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1833. aware of the existence of a school, this was a circum
stance which ought to have put them upon inquiry into ATTORNEY. General the origin of this payment. If an individual makes an The
annual payment for a particular purpose out of the Burgesses of profits of bis estate, it is reasonably to be presumed,
from the strong interest which he has to resist an unfounded demand, that he has inquired into the origin of the claim, and he is therefore fixed with implied notice of all the circumstances which attend it. But the same presumption does not apply to corporators, because, having no immediate personal interest in the application of the profits of the corporate property, they may, without the imputation of culpable negligence, adopt and follow the practice of their predecessors in this respect. I cannot, therefore, hold that the fact of the existence of the school, and the payment to the schoolmasters, does fix the corporation with implied notice of the several grants and devises made in favour of the school.
In the year 1656, this corporation alienated some part of the property devised to them for charitable purposes, for money which they applied to their own use; and it cannot be denied that this transaction, at the time, was a wilful breach of trust. In the years 1805 and 1806, they alienated other small parts of the property devised to them for charitable purposes, in ignorance of the fact that it was so devised to them.
For all these alienations they must make compens. ation out of the general corporate property; for this is necessary in order to give effect in future to the intention of the donor : and there must be a reference to the Master to inquire what is the present value of the charity funds so alienated in 1656 ; and if the Master shall find that any substantial improvements have since
the alienation been made upon those lands, let him state 1833. the nature of those improvements, and any special cir
ATTORNEYcumstances relating to them. With respect to the GENERAL alienations made in the years 1805 and 1806, the At
The torney-General being willing to accept the sums pro- Burgesses of
EAST duced upon such alienations, with interest at 5 per cent.
RETFORD. from the time when the sums were respectively received, let the corporation account for the same accordingly.
In stating that the corporators are to be answerable out of their general property, I mean out of such property as was not granted to them upon any special trust. The charities cannot be permitted to receive compensation for the breaches of trust committed with respect to their estates out of property devoted by the donors to other special purposes. It must, therefore, be referred to the Master, to inquire what real and personal property the corporation were possessed of or entitled to, at the time of filing the information, and are now possessed of or entitled to, which was not granted or devised to the corporation upon any special trust; with liberty to state any special circumstances respecting such property, at the request of either party. And if the Master shall find that the corporation have alienated any real or personal property between the time of filing the information and the time of his inquiry, let him state all the circumstances respecting such alienation. This inquiry I direct in consequence of the suggestion at the bar, that there is reason to suspect that an attempt has been made to defeat the object of this information.
With regard to the costs of the suit, it is to be observed, that the corporation in their answer state their utter ignorance of the charity property, and of the trusts which attended upon it, and leave the Attorney
1833. General to make out the allegations of the information
as he may be able. They are required to set forth a ATTORNEY GENERAL schedule of all their deeds, papers, and muniments, and
such schedule they have accordingly set forth; and it · Burgesses of is from the deeds, papers, and muniments, set forth in
the schedule, that all the knowledge possessed by the informant with respect to this charity property has been obtained. As the corporation were fully apprised, by the information, of the nature and extent of the claims made upon them, it was their bounden duty, before they put in their answer, to have caused every deed, paper, and muniment in their possession or power to be diligently examined, and to have given in their answer all the information which resulted from such examination. The very opposite course pursued by them in that respect manifests a disposition to obstruct and resist the course of justice, which alone, without reference to other parts of their conduct in the cause which are suggested to have been vexatious, would make it the duty of the Court to charge them with all the costs of the suit; and not only the costs of the Attorney-General, but the costs also of the schoolmaster and the usher, who are made parties Defendants. The claim of these last-named Defendants upon the income of the charity cannot well be considered until the extent of the charity property has been ascertained by the Master's report: let the petition of the schoolmaster in that respect stand over, and reserve the consideration of all further directions until that report has been made.
WAUGH v. WAUGH.
ROLLS. June 28.
A PART of the will of John Neill was in the A testator following words :- " I further give and bequeath gave a
5000l. in the unto my said executors 50001. 3 per cent. consolidated event of the
death of his bank annuities as a general, and not as a specific legacy,
101 as a specimo legacyo nephew J, W. upon the trusts following; that is to say, upon trust to without leavpay to my nephew John Waugh, or to his assigns, the be equally
ing issue, to dividends arising therefrom during his life, and, after his divided among
all the brodecease, to hold the principal in trust for all his children thers and who shall survive him, and the issue then living of sisters of J.
W.whoshould any of his children who shall have departed this life be living at before him, leaving issue, equally to be divided among
'8 death, and the them, share and share alike; but so that the issue of any children then
h living of any deceased child shall take only the share which such of his brother, child would have taken if living, to be divided equally and sisters
who should among such issue; and in case there shall be no child have preof the said John Waugh, nor any issue of a deceased viously de
parted this child, living at the time of the decease of the said John life, but so
L ind that the Waugh, then I direct my said executors to hold the said
said children of principal stock in trust for all the brothers and sisters such deceased
brother and of my said nephew John Waugh who shall be living at sister the time of his death, and the children then living of take only the
share which any of his brothers and sisters who shall have previously their parent departed this life, equally to be divided amongst such w
taken if living: brothers and sisters and children ; but so nevertheless Held, that a that the children of such deceased brother and sister
visto child of a broshall take only the share which their parent would have which brother
was dead at taken, if living, which shall be equally divided among the maki such children.”
the will, took no share of
the 5000l. In a subsequent part of his will the testator gave a legacy of 3000l. stock to the Plaintiff Eleanor Waugh
and her children, describing Eleanor Waugh as the daughter of his late nephew Alexander Waugh, who was a brother of the testator's nephew John Waugh.
The testator's nephew John Waugh died without leaving any child or any issue of a deceased child; and a question in the cause was, whether the above-mentioned Eleanor Waugh, who was living at the death of John Waugh, was entitled to share in the 5000l. stock as a child of a brother of John Waugh, who had previously departed this life.
Mr. Pemberton for the Plaintiff.
There is here a substantive gift, in the event which has happened, to two classes of persons; namely, brothers and sisters of John Waugh living at his death, and children living at the death of John Waugh of any of his brothers and sisters who should have previously departed this life. The Plaintiff indisputably comes within the latter class; and, if she is not entitled to any benefit under this bequest, she can only be excluded by the effect of the subsequent words, which limit the shares of children of deceased brothers and sisters to such as their parents would have taken if living. There is nothing in those words which necessarily cuts down the generality of the previous description of the class intended to take, so as to exclude the daughter of a brother of John Waugh, who died before the date of the will. The plain object of the clause annexed to the gift is, not to limit the number of takers falling within the class previously described, but to fix the amount of their shares, by providing that the children of deceased brothers and sisters shall take by representation, and be entitled to no more than their parents, if living, would have taken. The testator's general intention was, that the children