M. R. 1870 W claimed, as trustee of the settlement of one of the co-heiresses, to be entitled to her share. It prayed a declaration that the devise SPRINGETT might be declared void, as being upon a secret and illegal trust. The Plaintiff entered into evidence in support of the allegations in the bill. v. JENINGS. The Defendants to the suit were Jenings, the solicitor of the said three devisees, the co-heiresses in gavelkind of the testatrix, the persons who represented those who were deceased, and the Attorney-General. The devisees admitted in the main the statements alleged in the bill, and one of them, Jesse Piper the elder, admitted that he had held frequent conversations with the testatrix on the subject of her wish to build and endow the hospital and almshouses; but they generally denied that the testatrix had ever made them or any of them promise, or that they or any of them had promised, or by silence implied, or induced the testatrix to suppose, that they would carry out her wishes or intentions with reference to the charity. They stated that they considered that the testatrix intended the lands to be at their absolute disposal, and that they so took them, but that, as she hoped and desired that they would voluntarily carry out her scheme, it was their intention to do so by all lawful means, if the Court should be of opinion that the devise was valid. There were two questions in the case: first, whether, upon the evidence in the case, the devise was void, on the ground of there being a secret trust for the purpose of the charity; and, secondly, whether, if such were the case, the lands in question passed to the Plaintiff, or were undisposed of? Mr. Southgate, Q.C., and Mr. G. W. Collins, for the Plaintiff We submit that, under the circumstances of this case, the devise was made by the testatrix on the understanding and with the full belief that the devisees would carry out her wishes with respect to the charity if she died within a year after the execution of the deed of the 17th of March, 1866; and that the devisees either promised, or by silence led her to believe, that they would carry out her wishes: it is, therefore, a case of a secret trust for charitable purposes, and the devise is accordingly void: Jones v. Badley (1); Russell v. Jackson (2); Wallgrave v. Tebbs (3); Carter v. Green (4); Tee v. Ferris (5). M. R. 1870 V.7 JENINGS. If the devise is void, we contend that the lands in question SPRINGETT passed to the Plaintiff under the words, "I devise the rest of my freehold hereditaments in the parish of Hawkhurst, and all my freehold hereditaments in the parishes of Ticehurst," &c., “to T. B. Springett." The case is governed by sect. 25 of the Wills Act (1 Vict. c. 26), which provides "that, unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law, or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will." Here, assuming the devise to be void, the lands must pass under the devise to the Plaintiff, which is tantamount to a residuary devise. In De Trafford v. Tempest (6), where there was a bequest to the testator's wife of certain chattels in or about his dwelling-house, and a bequest to his son of "all his chattels not thereinbefore otherwise disposed of in or about the said dwelling-house," and the wife predeceased the testator, it was held to be a particular residue of all the chattels in the house not otherwise sufficiently disposed of, and that the gift to the wife having lapsed the son was entitled to the chattels bequeathed to her. In Culsha v. Cheese (7), where a specific devise of certain estates was declared to be void, they were held to pass under the residuary devise. In Bernard v. Minshull (8), Evans v. Jones (9), and Carter v. Haswell (10), the question of what was included in a residuary clause was also considered. In Cogswell v. Armstrong (11), where there was a specific devise of real estate, and a devise of "all other real and personal estates of which the testator might die possessed," the words were held to be (1) Law Rep. 3 Eq. 635; Ibid. 3 Ch. 362. (2) 10 Hare, 204. (3) 2 K. & J. 313. (4) 3 Ibid. 591. (5) 2 Ibid. 357. (6) 21 Beav. 564. (8) Joh. 276. (9) 2 Coll. 516. (11) 2 K. & J. 227. M. R. 1870 63 SPRINGETT 2. JENINGS. a residuary devise within the meaning of the Act, and to pass the real estate of which the specific devise had lapsed. So in Green v. Dunn (1), where there was a lapsed devise, the estate was held to pass under the words, "all my hereditaments not hereinbefore devised." In Doe v. Walker (2), where a testator, by a will made before the new Wills Act came into operation, devised all his land at B. upon certain trusts, and by his codicil, made after the Wills Act came into operation, gave all his lands at B. to another trustee upon the same trusts, it was held that under the codicil, which republished the will, certain lands at B., purchased by the testator after the date of the codicil, were not undisposed of, but passed by the devise. Upon the principle of these cases, we contend that the gift of the rest of the testatrix's hereditaments at Hawkhurst comprised the lands of which the devise, assuming our contention to be correct, is now void. Sir R. Baggallay, Q.C., and Mr. Peck, for the Defendants, the three devisees: We admit that these Defendants were aware of the object of the testatrix, and that they intend now to carry that object out; but that is not sufficient to render void the devise. The true test to be applied in such cases is thus stated by Lord Cairns in Jones v. Badley (3): "The law applicable to the case being therefore free from doubt, we have to examine the facts for the purpose of ascertaining the answers to two questions: first, did the testatrix, so far as her own mind and intention were concerned, devise her residue to the Messrs. Badley in order that they might take, not beneficially, but as trustees for the accomplishment of some charitable purpose? and, secondly, if the first question is answered in the affirmative, was her mind and intention in this respect made known before her death to the Messrs. Badley, or either of them, or was the devise accepted by them, or either of them, expressly or tacitly, on this footing ?" The question then is, did the testatrix in the present case (1) 20 Beav. 6. communicate her intention to the devisees, or any of them? and Mr. Jessel, Q.C., and Mr. Hume, for the co-heiresses in gavelkind of the testatrix : Assuming that the devise in question is void in law, the lands therein comprised did not pass to the Plaintiff, but were undisposed of. The only section of the statute which has any application to this case is the 25th; and the question is, whether "the residuary devise" there mentioned means such a devise as the one to the Plaintiff of "the rest of my freehold hereditaments situate in the parish of Hawkhurst." The case of In re Brown's Trusts (1) is an express authority against the Plaintiff's contention. It was there held that an appointment by will of all other the hereditaments comprised in a settlement not thereinbefore disposed of was not residuary, but specific, and that certain void gifts to charities did not pass by it, but lapsed as unappointed. The cases relied on by the Plaintiff are distinguishable. In Green v. Dunn (2) the question was, whether the words " my freehold, copyhold, and leasehold hereditaments not herein before devised," which were far more general than those in the present will, constituted a residuary gift so as to include a lapsed devise; and your Lordship, while holding that it was a general residuary devise, observed (3): "I am unable to acquiesce in the argument which would treat these words as merely a short mode of describing the estates in various other places, the names of which were for brevity sake omitted "-shewing that, if similar words to those in the present will had been employed, your Lordship would have come to a different conclusion. In Cogswell v. Armstrong (4) the words "all other real and personal estate of which I may die possessed," were held to be a residuary devise within the 25th section—which we do not dispute, (1) 1 K. & J. 522. (3) 20 Beav. 11. M. R. 1870 SPRINGETT V. JENINGS. M. R. 1870 but it does not govern the present case. Evans v. Jones (1) only decided that when a certain bequest which was excepted out of SPRINGETT the residue failed, it then passed under the residuary gift, which was quite a different case from the present. In De Trafford v. Tempest (2) the question of the construction of the Wills Act did v. JENINGS. not arise. In Carter v. Haswell (3) the words were far more comprehensive than in the present case. None of the cases relied on by the Plaintiff's counsel are in conflict with the case of In re Brown's Trusts (4), which governs the construction to be put upon this will; and upon the authority of that decision, we submit that the gift was not a general residuary devise to the Plaintiff, but only a gift of the rest of her lands in the places named, which cannot pass those lands the devise of which is assumed to be void in law. Further, even if this was a residuary devise, we contend that “a contrary intention appeared by the will." Mr. E. Cutler, for other Defendants, supported the same contention, and referred to Gale v. Gale (5). Mr. F. T. White, for the Defendant Jenings. Mr. Wickens, for the Attorney-General. Mr. Southgate, in reply : In re Brown's Trusts was not properly a case under the Wills Act at all: Jarman on Wills (6); and Vice-Chancellor Wood said that the 25th section of the Act had no reference to it. This is a case of a particular residuary gift, and the observations of your Lordship in Green v. Dunn (7) are applicable to it: "In the case of land by force of the statute, and in the case of personal estate by long-settled law, if the property be disposed of by general terms instead of by particular enumeration, it includes not merely the property not previously disposed of at the date of the will, (1) 2 Coll. 516. (2) 21 Beav. 564. (4) 1 K. & J. 522. (5) 21 Beav. 349. (3) 26 L. J. (Ch.) 576. (6) 3rd Ed. vol. i. p. 653. (7) 20 Beav. 11. |