1841. ATTORNEY- v. SOUTHGATE. reimburse themselves, out of his estate and effects, all reasonable costs, charges and expenses for loss of time and trouble in executing his will, and all expenses attendant on the trusts thereof. He then expressed himself as follows: "And whereas I hope and trust Providence, in His goodness towards me, has blessed me with more than will be necessary to pay the sums hereinbefore bequeathed and given, therefore, from and after every demand on my estate be satisfied, I give, devise and bequeath the residue of my property then remaining in the hands of my said trustees in the Bank of England as aforesaid, unto the Master, Wardens and Court of Assistants of the Cordwainers' Company in Distaff-lane in London for the time being, to hold to them the said Master, Wardens and Court of Assistants and their successors for ever, in trust that they, on the receipt of the said residue, invest the same in permanent Government securities, in trust to receive the dividends or interest to become due thereon from time to time, and, after allowing themselves a reasonable remuneration for their trouble, shall, half yearly, distribute and divide the same amongst so many poor and distressed fathers of families, that each father may not receive more than 20 l. a year, nor less than 15 l. a year during his life." The testator made two codicils, both of them dated the 25th of March 1830, and thereby gave some further pecuniary legacies and directed that they should be paid by the executors to his will at such time and in such manner as therein directed, but did not alter his will in any other respect. The testator died on the 28th of March 1830. The bill was filed to establish the will and carry the trusts of it into execution. As the testator died seised of real estate and possessed of leasehold and other personal property, the devise and bequest to the Cordwainers' Company, was good as to his pure personal estate, but void, under the statute of mortmain, as to all the rest of his property. At the hearing of the cause for further directions, Mr. Knight Bruce, Mr. Wakefield, and Mr. K. Parker, for the Company, and Mr. Anderdon and Mr. Piggott, for some of the testator's next of kin, who had been made Defendants, by supplemental bill, as being entitled to the leasehold property, or the produce of it, exempt from the bequest to the Company, said that the testator had expressed an intention that his entire property should form one mass, without any distinction as to the liability of the separate parts of it: that the Court, finding such an intention, must give effect to it, and direct the testator's debts and legacies to be paid out of the different descriptions of property in proportion to their relative values or amounts; as was done in Roberts v. Walker (a). They referred also to Williams v. Kershaw (b) and Johnson v. Woods (c) and Fourdrin v. Gowdey (d). Mr. Jacob and Mr. F. J. Hall, appeared for the testator's heir, and Mr. Wigram, Mr. Stinton and Mr. Hallett for the other parties. The VICE-CHANCELLOR, without hearing them, The only question is whether the testator in this (a) 1 Russ. & Myl. 752. (b) 1 Keen, 274, note. VOL. XII. G (c) 2 Beav. 409. (d) 3 Myl. & Keen, 383. 1841. ATTORNEY GENERAL v. SOUTHGATE. 1841. ATTORNEY GENERAL 0. SOUTHGATE. case, has expressed an intention that the general rule of this Court as to the payment of debts and legacies, should be altered. I confess that I cannot see anything in this will to prevent the application of the rule in the usual way. In Roberts v. Walker, Sir John Leach, M. R. says: "When a testator creates, from real estate and personal estate, a mixed and general fund, and directs the whole of that fund to be applied for certain stated purposes, he does, in effect, direct that the real and personal estates which have been converted into that fund, shall answer the stated purposes and every of them, pro rata, according to their respective values." That, in my opinion, is quite a gratuitous proposition; and I consider that Sir John Leach's decision in Roberts v. Walker is contrary to the ordinary rule of this Court as observed in the administration of assets. Declare that the costs, charges and expenses already taxed and paid, and those directed to be taxed and paid as aftermentioned, are charged upon the testator's real estate and his personal estate savouring of realty and his pure personal estate, and are payable thereout in proportion to the relative values of those estates: declare that the testator's debts, funeral expenses and legacies ought to be paid out of the testator's personal estate savouring of realty and out of his pure personal estate, in proportion to the relative values of those estates: declare that the testator's heir at law is entitled to the produce of the sale of the testator's real estates, subject to the charges before declared and to the expenses of the sale thereof: declare that the residuary bequest is void to the extent of that proportion of the residuary estate which consisted of personal estate savouring of realty: declare that the testator's next of kin living at his death are entitled to such last-mentioned personal estate; and declare that the Plaintiffs, as trustees of the charity, are entitled to the pure personal estate, subject to the several charges thereon. 1841. ATTORNEY- 0. SOUTHGATE. The Plaintiffs appealed to the Lord Chancellor from the above decree. The Lord Chancellor differed in opinion from the Vice-Chancellor, and decided that the testator's debts, legacies &c. ought to be paid out of the mixed fund. His Lordship's decree, dated the 23d of December 1842, declared that the testator's debts, legacies and funeral expenses, together with the costs, charges and expenses already taxed and paid and thereby directed to be taxed and paid, were a charge upon the testator's real estate and his personal estate savouring of realty and his pure personal estate, and were payable thereout in proportion to the relative values of such estates respectively that the testator's heir was entitled to the produce of the sale of the real estates subject to the funeral expenses, debts, legacies and other charges before declared and also to the expense of the sale of the real estates: that the residuary bequest was void to the extent of that portion of the residuary estate which consisted of personal estate savouring of realty, and that the testator's next of kin living at his death, were entitled to the personal estate savouring of realty subject to the funeral expenses, debts and legacies and the other charges affecting the same, as before declared. 1841: 5th, 6th, 20th, and THE ATTORNEY-GENERAL v. GLYN. 23d March. IN 1705, the Master, Brethren and Sisters of St. Ka Charity. Mortmain. c. 36. Lease. A school was tharine's hospital, near the Tower of London, established a school for the education of poor children, inhabiting Stat. 9 Geo. 2, the precinct of St. Katharine, which was their property: and, in April 1812, they granted a lease of two houses in the precinct, to trustees, for the benefit of the school. The lease was granted for 40 years*, and at a rent of 27. 14s. per annum. The St. Katharine's Dock Company, under their Act of Parliament, purchased the precinct, including the site of the hospital, and converted it into a dock: the consequence of which was that there were no children to attend the school. The hospital, however, was rebuilt on a new site, provided for the founded for the education of poor children within a certain district. The district was converted into a dock, under a local Act of Parliament, so that the objects purpose in the Regent's Park. of the charity failed. The Court referred The questions in the cause were: First; whether the it to the Master lease was not void under the statute of mortmain, to approve of a 9 Geo. 2, c. 36, for want of enrolment. scheme for the application of the funds of the A lease of Second; whether it was not void under the statutes charity, cy pres. 13 Eliz. c. 10, s. 3, 14 Eliz. c. 11, s. 19, and c. 14, relating to leases granted by ecclesiastical corporations, mortmain, made masters of hospitals, &c. land already in to a charity, does not require enrolment Under 14 Eliz. c. 11, s. 17 & 19, leases for 40 years of under 9 Geo. 4, houses belonging to any ecclesiastical persons or bodies c. 36. politic or corporate, situate in any city, borough, town corporate or market town, or the suburbs thereof, are good. See Vivian v. Blomberg, 3 Bing. N. C. 311; and ante, Vol. VII. P. 548. |