1851.

THIS

Re HALL'S Charity.

HIS was a petition presented by two Justices of the Peace for the county of Worcester, under the authority of Sir Samuel Romilly's Act (a).

Jan. 29.
April 2.
May 7.

Charitable
gift to the use

of the reparation of the church of U., and to the use

of the repara

tion of the

bridge of U., and to the use

of other things

the parish of

The petition stated, that Edward Hall, formerly of Upton upon Severn in the county of Worcester, by feoffment, dated the 4th day of March, in the eighteenth year of the reign of Queen Elizabeth, with livery of needful within seisin, granted and enfeoffed to John Badger, Edmund Lechmere, and other persons, their heirs and assigns, certain hereditaments therein mentioned, to hold the same for ever to certain uses, in the Latin language expressed in the words and characters following, that

is to say :- "Ad opus et usũ repaciõis ecclie pochiał de

inpptum."

U., at the dis

cretion of the trustees, to be applied and distributed for that the disHeld, cretion applied to the

ever.

third branch only, and that jects took

the three ob

equally.

Under Sir

Samuel Ro

milly's Act,

declare the

Upton sup Sabrina p' et ad opus et usu repaciõis cujusdm pontis voc Upton Brydge et ad opus et usũ alio necessario infra pochia de Upton pa' de tempe in tempus fiend, p discretiõem pa' cofeoffat et hereď suoz et alioż pochianoż de Upton B aplicando et distribuendo And which being translated into English are to the the Court has purport or effect following, that is to say: "To the jurisdiction to use and behoof of the reparation of the parish church of proportions in Upton upon Severn aforesaid, and to the use and behoof of the reparation of a bridge called Upton Bridge, and to the use and behoof of other things needful within the parish of Upton aforesaid, from time to time to be done, at the discretion of the aforesaid co-feoffees and their heirs, and of other the parishioners of Upton aforesaid, to be applied and distributed for ever."

(a) 52 G. 3. c. 101.

I 2

which the jects are entitled, but not previous misapplication of amongst them.

charitable ob

to repair a

the funds

Effect of the authorities upon the construction of

It Sir Samuel

Romilly's Act.

1851.

In re HALL'S Charity.

It then stated, that some small sums of money had been, from time to time, down to the year 1839, expended or allowed by the trustees, out of the income of the charity, in or for the reparation of the Upton Bridge.

That since the year 1839, no part of the income of the charity property had been applied in or towards the reparation of the bridge, but the whole of such income accrued since the year 1839, except a cash balance now in the hands of the trustees, had been applied by them in or towards the reparation or rebuilding of the parish church of Upton, or in or towards other purposes within the parish of Upton, exclusive of the reparation of the bridge.

That the clear income of the said charity estates amounted to 90%. or thereabouts.

That the bridge was now in a dilapidated and unsafe condition, and a very large sum of money, amounting to several thousand pounds, was necessary to be immediately laid out, either in extensive reparations of or in rebuilding the same. That the county of Worcester was bound to repair or rebuild the bridge (as the case might require), and to bear the expenses thereof, so far as the same was not borne by the said charity.

It prayed, that it might be declared, that the cash balance now in the hands of the trustees, and one moiety of the income of the charity estates, and so much of the other moiety thereof as might not from time to time be needed for the reparation of the parish church of Upton, was applicable and ought to be applied in or towards defraying or reimbursing to the county of Worcester the expense of the necessary reparation or rebuilding

of

of the bridge. And that all proper directions might be given for insuring the proper application of such monies accordingly; or for a scheme for the application of the income of the charity estates.

Mr. Roupell and Mr. Amphlett, in support of the petition.

Mr. Lloyd and Mr. Younge, contrà, for the Trustees,

Mr. Roupell in reply,

The first question was, whether the Court could, in this case, give relief upon petition under the statute. As to this The Corporation of Ludlow v. Greenhouse (a), Ex parte Rees (b), and In the Matter of Dean Clarke's Charity (c), were cited.

Secondly, as to the construction of the deed, it being contended by the Petitioners, that there were three objects, each entitled to one-third of the income, and that the discretion of the co-feoffees was limited to the last, namely, to the application towards the "other things needful within the parish." On the other hand, the Respondents contended, that the discretion was applicable to every branch of the sentence, and that the trustees and parishioners, at their discretion, might apply the funds, exclusively, towards any of the objects. They contended, also, that under the 3 James 1. c. 24. and the 9 & 10 Vict. c. ccxci. s. ix., the burthen of rebuilding the bridge was thrown on the County, and that

1851.

In re HALL'S Charity.

1851.

In re HALL'S Charity.

that the deed only authorised a reparation and not a rebuilding of the bridge.

The MASTER of the ROLLS reserved his judgment.

The question is, whether the words at the end of the sentence per discretionem predictorum cofeoffatorum, &c. apply simply to the next preceding words ad opus et usum aliorum necessariorum, or are to be applied to the former parts of the sentence, ad opus et usum reparationis ecclesiæ et ad opus et usum reparationis pontis &c. Upon the best opinion that I can form on this deed, I certainly think that the true construction is, that those words at the end apply only to the third branch of the preceding sentence, and that the discretion of the feoffees and the other parishioners is restricted to the selection of the necessary and proper things within the parish, and to which the proper proportion is to be applied.

I concur in the argument that there are three distinct objects, each beginning ad opus et usum ; so that it is, in effect, 1st. Ad opus reparationis Ecclesiæ; 2ndly. Ad opus reparationis Pontis; 3rd. Ad opus aliorum necessariorum in Parochiâ. I think that the words, on a proper application of the principles of construction, import three distinct branches of the sentence; and as to the last only, the discretion is to be exercised. I have not come to this conclusion without some hesitation and doubt; but, on the whole, this appears to be the best and most proper construction. I am, therefore, of opinion, first, that the feoffees and parishioners have no right or discretion to neglect the repair of

the

the parish church or bridge, and to apply the income of the property exclusively to such things needful in the parish as they may think fit. If it were not intended to be imperative on the feoffees and parishioners to repair the church and bridge, why did the settlor specify those two objects? The construction contended for by the trustees, if they can reject those purposes whenever they think fit, would have the effect of making those words wholly inoperative at their discretion. I think, however, it is imperative on them to apply a certain part of the rents in the repair both of the church and bridge.

What portion ought to be so applied? I think that the whole income is applicable to the three purposes, and that it ought to be applied in equal shares and proportions; consequently one-third ought to be applied towards the repair of the church, one-third towards the repair of the bridge, and the remaining one-third for such purposes as the trustees of the charity and parishioners should think most needful: within the parish. The result, in my opinion, is, that I ought to declare this to be the true construction of the deed of feoffment.

I cannot make the order which is asked by the prayer of the petition, directing the present accumulation in the hands of the trustees and other sums to be paid to the county, until they shall be recouped for the exclusion of the bridge for past years. I think I have no jurisdiction, on this petition, to take accounts of the back rents, and make the trustees liable for any such misapplication as is asked for. The same reason would make it improper to direct the future rents to be applied to making good any former misapplication.

1851.

In re HALL'S Charity.