was a gift to the Princess of St. Antimo and her children and their issue similar to the preceding, with an ultimate limitation in favour of the settlor. The deed contained a power for the Countess Zichy de Ferraris and the Princess St. Antimo to appoint all or any part of the 400l. a year to any husband for life, to take effect on her death, and to precede the trust for her children. The deed contained a power for the owner of the estate to exonerate it by payment of 10,000l. The sum was to be invested in land, and was to be conveyed upon the same trusts, and with, under, and subject to the same powers, provisions, &c., as those declared respecting the 400l. a year. This bill was filed to have the trusts of the legacy declared. Mr. Burge and Mr. Tripp, for the Plaintiff, contended that the Plaintiff was entitled for her separate use for life, with power to appoint to her children, and their issue, and to her husband, in the same way as was directed in favour of the Countess Zichy de Ferraris by the deed. They argued that these powers formed part of the benefits intended by the testator. (a) Mr. Gordon, for the children of the Plaintiff, argued that the Plaintiff had the power of appointing the fund to them. Mr. Simpson, for the Plaintiff's husband, contended, either that the Plaintiff took the fund absolutely, or with the several powers of appointment. (a) Phipson v. Turner, 9 Sim. 246. Mr. 1844. The Countess BERCHTOLDT v. The Marquis of HERTFORD. 1844. The Countess BERCHTOLDT v. The Marquis of HERTFORD. Mr. Kindersley and Mr. Schomberg, for the Marquis of Hertford. The Plaintiff takes a life interest only, and subject thereto, the Marquis, as residuary legatee, is absolutely entitled to the fund. The legacy is to be laid out "for the sole benefit" of the Plaintiff: this excludes the notion that any other party is to take a benefit. It does not, in any way, appear, that the husband or children were objects of the testator's bounty. The MASTER of the ROLLS. By the deed of 1833, the owner of the estate had the power of redeeming the charge of 400l. a year, on payment of 10,000l.; and this sum was to be laid out on lands to be settled to the same uses, and with the same powers &c., as the rent charge. It has been admitted, throughout the argument, that this redemption money is the sum referred to in the codicil by the description of the 10,000l." secured on my Birmingham property." If the rent charge had been redeemed, and the 10,000%.. thus secured, had been laid out as directed, what interest would the Countess Zichy de Ferraris have taken? She would have had a life interest, with a power to appoint to her children or their issue, and a power to give a life interest to her husband. In default of her appointing, there would also have been a distinct independent gift to her children, in conformity with the recital in the deed, of the settlor's intention to make a provision for her " and her issue." In the codicil nothing is said as to the children, but the legacy is to be laid out for the sole benefit of the Countess Berchtoldt, in the same manner, as nearly as may be, as the 10,000l. secured on the Birmingham property. Great stress has been laid on the word "sole;" and it has been argued, that because the legacy is to be settled for the legatee's "sole benefit," benefit," therefore any construction by means of which a beneficial interest may be taken by any other person must be excluded. No doubt the word "sole" must 1844. The Countess have its full effect and operation; but I am of opinion BERCHTOLDT that the effect of that word is not such as is contended for by the Defendant. The 10,000l. is to be laid out for the "sole benefit" of the Plaintiff, but " in the same manner," as nearly as may be, as the other 10,000%. secured on the Birmingham property. How was that settled for the benefit of the Plaintiff? She had a life interest with these powers. A life interest is surely improved by the addition of a power to appoint to a husband and children. I admit that there is no gift to the children, except through the power; but I am of opinion that the Plaintiff, in addition to her life interest, is entitled to a power of appointment over this legacy, in favour of her husband and children or their issue, with an ultimate limitation, in default of appointment, to the representatives of the settlor. I must declare so accordingly. The costs must be paid out of the testator's estate. v. The Marquis of HERTFORD. 1844. Feb. 17. 19. The ATTORNEY-GENERAL v. The CORPORATION of LEICESTER. An agent as- trust is per- clerk to re- stead of seeing THIS was an ex officio charity information filed by the Attorney-General against the corporation of Leicester, Mr. Burbidge, their former town clerk, and against the present trustees of one of the charities in question. It appeared that Sir Thomas White, Robert Heyrick, and John Parker had, many years back, made several benefactions to the corporation of Leicester, upon certain charitable trusts, by which they were, in effect, to employ the income in making loans to young men, repayable without interest, and, on repayment, the same sums were to be lent out again in a similar manner. The corporation had, accordingly, for a considerable period, lent out these monies on bond; and it had been the practice for the outgoing mayor to hand over the balance of the were liable for funds to his successor, together with the securities; but for some years previous to the passing of the Municipal Corporation Act (1835) the monies had been received by Mr. Burbidge, the town-clerk, and retained by him. trust, it is not, He, however, paid interest to the mayor for the time being for his own use. No money was then handed over by the outgoing mayor to his successor; but an accountable receipt was given by the former to the latter. the breach of trust. In a suit to remedy a breach of since the new orders, ne cessary to make every party participating in the breach of trust party to the suit. The corporation neglected to lend out the money according to the trust; and, at the passing of the Municipal Corporation Act, a large balance, alleged to amount to nearly 6000l., remained in the hands of Mr. Burbidge, the town-clerk. The new corporation ap pointed pointed a new town-clerk, and Mr. Burbidge claimed, under the act, a large compensation for the loss of his office, the amount, which he alleged he could not get settled, exceeded the sum due from him. It appeared that by deeds executed by Mr. Burbidge in 1836, reciting that he had a considerable balance of the charity funds in his hands, he, Burbidge, conveyed his rights to the compensation, by way of mortgage for securing the balance due from him to the charity. Mr. Twiss and Mr. Blunt, in support of the information, argued, that both the corporation and Burbidge were liable for the breach of trust; the former as direct trustees, neglecting their duty and permitting the trust funds to be misemployed; and the latter having, with knowledge of the trust, received the trust monies and misemployed them for his own benefit. Mr. Turner and Mr. Rolt, for the corporation, contended, that the corporation had not incurred any liability; that the receipt and misapplication was the individual act of the mayor, and not of the corporation. That the information was defective for want of parties, inasmuch as the several mayors of the borough who had participated in the alleged breaches of trust had not been made parties. Mr. James Parker, for Burbidge, contended that he was a mere agent of the corporation, and accountable only to his principal, and that he had a right to set off his claim for compensation against the monies for which he was accountable to them. Mr. Busk for the trustees of White's charity. VOL. VII. N Wilson 1844. The ATTORNEY. v. The Corporation of LEICESTER. |