Blundell v. Gladstone.

building and about seventeen acres of land, then in the occupation of Richard Molyneux, as farmer thereof; that he, the said Henry Blundell, had also the custody of all the deeds, evidences, and writings relating to the title of the said estate; that the said estate was purchased in the year 1705 by the honorable Dame Margaret Anderton, then late of Loslock in the said county of Lancaster, widow, deceased, and by her designed and ordered for the benefit and advantage of such priest of the Roman Catholic religion who should officiate in the township of Lydiate in the said county of Lancaster; and that the said Henry Blundell was desirous that the clear rents, issues and produce of the said estate in Aughton should from time to time be paid to and be received by the priest of the Roman Catholic religion, officiating in Lydiate aforesaid, according to the intention of the said Dame Margaret Anderton; that it was then by the said deed witnessed, that, in consideration of the premises, and with a view towards permanently securing the benefit of such priest as aforesaid, and in consideration of five shillings, the said Henry Blundell did thereby testify and declare that he had not any right, title, interest, property, claim and demand, of, into, or out of the said estate, or any part thereof, for his own private use, advantage, benefit or behoof, but all and every the right, title and interest therein, which in any manner was vested in him, he had and held the same in trust, as to the said estate at Aughton, and the deeds and writings thereto belonging, for the benefit and advantage of the officiating Roman Catholic priest in Lydiate aforesaid for the time being, and to and for no other use or purpose whatsoever; and the said Henry Blundell thereby covenanted for himself, his heirs, executors, administrators and assigns, with the said testators, Charles Robert Blundell and Thomas Stanley Massey, their heirs and assigns, that he, his heirs, executors, administators and assigns would from time to time, and at all times thereafter forever, pay to the Roman Catholic priest for the time being officiating in Lydiate aforesaid, the yearly rents, issues and profits of the said estate in Aughton aforesaid, as the same should arise and come to his or their hands, after deducting the expenses of all needful and necessary repairs, taxes, assessments, and other out-goings, for the use of such priest, and that he, his heirs, executors, and administrators would, to the utmost of his and their power, promote and assist the said priest for the time being, in the receipt of the said clear rents and issues and profits of the said premises, and not in any manner retard, hinder or prevent their full enjoyment thereof.

And the Master found that Henry Blundell died in the year 1810, leaving one son only, Charles Robert Blundell, the testator; that the testator having suffered a recovery, became seized in fee of the hereditaments comprised in the last settlement; that in the rent books of the said Henry Blundell, subsequent to the year 1793, and also in the rent books of the testator, the rent of Shepherd's farm for a long period had some special note or description attached to it, and (among others) the following,-"The Priest of Lydiate," "As Trustee for Shepherd's,"" As trustee for the Priest estate," "Shepherd's, the Priest at Lydiate, "—"Shepherd's in trust, the Priest at Lydiate

Blundell v. Gladstone.

Hall," or similar words denoting the existence of some trust; that from the year 1822, to the year 1832, inclusive, with the exception only of the year 1828, there were contained in the rent books of the testator for that period, entries for rent received in respect of,"Waste land belonging to Shepherd's farm or the Priest's estate" "Waste land on Claves Hill, belonging to Priest's estate" "Waste land belonging to Priest's estate"-Waste land belonging to Shepherd's," "Waste land in trust;" that it was also stated, that in the cash book of James Fletcher, the steward or agent of the said Henry Blundell, containing rent accounts settled between and by the said James Fletcher and the said Henry Blundell, and signed as allowed by the said Henry Blundell, there were contained the following items as payments out of the rents credited, that is to say, "1808. June 29th. By Cash: Paid the Rev. Mr. Johnson, the sum due of Aughton estate after deducting his share of property tax, 31. 18s.-1809. February 9th. By ditto: ditto, the Rev. Mr. Johnson, for half a year's rent of Shepherd's in Aughton, 25l. -July 4th. By ditto: ditto, the Rev. Mr. Johnson, half a year's rent, deducting property tax, 221. 18s. 10d.:" - and that in the account of the said James Fletcher, subsequently to the death of the said Henry Blundell, as the steward and agent of the executors of the will of the said Henry Blundell, and signed and allowed by two of them, there were contained the following items, that is to say,-"1810. February 13. By Cash: Paid the Rev. Mr. Johnson, Lydiate, half year's rent of Shepherd's, deducting property tax, 27. 11s. 2d., 22l. 11s. 10d. — June 10. Rev. Mr. Johnson, half a year's rent, 251."

And the Master found that Mr. Tate, who was the Roman Catholic priest of Lydiate, from the year 1823, to the time of the decease of the testator, delivered to his executors an account, setting forth divers sums of money as rent received by the testator as trustee for the incumbent of Lydiate; that Mary Fletcher, daughter of the said James Fletcher, by an affidavit stated, that in the cash books of the said James Fletcher, there was an entry in the words following, "By cash paid the Rev. Mr. Johnson first half year's rent of Shepherd's in Aughton," and that an entry in the same words or to the same purport occurred each half year, from November, 1811, to the 6th May, 1818, and that such books of account were regularly examined and signed by the testator, Charles Robert Blundell, up to the month of March, 1834, when her said father finally settled his accounts; that the Rev. Robert Johnson was the officiating minister of the Roman Catholic Church at Lydiate for many years previously to the time when Mr. Tate became such minister, and continued to be so up to a short time previously to his death in 1823.

And the Master found that Ann Sephton, a person of the age of sixty-six years, deposed that a farm in Aughton, which appeared to be Shepherd's, was called, as long as she had known the parish, by the name of "The Priest's Land," and that she had often heard her mother and others say, that the said farm was considered to belong to the Roman Catholic priest for the time being of Lydiate.

And the Master found that the testator, at the time of making his

Blundell v. Gladstone.

will, had in Aughton a farm called Molyneux, containing about thirty acres of land, Cheshire measure, and that he was beneficially seized of or entitled thereto; and that he was in the receipt of the rents and profits of Shepherd's tenement and seventeen acres of land, Cheshire measure, situate in Aughton, and of certain waste land, and that the testator held the same in trust for the Roman Catholic priest for the time being of Lydiate, such trust having been created by Dame Margaret Anderton, and afterwards confirmed by Henry Blundell, the father of the testator, by the indenture of the 11th May, 1793.

On the 25th May, 1849, the present appellants presented a petition, praying that this report might be confirmed. On the previous day, Thomas Weld Blundell, the plaintiff in the present suit, presented a petition, praying that the report might not be confirmed, and that his petition might be considered as, or in the nature of, exceptions thereto, and that it might be declared that the farms and lands which the testator had in Aughton, were not held by him on any trust, or that it might be referred back to the Master to review his report, for the following reasons, - First, that there did not exist any evidence of any deed or instrument in writing having ever been made or signed by the said Dame Margaret Anderton, whereby she declared any trust of the said farm called Shepherd's, or the rents and profits thereof, for or for the benefit of the Roman Catholic priest for the time being officiating in Lydiate aforesaid, and that any declaration or creation of trust by her must, according to the provisions of the statute of frauds, have been manifested and proved by some writing signed by her or by her will, or else the same would be utterly void and of none effect;- Secondly, that no such declaration of trust in writing could or ought to be presumed, inasmuch as there was no fact in evidence on which to ground such presumption, and inasmuch as, having regard to the state of the law at that time touching Roman Catholic priests, professing the Roman Catholic religion, such declaration would have been for a superstitious and unlawful use; - Thirdly, that the indenture of the 11th May, 1793, in the said report mentioned to have been executed by the said Henry Blundell, the father of the said testator, raised an inference against any declaration of trust in writing having been signed by the said Dame Margaret Anderton, inasmuch as, if there had been any such declaration in writing by her, no further declaration in writing by the said Henry Blundell or any other party, would have been necessary, or would have been of any avail;- Fourthly, that the indenture of the 11th May, 1793, was not effectual for the purpose of declaring any trust of the said farm called Shepherd's, for the benefit of the Roman Catholic priest for the time being of Lydiate, inasmuch as such indenture was not enrolled in her Majesty's High Court of Chancery within six calendar months next after the execution thereof, according to the provisions of the Act of Parliament, 9 Geo. 2, for restraining the disposition of lands, and was therefore null and void;- Fifthly, that such indenture did not state any declaration of trust in writing to have been made or signed by the said Dame Margaret Anderton, nor furnish any evidence

Blundell v. Gladstone.

or presumption in favor of any such declaration of trust in writing by her; and Sixthly, that such indenture could not operate to confirm any trust in favor of the Roman Catholic priest for the time being of Lydiate, created or supposed to have been created by the said Dame Margaret Anderton, inasmuch as any trust created or supposed to have been created by her would have been null and void.

These two petitions came on to be heard before the late Vice-Chancellor of England on the 29th June, 1849; and, by an order of that date, his honor declared that the farm called Molyneux passed under the general devise contained in the will to the trustees and executors therein named, and that the petition of the 25th May, 1849, presented by the appellants for the confirmation of the Master's Report, should be dismissed.

From this decision the heirs at law now appealed to the Lord Chancellor.

J. Parker, Malins, and Fleming, for the appellants. The testator having only two farms in Aughton, Shepherd's and Molyneux, the Master has found that the former was subject to a valid trust in favor of a Roman Catholic priest, thus excluding the idea that that was the one devised to Mr. Robinson, and consequently showing that Molyneux was the one intended. The objections raised to the appellants' title are reduceable to three: First, the statute of frauds; secondly, that, in and previously to 1793, when the trust is said to have been created, a Roman Catholic could not have been the recipient of a charity; and, thirdly, that the deed of 1793 was not enrolled as required by the statute of mortmain. With respect to the first, it is clear that, although generally speaking, a trust of land cannot be declared by parol, yet an exception has been admitted in cases of wills, as where a devise has been obtained or prevented by the undertaking of the devisee or heir to do certain acts in favor of individuals. Stickling v. Aldridge, 9 Ves. 516; Paine v. Hall, 18 Ves. 475; Podmore v. Gunning, 5 Sim. 485. As to the second objection, the act 2 & 3 Will. 4, c. 115, having made all trusts in favor of Roman Catholics retrospectively valid, it is immaterial to discuss whether the trust here was previously valid or not. Bradshawe v. Tasker, 2 Myl. & K. 221; West v. Shuttleworth, 2 Myl. & K. 684. In reference to the third objection, the want of enrolment, it is to be observed that the statute of mortmain, 9 Geo. 2, c. 36, did not pass till after the death of Lady Anderton the settlor, so that if a trust was originally created it is not affected by that statute. It is also to be noticed that the object of the present investigation is not to pick holes in the title of the priest of Lydiate, but to construe the testator's will; and we submit that when the court finds a trustee, as here, admitting a trust, it will execute that trust. Attorney General v. Ward, 6 Hare, 477. Every devise of land, though in form residuary, is in its nature specific, Broome v. Monck, 10 Ves. 597; and in the present case the testator no more meant that the general legatee should have both these farms than that Mr. Robinson should have them. We

Blundell v. Gladstone.

further submit that the object to be ascertained, and which it was the intention of Lord Lyndhurst's order, in 1845, to ascertain, was, not` whether there was a valid trust which could be enforced, but of which of these farms it was that the testator considered himself to be the owner. It is to be remarked that the devise of the trust estates would be nugatory, unless Shepherd's farm was treated as being the subject of it, for that farm was in fact the only trust estate which the testator had. Again, the word "my" in a devise of estates is applicable to those belonging to a testator in his own right, and not to those over which he has a power of appointment. Napier v. Napier, 1 Sim. 28; Denn v. Roake, 5 B. & C. 720. (Upon the point of the admissibility and use to be made of extrinsic evidence, they referred to the fifth proposition in Wigram on Extrinsic Evidence in aid of the Interpretation of Wills, and to Blundell v. Gladstone, 1 Phil. 279.

Bethell, Bacon, Campbell, and Witham, for the respondents and in support of the decision of the Vice-Chancellor. The question must be treated as relating to a specific devise, the heirs at law here standing in the place of the alleged specific devisee. It is impossible from the statement in the Master's report to gather anything with certainty as to the existence of a trust previous to 1793. What we contend for is, that if Lady Anderton made a declaration of trust by parol, it was void under the statute of frauds; and whether she made it by parol or by deed, it was void under the laws in force against Roman Catholics. With regard to the enrolment required by the statute 9 Geo. 2, c. 36, it is an act which cannot be presumed. Doe v. Waterton, 3 B. & A. 149; Wright v. Smythies, 10 East, 409. All that is fairly deducible from Podmore v. Gunning, and that class of cases referred to on the other side is, that the statute of frauds is not to be permitted to be used as the instrument of fraud. It has been said that Lord Lyndhurst's order of reference directed it to be ascertained of what the testator supposed himself to be a trustee; but we submit that this was clearly not its meaning. We admit that it is competent for a party to adduce extrinsic evidence as to the proper meaning to be put on obscure language in a will, but no such evidence can be admitted to show what the testator intended. Wigram on Extrinsic Evidence in aid of the Interpretation of Wills, prop. 6.

[As bearing upon the question of legacies on charitable trusts, and the validity or otherwise of a trust in favor of a Roman Catholic priest, they referred to the following statutes and cases: 23 Hen. 8, c. 10; 1 Eliz. c. 1; 5 Eliz. c. 1; 27 Eliz. c. 2, ss. 3. 4; 11 & 12 Will. 3, c. 4, s. 4; 18 Geo. 3, c. 60; 31 Geo. 3, c. 32; Attorney General v. Gayner Jones, referred to in 1 Eden, 510, and 1 Cox, 17; and sub nomine, Gates and Jones's case, 2 Vern. 266; see also Journals of the House of Lords, vol. xiv. p. 560, (20th November, 1690,) and printed Cases in House of Lords, (Lincoln's Inn Library,) vol. i. p. 175; Martidale v. Martin, 1 Cro. Eliz. 288; Porter's Case, 1 Rep. 16, a. b.; Croft v. Evetts, Moore, 784; The King v. Lady Portington, 1 Salk. 162, 3 Salk. 334; Cary v. Abbot, 7 Ves. 490; Da Costa v. De Pas, 1 Amb. 228; Jenner v. Harper, 1 P. W. 247; Adlington v. Cann, 3