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Blundell v. Gladstone.

or intended to treat, or to have them or one of them treated as if so held in trust. If he supposed that he held one of them on trust, or treated it as if so held and intended that it should be considered and treated as so held, and if it does not appear that he held or supposed that he held the other of them on any trust, it seems to me that the one which he supposed to be held on any trust, or treated as if so held, cannot be regarded as intended to be the subject of the devise to Mr. Robinson, and consequently the other estate may be deemed to be the one referred to in that devise.

The point to be determined is, whether the case furnishes the means of ascertaining with sufficient legal certainty, which of the two farms in Aughton the testator intended to give by the devise. The devise is expressed in general terms, unaccompanied by any words restrictive of their effect, and must, therefore, be taken to give the subject matter of the devise beneficially to the devisee. The estate is not described as a trust estate, neither is it given with a view that the trusts may be performed.

The inference from the terms of the devise, that the subject matter of it was not given upon trust nor intended to be subject to any trust, is strengthened by the difference in the structure and language of the two devises to which I have referred; and if it can be proved, or may be assumed, that the devise is to be construed to be beneficial, or, in other words, that the subject of it was given for the personal advantage of the devisee, it will, as before stated, follow, that if it can be ascertained that one of the farms in Aughton was subject to a trust, or that the testator desired or intended that it should be applied to purposes other than those which would be beneficial to the devisee, it must be inferred that that farm could not be intended to pass under a devise, the terms of which indicate that it was to be beneficially enjoyed by the devisee.

I will now state the facts which I think are sufficiently established on the part of the appellants. The two farms were purchased by Lady Anderton; the property derived from Lady Anderton became the subject of two settlements, but Shepherd's farm was expressly excepted out of these settlements. For what reason it was so excepted does not distinctly appear, but from the statement, in the declaration of trust and deed of covenant executed by Henry Blundell in 1793, it is highly probable, although it may not be established with legal certainty, that it was in fact subject to a trust, or at all events esteemed to be so, which precluded it from being at the disposal of those who could beneficially dispose of the remainder of Lady Anderton's property.

The testator derived the property in Aughton from Henry Blundell, and, is, therefore, affected by his acts and declarations while in possession of those estates, regarding the nature of his interest in them. Henry Blundell, as before stated, in 1793, executed a formal declaration of trust under hand and seal, by which he declared that Shepherd's farm had been ordered and directed by Lady Anderton to be held in trust for the Roman Catholic priest officiating in Lydiate, and that he, H. Blundell, held it upon that trust, and covenanted. to apply the proceeds accordingly.

Robinson v. Geldard.

It is further proved that in the rent books of Henry Blundell, Shepherd's farm was always inserted, accompanied with words importing that it was trust property; the expressions are various, as appears by the Master's report, but all to the same import; and further that the accounts in which the steward was charged with the receipt of the rent of this farm, contained a credit or entry as having paid the amount of the rent received to the Roman Catholic priest officiating in Lydiate. The same course was also pursued by the testator; that is, Shepherd's farm was treated as held, or at all events applied, as a trust for the Roman Catholic priest.

I consider, therefore, the evidence to establish that, throughout the lives of the testator's father and of himself, the proceeds of Shepherd's farm were paid to the Roman Catholic priest officiating in Lydiate. The evidence does not apply to each year during their lives, but to a sufficient number of years to furnish satisfactory evidence, notwithstanding occasional omissions, that the same course was pursued throughout their lives.

It is not perhaps a strong circumstance but is not altogether immaterial, that Shepherd's farm acquired by reputation the name of "The Priest's Land."

I am of opinion that the evidence I have stated establishes with sufficient legal certainty, that Shepherd's farm came to the testator, at all events as property subject to a trust, that he accepted and adopted such trust and applied the proceeds in conformity with the real or supposed trust, that he understood and intended to comprise it in the general devise of his trust estates, and that he did not intend the devise to Thomas Robinson of his farm in Aughton to apply to or comprise Shepherd's farm, and that, as he had no other farms in Aughton than Shepherd's and Molyneux, it follows that Molyneux farm was intended to pass by that devise.

For the reasons which I have given, the order of the Vice-Chancellor must be reversed, and it must be declared that Molyneux farm was intended to be devised to the Rev. Thomas Robinson, and that that estate lapsed in favor of the co-heirs of the testator. The costs will be paid out of the testator's estate.

ROBINSON V. GELDARD.1

June 14, 16, 25, 1851. February 26, 1852.

Will-Legacies, Payment of.

A testator bequeathed to the treasurer for the time being of the General Infirmary at Leeds the sum of 10,000l. to be raised and paid out of such part of his ready money, goods and personal effects as he could by law charge with the payment of the same; and he made

1 3 Macnaghten and Gordon, 735.

Robinson v. Geldard.

other charitable bequests in similar terms, besides a number of bequests to individuals given generally and not made payable out of any particular portion of his property. The testator's estate consisted partly of pure personalty and partly of personalty savoring of realty, the latter being more than sufficient for the payment of the general legacies: Held, (reversing a decision of the Vice-Chancellor, Knight Bruce, by which the charity legacies were directed to abate in the proportion which the personal estate savoring of realty bore to the whole personal estate, and without reference to the question of what was the precise character to be attributed to the charity legacies, but having regard only to the intention of the testator, to be gathered from the will,) that the general legacies ought to be paid out of the personalty savoring of realty, so as to leave the pure personalty for the payment of the charity legacies.

Held, also, though not as the ground of the decision, that in the present case the charity legacies were analogous to and had the same incidents as demonstrative legacies to individuals, except so far as regarded the right of satisfaction out of other assets than the fund out of which they were directed to be paid, a right from which they were debarred by the Stat. 9, Geo. 2, c. 36.

The cases of The Philanthropic Society v. Kemp, (4 Beav. 581,) and Sturge v. Dimsdale, (6 Beav. 462,) observed upon.

THOMAS CLAPHAM, by his will, dated the 2nd January, 1846, made the following charitable bequest in favor of the General Infirmary at Leeds: "I give and bequeath to the Treasurer for the time being of the General Infirmary at Leeds the sum of 10,000l., to be raised and paid out of such of my ready money, goods and personal effects, as I may or can by law charge with the payment of the same, which sum I declare and desire may be applied towards carrying on the charitable purposes of the said Infirmary."

The testator then gave in similar terms 10,000l. to the Yorkshire School for the Blind; 5,000l. to the Bath Hospital at Harrowgate; and 5,000l. to the Society instituted for the relief of the Widows Orphans and distressed families of the Clergy, within the rural deaneries of York and Craven, directing all these legacies to "be raised and paid in manner aforesaid."

The charity legacies thus given amounted to 30,000l. The testator also gave in general terms, and without specifying any particular fund out of which they were to be paid, 160l. to be invested for the use of the poor of the parish in which he resided; and legacies not charitable to the amount of 36,000l. The testator left personal estate amounting to 64,000l., consisting of 24,000, of pure personalty and 40,000l. of personalty savoring of realty.

The present suit being instituted for the administration of the testator's estate, and the accounts having been taken, a question was raised whether, after apportioning the debts, funeral and testamentary expenses, rateably among the different descriptions of personalty, the pure personalty should be applied in the first instance to the payment of the charity legacies, or whether the charity legacies must abate in the proportion that the testator's personal estate savoring of realty bore to the whole personal estate.

The cause having come on to be heard before the Vice-Chancellor KNIGHT BRUCE on the 14th July, 1849, his honor made a decree for the abatement of the charity legacies. From this decision the several charitable institutions, who, though not defendants in the suit, had appeared by consent at the hearing before the Vice-Chancellor, now appealed to the Lord Chancellor.

Robinson v. Geldard.

A report of the case, as heard before the Vice-Chancellor, will be found in the 3rd volume of Messrs. De Gex and Smale's Reports, page 499.

J. Parker, Malins and Borton, in support of the appeal. Admitting at once that the charities can have no right to share in the personal estate which savors of realty, we submit that the pure personalty ought to be reserved for the payment of their legacies. These legacies are in terms given specifically out of this fund, and should be treated for the present purpose as demonstrative legacies. The words used by the testator negative and render improper the application to this case of the general rule, that this court will not marshal assets in favor of a charity, for he has carefully guarded himself against any apparent intention to do an unlawful act, to defeat which was the object of the rule. The Vice-Chancellor was apparently in favor of the claim made by the charities, but felt disinclined to depart from what he considered to have been decided by the Master of the Rolls in the cases of The Philanthropic Society v. Kemp, 4 Beav. 581, and Sturge v. Dimsdale, 6 Beav. 462; a careful examination of these decisions however, shows, not only that they do not apply to the present cases, but also, that, so far as they go, they are favorable to the present appellants.

Walker, J. Russell and Willcock, for the residuary legatees, and in support of the decision of the Vice-Chancellor, contended that there was nothing in the will to give the charity legacies a right to any priority; that they could only obtain this priority by marshalling the testator's assets, and that the rule of the court was not to do this in favor of charities.

J. Parker, in reply.

The following cases were referred to in the course of the argument; first, as to the charitable legacies and the question of construction generally, Attorney-General v. Lord Weymouth, Amb. 20; Attorney-General v. Graves, Amb. 155; Attorney-General v. Tomkins, Amb. 216; Negus v. Coulter, Amb. 367; Waller v. Childs, Amb. 524; Attorney-Geueral v. Caldwell, Amb. 635; Arnold v. Chapman, 1 Ves. 108; Middleton v. Spicer, 1 Bro. C. C. 201; Howse v. Chapman, 4 Ves. 542; Paice v. The Archbishop of Canterbury, 14 Ves. 364; Curtis v. Hutton, 14 Ves. 537; Currie v. Pye, 17 Ves. 462; Cherry v. Mott, 1 Myl. & Cr. 123; secondly as to marshalling assets, AttorneyGeneral v. Tyndall, Amb. 614, 2 Eden, 207; Foster v. Blagden, Amb. 704; Hillyard v. Taylor, Amb. 113, Dick. 475; Mogg v. Hodges, 2 Ves. 52,1 Cox, 9; Foy v. Foy, 1 Cox, 163; Coleman v. Taylor, cited in Ridges v. Morrison, 1 Cox, 180; The Attorney-General v. The Earl of Winchelsea, 3 Bro. C. C. 373; s. c. nomine Attorney-General v. Hurst, 2 Cox, 364; Attorney-General v. Martin, mentioned 3 Bro. C. C. p. 377; Attorney-General v. Lord Mountmorris, Dick. 379; Makeham v. Hooper, 4 Bro. C. C. 153; Hobson v. Blackburn, 1 Keen, 273;

Robinson v. Geldard.

Crosbie v. The Mayor of Liverpool, 1 Russ. & M. 761 n; Fourdrin v. Gowdey, 3 Myl. & K. 383; and thirdly, as to specific and demonstrative legacies, Acton v. Acton, 1 Mer. 178; Fowler v. Willoughby, 2 S. & S. 354; Newbold v. Roadknight, 1 Russ. & M. 677; Roper on Legacies, vol. 1. p. 198, ed. 4; Williams on Executors, pp. 923, 928, 931, 1083, ed. 3.

[The LORD CHANCELLOR, on the point of the marshalling of assets, referred to Williams v. Kershaw, 1 Keen, 274 n.]

The LORD CHANCELLOR. In this case several charitable institutions have appealed, against the decree of the Vice-Chancellor Knight Bruce, on the ground that certain legacies bequeathed to them by the will of Thomas Clapham, are entitled to be paid out of his pure personalty in priority to some other legacies given to individuals.

The testator bequeathed to the treasurer for the time being of the General Infirmary at Leeds the sum of 10,000l., to be raised and paid out of such part of his ready money, goods and personal effects, as he could by law charge with the payment of the same, and he made other charitable bequests in similar terms, besides a number of bequests to individuals, not made payable out of any particular part of his property, but given without reference to any particular fund. His personal estate consisted of about 24,000l. of pure personalty, and of about 40,000l. personalty, savoring of realty; the charitable legacies amounted to 30,000l., exclusive of a legacy of 160l. to be invested for the poor of the parish in which he resided, which was given without reference to any particular fund, and the legacies to individuals amounted to 36,000l.; so that the entire personalty was insufficient to pay all the legacies by about 2,000l., but the personalty savoring of realty was more than sufficient to pay all the legacies to individuals by about 4,000l., although the pure personalty was insufficient to pay the charitable legacies by about 6,000l.

A suit was instituted to administer the testator's estate, and at the hearing it was contended, on behalf of the charities, that the legacies given to individuals ought to be paid out of the personalty savoring of realty, so as to leave the whole of the pure personalty for the payment of the charitable legacies so far as it would extend; and the Vice-Chancellor Knight Bruce, was apparently of opinion that on principle that mode of payment ought to be adopted, but in deference to two cases before Lord Langdale, The Philanthropic Society v. Kemp, 4 Beav. 581; and Sturge v. Dimsdale, 6 Beav. 462; which appeared to him to be authorities for the opposite course, he made a decree that the charitable legacies ought to abate in the proportion that the part of the testator's personal estate savoring of realty bears to the whole personal estate. Against this decree the charitable institutions have appealed; and I am of opinion that the appeal ought to be allowed.

However proper it might have been for the Vice-Chancellor to have deferred to the language used by Lord Langdale in the two cases which I have mentioned, the actual decisions in those cases do not govern the present case, and of course I should not be justified

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