Consols.

It was then thought desirable by Mr. Gwinnett that he and the

Plaintiff, Mr. Hawkins, should both execute a declaration of trust of the fund so invested, and, accordingly, a deed-poll, dated the 3rd of April, 1866, was duly executed, whereby it was declared that the Plaintiff's stood possessed of, and interested in, the said sum of £5738, and the dividends thereof, for the purpose of the erection (after the decease of the said Susan Delancey), and the future maintenance and support, of a fever hospital. Miss Delancey was not aware of the execution of this deed-poll. She died on the 7th of April, 1866, a spinster and intestate, and the four Defendants were her only next of kin. Her personal estate was administered, and amounted to £120,000. The dividends upon the sum of £5738 consols had since been received and accumulated, and the fund now consisted of £6306 7s. 3d., standing in the names of the two Plaintiffs C. Hawkins and W. H. Gwinnett. All the next of kin of Miss Delancey, with the exception of one, were desirous that her wishes should be carried out, but the dissentient next of kin insisted upon the invalidity of the bequest.

The bill was therefore filed, praying that it might be declared whether a valid trust had been created of the aforesaid sum of £5000 for the establishment, support, and maintenance of a fever hospital at Cheltenham, and that the trust, if valid, might be performed and carried out under the direction of the Court.

The Plaintiffs alleged that they should be able to erect a fever hospital at or near Cheltenham with and out of the fund so given by Miss Delancey, without applying any part thereof in the purchase or acquisition of land, or any interest therein.

Mr. Osborne, Q.C., and Mr. Chapman Barber, for the Plaintiffs, the two trustees of the charitable donation :

This is not a charitable gift coming within the Statute of Mortmain (9 Geo. 2, c. 36). It was not a bequest by will, but a simple subscription for a charitable purpose during the life of the donor. Miss Delancey was a rich person, and, upon being told that a fever hospital was much wanted in the town, she gave £5000 for the purpose, just as a poorer person might have given £5. It would be absurd to suppose that every subscription of this nature would be void under the statute. She gave a cheque for the money, but it is the same as if she had handed over a £5 note to the

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surgeon.
2

V.-C. M.

1870

HAWKINS

2.

ALLEN.

V.-C. M.

1870

HAWKINS

v.

ALLEN.

It certainly was not given for the purpose of purchasing land, and there is evidence to shew that the trustees could acquire land for the erection of the hospital without applying any of this money for the purpose. The intention was the maintenance and support of the hospital; and a gift of this kind was held to be valid in the case of Attorney-General v. Williams (1), where the object was the establishment of a school. The money in this case was very properly laid out in the purchase of consols, and invested in the names of two gentlemen as trustees of the fund, and, in order to secure the fund for the benefit of the charity, they executed a declaration of trust. This, of itself, prevents the Court from interfering. It was a valid declaration of trust, and it would have been impossible for the donor, during her life, to have recovered the money back from the trustees. So, therefore, the representatives of the donor can be in no better position, and they cannot now recover it against the trustees.

Mr. Wickens, on behalf of the Crown, followed the same argument.

Mr. Cotton, Q.C., and Mr. Townsend, for the Defendants :

That this is a gift of money involving the purchase of land there can be no doubt, as it comes within the authority of several cases, such as Attorney-General v. Davies (2), and Pritchard v. Arbouin (3); and in In re Watmough's Trusts (4), a bequest of residuary estate to be given, used, or employed towards the erection of a chapel, was held to be void under the statute, there being no express provision against the acquisition of land. A hospital cannot be built without the acquisition of land to build it upon. The evidence is to the effect that Miss Delancey gave the money for the erection and establishment of the hospital, which includes the purchase of land, notwithstanding that the Plaintiffs might be able to acquire land for the purpose of erecting the hospital without using part of this money. The declaration of trust shews that the erection of the building was the object, and afterwards the maintenance. The trust deed also distinctly states that it was to be erected after

(1) 2 Cox, 387.
(2) 9 Ves. 535.

(3) 3 Russ. 456.
(4) Law Rep. 8 Eq. 272.

Miss Delancey's death, therefore it is the same as if given by will. If, however, it was a gift during life, then it comes within the words of the statute (9 Geo. 2, c. 36, s. 1), which declares that a gift for a charitable purpose will be void unless made by deed enrolled in the Court of Chancery within six months, and executed more than twelve months before the death of the donor. In the case of Price v. Hathaway (1), a similar gift was held to be invalid, because, although made by deed duly enrolled within six months, the donor died within twelve months after its execution. In this case the donor died within a fortnight after giving the cheque, therefore there can be no question of the invalidity of the gift. The declaration of trust will not assist the Plaintiffs, for, in AttorneyGeneral v. Ackland (2), where a sum of money was bequeathed upon trust to be laid out in land for charitable purposes, and the trustee purchased land, of which he took a conveyance to himself upon the trusts expressed in the will, it was held that the trustee could not by such means give effect indirectly to a bequest which was contrary to the Mortmain Act. In the case of Attorney-General v. Williams (3) the gift was sustained upon the express ground that, from the peculiar terms of the bequest, the possibility of applying any of the money towards the acquisition of land was excluded.

Mr. Osborne, in reply.

SIR R. MALINS, V.C.:—

The evidence as to the purpose for which this money was given by Miss Delancey, is, that she was told of the necessity there was for the establishment of a fever hospital at Cheltenham, and upon inquiring how much would be required for the purpose, she was told it would take about £3500, and she then said it would be better to have enough, and subsequently she signed a cheque for £5000, which was with her approbation invested in consols in the names of the two Plaintiffs. The only other evidence is the declaration of trust by which it is declared that the money was held for the purpose of the erection (after the decease of Miss Delancey), and the future maintenance and support, of a fever hospital. This (2) 1 Russ. & My. 243.

(1) 6 Madd. 304.

(3) 2 Cox, 387.

V.-C. M. 1870 HAWKINS

V.

ALLEN.

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