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1833.

PROUDLEY

0. FIELDER.

The marriage took effect, but no settlement was ever executed. The wife died in the husband's lifetime without issue, and without having made any appointment of her separate property; and the husband took out administration to her estate. The husband having subsequently died, the bill was filed by the next of kin of the wife against the executors of the husband's will, and against certain of his legatees; and it prayed a declaration that, upon the true construction of the articles, the Plaintiffs were entitled to the wife's property in the funds, as if she had not been married.

Mr. Pemberton and Mr. Dixon, for the Plaintiffs.

Mr. Bickersteth, Mr. Kenyon Parker, and Mr. H. J. Perry, for the Defendants.

The Master of the Rolls.

These monies were to be for the sole and separate use of Mrs. Leader, as if she were sole and unmarried. This expression has no reference to the devolution of the property after her death. She is to retain the same absolute enjoyment of the monies, and is to have the same power of disposition over them, as if she were sole and unmarried; but there is not one word here to vest the property after her death in her next of kin, or to defeat the right which her surviving husband is entitled to acquire as her administrator.

1833.

HORDE v. The Earl of SUFFOLK.

ROLLS. July 27. Aug. 5.

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THE will of Ann Southern, after bequeathing her where annual

sums were - worldly property of every kind and description bequeathed to to the Rev. George Bissett (whom she appointed her persons, to be

distributed in sole executor), in trust for the purposes thereinafter charity, at the

discretion of mentioned, directed her executor to pay certain pecuniary legacies, and, among others, one of 1001. to either to pri

vate indiviCaroline Anne Horde, and then proceeded as follows: duals or -" In the next place I desire that, out of the residue institutions,

the Court deof my property, my said executor will pay, or cause to clared that the be paid, to the aforesaid Caroline Anne Horde, over and legacies did

not fail, but above her said legacy, the sum of 1801. annually during that a scheme the term of her natural life, to be by her distributed in

" sary; leaving charity according to her own discretion and judgment, any of the either to private individuals or public institutions, in libe such sum or sums, way and manner, as she shall from apply, as there

might be time to time choose, without limitation or control from occasion. any person whomsoever. Next I desire that my said executor will pay, or cause to be paid, to Amelia Wrenford, now living at Stow in Gloucestershire, the sum of 20l. annually for the term of her natural life, for her own use and benefit. All the remainder of my property now vested, or hereafter to be vested in the public funds (and it is my will that all the money I may possess should be so vested in the public funds), I desire that my said executor will pay or transfer, or cause to be paid or transferred, unto the Right Honourable Ladies Elizabeth Howard, Julia Catharine Howard, and Jane Elizabeth Howard, the three eldest daughters of the Right Honourable Thomas Earl of Suffolk and Berkshire, to be by them the said ladies, and the survivors and survivor of them, and the executors, administrators,

and

and assigns of such survivor, and his, her, or their personal representative or representatives, for ever continued at interest; and the dividends, interest, and proceeds thereof from time to time arising, given away in charity either to individual persons or to public institutions, in such sums, way and manner as, according to their own discretion and judgment, they shall think fit, without the interference or control of or from any person whatever. Further it is my will, that if the aforesaid Amelia Wrenford shall die before the said Caroline Anne Horde, then and in that case her annuity of 201. a year shall be paid to the said Caroline Anne Horde during the term of her natural life, to be applied by her to charitable purposes, as her other annuity of 1801. I desire also, that whenever the said Caroline Anne Horde shall depart this life, my said executor the Rev. George Bissett shall pay or transfer, or cause to be paid or transferred, the said annuity of 1801., and so likewise the said annuity of 201. a year given to the said Amelia Wrenford, when the same shall drop in by her death, in case she shall survive the said Caroline Anne Horde, to the aforesaid Ladies Elizabeth Howard, Julia Catharine Howard, and Jane Elizabeth Howard, or to the survivors or survivor of them, and the executors, administrators, and assigns of such survivor, and his, her, or their personal representative or representatives for ever to be given away in charity in the same manner, according to their discretion, as the rest of the money which I have directed my aforesaid executor and trustee to pay or transfer to them, and the dividends, interest, and profits thereof; so that it is my intention, that after the deaths of the said Caroline Anne Horde and Amelia Wrenford, and after payment of the legacies aforesaid, and my just debts, funeral charges, and testamentary and trustees' expenses, the whole residue of my property, whatever it may be or consist

1833.

HORDE

The Earl of
SUFFOLK.

of,

1833.

of, shall be paid or transferred to the said Ladies Elizabeth Howard, Julia Catherine Howard, and Jane Elizabeth Howard, their executors, administrators, or assigns, for the charitable purposes hereinbefore described.”.

HORDE

The Earl of
SUFFOLK.

The Rev. George Bissett having died in the testatrix's lifetime, the testatrix by a codicil substituted the Earl of Suffolk as her executor. Amelia Wrenford died shortly after the death of the testatrix, and the bill was filed by Caroline Ann Horde, and the Ladies Howard against the Earl of Suffolk, for the purpose of having the annuities of 1801. and 201., and the residue of the testatrix's personal estate, applied in the manner directed by the will.

The Master having found that the testatrix died without leaving any next of kin, the Attorney-General claimed for the Crown on the ground of a failure of the charitable bequest; and the question was, whether that bequest was, in any and what manner, to be executed by the Court.

Mr. Bickersteth and Mr. Whitmarsh, for the Plaintiffs.

In Waldo v. Caley (a), where a fund was directed by the testator to be applied by his widow to charitable purposes generally, the distribution to be at her discretion, with the advice and assistance, but not under the control of the trustees of the will, Sir William Grant declined to direct any scheme for a charity, and decided that the disposition of the fund was at the absolute discretion of the widow. The present is a stronger case than Waldo v. Caley, for here the disposition of the fund is expressly left to the discretion of the legatees, without limitation or control from any person

whom

(a) 16 Ves. 206.

1833.

HORDE

0.

The East or portions in w

SUFFOLK.

whomsoever. The fund is to be distributed at all events in charity ; but the objects of the charity, and the proportions in which it is to be distributed to the different objects who may be selected, are left entirely to the discretion of the legatees. This is not a case where a legacy is expressly given in trust for purposes so vaguely defined that the Court cannot execute the trust, like Vezey v. Jamson (a); neither is it a bequest given for private charity, like Ommanney v. Butcher (6); nor is it a case where the testator intended to create a charitable trust, but that intention was too indefinitely expressed to enable the Court to effectuate it, like Morice v. The Bishop of Durham. (c) There is, therefore, a good disposition of the property of the testatrix for charitable purposes.

Mr. Wray, for the Crown.

In Vezey v. Jamson the testator gave the residue of his estate to his executors upon trust to dispose of it at their pleasure, either for charitable or public purposes, or to such person or persons as they should in their discretion think fit. Charitable, as contradistinguished from public purposes, must mean purposes of private charity, and then the direction is exactly like that in the present case, which is for the distribution of the fund in charity at the discretion of the legatees, either to private individuals or for public institutions. Ommanney v. Butcher decides that a trust for private charity is such a trust as the Court cannot execute; and generally where, as in the present case, a trust is so vaguely and indefinitely expressed, that, although the testator may have intended to give his property in

charity,

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