1851. PETRE v. PETRE. Mr. Tripp and Mr. Rogers, for other parties, were not heard. The MASTER of the ROLLS. I think this case extremely clear. The sole question is, whether the testator intended that all the charges which might possibly fall on the fund he was disposing of should be borne by all the legatees in proportion, or should fall on the residue. The authority of Page v. Leapingwell applies where the testator disposes of an estate which he assumes will produce a given sum, or with an ascertained fund, in which cases it is indifferent, whether, after he has given certain portions, he specifies the remainder by stating its amount or by comprising it under the term "residue." But in this case, so far from knowing the amount of the fund, the testator could have no conception of it; for it was impossible to ascertain the amount until the fund had been realised by a sale, and the charges on it known. If in this case it appeared that the testator thought he was dealing with a sum of 71007. sterling, and he had divided it into different proportions, the loss would then fall on all the persons interested in proportion to their shares, although the last portion were called "the residue," but that is not the case here. It is admitted that, in suits for administration, the costs fall on the residue, and that principle must therefore be applied to this case. Regretting that the son takes nothing, I must hold that the whole deficiency must be borne by the residue. 1851. The ATTORNEY-GENERAL v. The WARDEN &c. of the LOUTH FREE SCHOOL. IN June 4. 24, The revenues of a charity grammar school having increased ten fold, the Court, on a vacancy, re N 1551, Edward VI., by letters patent, founded a grammar school in Louth, consisting of a master and usher, and he created a corporation consisting of a warden and six assistants, with "power to make, constitute, and ordain statutes and ordinances in writing, concerning and touching the order, governing, and strained the direction of the master and usher and scholars of the appointment school aforesaid, for the time being, and to exhibit master, until those statutes and ordinances, so reduced to writing, to been settled something had the Bishop of that diocese, and the same statutes and ordinances, signed by the aforesaid Bishop with his own hand, he willed and commanded should be inviolably observed for ever." For the maintenance of the school, he granted certain lands, then of the yearly value of 40%, and he willed that the schoolmaster should have 207. of the revenues yearly for his salary, and the usher 107. The charter then declared, that when the offices of master and usher should "be vacant, by death, resignation, or otherwise, then, within one month next ensuing such vacancy, the warden and six assistants should name. and present to the Bishop of Lincoln, for the time being, another fit and learned person, and they or he, by them as aforesaid so named, and admitted by the said Bishop for the time being, should be admitted to the execution of the office of master and usher for the term of life." of a new as to a new scheme. quently, to any future alterations to be directed by the Court. 1851. The ATTORNEYGENERAL v. The WARDEN, &c. of the LOUTH Free School. The charter also ordained, that the corporation for ever should "sustain, feed, and maintain," out of the revenues, twelve poor persons to continue for ever, in like manner and form as they were hitherto sustained, fed and maintained, by the late Guilds of St. Mary and of the Holy Trinity in the same town then dissolved. In 1728, an information was filed by the AttorneyGeneral, stating that the rental had increased to 1007. a year, and in a few years would be advanced to 1507. and praying that the improved rents might be disposed of as the Court might think fit. In 1729, a reference was made to the Master, to see what was the increase of the charity lands, and what increase should be made to the yearly stipends of the master and usher. The Master reported, that the net income should be divided into fourths, agreeable to the letters patent, and that two-fourths should be paid to the master, one-fourth to the usher, and the one-fourth to the twelve poor persons. Exceptions were taken on behalf of the twelve poor persons to this report, on the ground that the allowance to them was not sufficient, and that the salaries to the master and usher were more than sufficient. On the 11th of February 1729, the cause was heard before the Lord Chancellor on the exceptions, and on further directions, when it was ordered and adjudged, "that, after a deduction of all taxes, repairs, and other outgoings, and the costs of suit of all parties, the clear profits should be divided into fourths, whereof two-fourths should be paid to the master, one-fourth to the usher, and the other fourth to the twelve poor people, and it was decreed, that the improved rents for the future should go in the same proportions." The 1851. The ATTORNEYGENERAL The schoolmaster, who had held the office for about forty years, had just resigned; and on the 3rd of May 1851 the warden, &c. had given public notice, that the vacancy would take place on the 6th of July, and they had advertised for candidates for the office, and had The WARDEN, determined that the election should take place on the 5th of June next. A circular sent to the candidates stated, that the two masters were required to teach Greek, Latin, mathematics, writing, and arithmetic; and that the head master was entitled to two-fourths of the rents, amounting to about 500l. a year. This information was afterwards filed, praying a declaration that the scheme of 1729 was no longer applicable or sufficient for the beneficial disposition of the increased revenues, which now amounted to about 1150l. a year. It prayed a new scheme (without prejudice to the rights of the alms people under that decree), and that directions might be given for the introduction of other branches of learning, in addition to classical education, and as to head money, and for an injunction to restrain the appointment of a new master. A motion was now made for an injunction, and the affidavit made in support of it stated, that the school consisted of fifty-two free boys and thirteen boarders: -that the free boys received gratuitous instruction in Latin and Greek, but that the master had provided an assistant master for other matters of education, for which the sum of two guineas per annum was charged to every boy:-that a mere grammar-school was not suited to the wants and wishes of the inhabitants, who desired a more liberal and comprehensive system of education. It alleged that the present V. &c. of the LOUTH Free School. 1851. The ATTORNEY GENERAL v. The WARDEN, &c. of the LOUTH Free School. vacancy had given an opportunity, which ought not to be lost, of directing a proper and more beneficial administration of the funds; and that the Town Council of Louth had unanimously resolved, that it was desirable that the system of education in the said school should be authoritatively defined and enlarged, in accordance with the changes and requirements of society. Mr. Roupell and Mr. W. M. James, in support of the motion for an injunction, argued, that as the vacancy would not take place until the 6th of July, the election on the 5th of June would, by the terms of the charter, be premature:-that the great change in the circumstances and income of the charity rendered it necessary, that a new scheme should be approved of by the Court for the management of the school, so as to extend the system of education beyond mere classical instruction, as was done in The Attorney-General v. The Haberdashers' Company (a), and Attorney-General v. Dixie (b), in which cases, provision was made for giving instruction in writing and arithmetic. They argued, that the Court ought not to allow itself to be fettered by a precipitate appointment of a new master, who might hereafter insist that he was not bound by any new regulations, however necessary. Mr. Lloyd and Mr. Nalder, contrà, argued, that the charter having conferred on the Defendants the right of election to be exercised within a given time, and also a right to make ordinances for the government of the school, they ought not to be prevented exercising those rights by this Court; and that the pendency of this suit did not deprive them of such rights. That it would be very injurious to the interests of the school and to the present (a) 3 Russ. 530. (b) Ibid. 534. note. |