"AN ACCOMPT of the Product and Outgoings of all the things which I have bestowed on the Corporation of Southmolton, and the Free School I built there." OUTGOINGS. For the five trustees, 20s. per annum a piece, for their par ticular care in governing the school, in receiving their rents, in paying their high rent every year, and their accustomed fines, either at four or seven years, by which your estate will become perpetual, and the same as Mr. Hacche for the Sheaff of Southmolton To the schoolmaster of this free school, from the time of my death, per annum, only For their two usual feasts at visitation of school, per annum To the church of Windsor every year, for their high rents and For a fine of 157. once in every four years, and 3l. 17s. 10d., To the vicar of Northam and his successors for the time being, per annum Also to the executors of G. Whicher's almshouses in Westminster, per annum Balance which the Corporation of Southmolton will gain per annum "Excepting 137. 8s. per annum land tax, whilst that lasteth, and the poor's rate, whereof the tenant by his lease pays the moiety, if the taxes to church and poor do not abate somewhat thereof, but the Parliament do use to exempt Windsor schools and almshouses from taxes. But whatever the balance (de claro) proves to be, more or less, the half thereof is given every year to him that shall be Mr. Mayor in being, and the other half towards mending the highways in or near Southmolton, especially between Mole Bridge and the school house." "Item. I do desire the corporation, out of their 647. 7s. 94d., to pay for the children's pens, ink, and paper." titled to participate, in proportion, in the increased rents. 1851. The GENERAL บ. The case is like Attorney-General v. The Drapers' Company (a), where, of a rental of 100l. a year, ATTORNEY967. was given to charities, "and the residue of the said sum being 41. yearly to the Company for their pains," it was held, that all the objects were entitled rateably to the increased rents. They cited Attorney-General v. Christ's Hospital (b), Attorney-General v. Skinners' Company (c), AttorneyGeneral v. Mayor of Bristol (d). Mr. Walpole and Mr. Karslake, for the Corporation, argued that the whole "overplus," or "whatever the balance de claro proved to be," was payable to the Corporation; especially as the estate had been given to them "upon condition." The Attorney-General v. The Cordwainers' Company (e). They cited Jack v. Burnett (g), The Thetford School Case (h), Attorney-General v. Mayor of Bristol (i), Attorney-General v. Smythies (k), Attorney-General v. Grocers' Company (1). Mr. Roupell and Mr. Speed for the trustees. The MASTER of the ROLLS. This question depends upon (whether, according to the true construction of the testator's will, the estate was given upon trust or upon condition. It is to be observed (a) 4 Beavan, 67. (b) Ibid, 73. (c) 2 Russ. 435. (d) 2 Jac, & W.294. (e) 3 M. & K. 534. (g) 12 Clk. & Fin. 812. The Corporation of SOUTH MOLTON. 1851. The v. The Corporation of SOUTH MOLTON. observed that the mere use of the word "trust," or of the word "condition," would not by itself determine ATTORNEY- either that it is a trust or a condition. To take a very GENERAL ordinary and simple case; —suppose the estate had been given to the Corporation of Southmolton, on condition that they would divide the rents into four equal parts, of which they were to take one fourth. It is plain that, although the word "condition" were used, it would be "a trust" to divide the estate into fourths; and that any deficiency would fall upon the four parts, and any increase would belong to them in proportion. I therefore think that the mere use of the word "condition" does not decide the question. It is also to be observed, that the result of all the authorities is, that where an estate is given to a corporation, and out of the income, specified amounts are given to various charitable objects, which do not exhaust the whole, and the residue or surplus is given to the corporation, the Court infers, that such unascertained surplus of the income is the measure of the bounty which the testator intended the corporation to have for their own advantage, be that surplus little or great. Again, if the founder introduce a condition or clause of forfeiture upon the non-performance of the condition, it is then shewn, that he intended or expected that they would derive some benefit from the gift, and, therefore, in all cases where there is an unascertained income out of which the donees have to make certain payments, the Court infers, that as the estate was given to them upon condition of their making these fixed payments, they were themselves to take the benefit of the surplus, whether great or small. The case is much stronger, where it is expressly stated that they are to have the whole of the surplus. But 1851. The ATTORNEY GENERAL v. The of SOUTHMOLTON. But when a testator states the limit of his bounty to them, a different rule prevails; as when the testator says out of an income of a certain amount they are to have so much, and so much only, for the performance of their various duties. If it appear that the total amount of the gifts exhausts the whole stated income Corporation of the estate, then the Court holds, that the testator has parcelled out the income of the property in various pro portions: that he has not given an unascertained surplus to the persons who are to administer the charity, but has specified, exactly, the measure of his bounty to them; and if, in such case, there is a surplus, the different objects take the increased income, according to their relative amounts. Now apply these rules to the words of this will. It is true he uses the words " upon condition." He expressly says, "I give my estate to the corporation, provided and upon condition," that they pay the vicar of Northam 161. a year, and the other sums to the school &c., and then he proceeds, " and the overplus which Upcott and Northam do produce beyond and more than all these [disbursements] do amount to, which I find and compute to be about 60%. per annum, should go," half to the mayor of Southmolton and so on. If, after giving specific sums to the other objects, he had simply said, "I give one half of the overplus to the mayor of Southmolton, and the other half towards mending the highways," there could have been no question, but that the corporation would have taken the whole surplus after making the specific payments; but he proceeds to say, "which overplus I do find and compute to be about 60%. per annum." It does not rest there, although that by itself would have appeared to me to be very strong, for in the subsequent account of the produce and the outgoings of the property, which the testator has given, he specifies Bb 4 1851. The ATTORNEYGENERAL V. The Corporation of SOUTHMOLTON. specifies the amount of the revenue to be 1601., and on the other side, he expressly states how that 1607. is to be divided, and he gives to the corporation the "balance" of 641. 7s. 94d. 66 Again, if it had rested there, without the subsequent words added at the foot of the account, I should have thought that that was an apportionment of the whole rents of the estate, as specified in the opposite column, in the various proportions, between the various objects of his bounty, and that the corporation would simply take its apportioned part of the increased rents. To decide otherwise, would be to overrule the case of the Attorney-General v. The Drapers' Company (a). But the testator then goes on to state this :- excepting 137. 8s. per annum land tax, whilst that lasteth, and the poor's-rate, whereof the tenant by his lease pays the moiety, if the taxes to church and poor do not abate somewhat thereof, but the parliament do use to exempt Windsor schools and almshouses from taxes; but whatever the balance (de claro) proves to be, more or less, the half thereof is given every year to him that shall be Mr. Mayor in being, and the other half towards mending the highways, in or near Southmolton, especially between Mole Bridge and the school house." Now if at the end in specifying those various gifts to the persons other than the corporation, it had gone on to say, "but whatever the balance de claro proves to be, more or less," in that case there could be no question but that the corporation of Southmolton would have taken the whole of the surplus, and whatever increase might arise. So also, if it had stood without those words; but wherever you find a balance which is. (a) & Beavan, 67, |