Griffiths v. Gale.

appointed a share of it, by her will, to one of her sons. By the deed creating the power, the fund was limited, in default of appointment, to all her children as tenants in common. The son died intestate a few days before his mother, leaving several children, who survived their grandmother.

The son's administrator presented a petition claiming the appointed share, under the new Will Act, 7 Will. 4 & 1 Vict. c. 26. The first section (the interpretation clause,) enacts that the word "will," shall extend to a testament and to an appointment by will or by writing in the nature of a will in exercise of a power: and the 33d sect. enacts that a devise or bequest to a child of the testator, who dies in the testator's lifetime, leaving issue living at the testator's death, shall not lapse, but shall take effect as if the child had died immediately after the testator.

Mr. Bethell, for the petitioner, relied on the first and 33d sections of the act.

[*328]

*Mr. Simons appeared for the parties entitled in default of appointment.

THE VICE-CHANCELLOR:--The words used in the 33d section are, "devised or bequeathed;" but property passing by the execution of a power, is neither devised nor bequeathed. That section, too, enacts that the devise or bequest shall not lapse: therefore, I cannot think that it was meant to apply to a testamentary appointment. The legislature could not have intended to vary the rights of the parties who the donor of the power had declared should be entitled in default of appointment. The point, however, is a very important one, and I will allow the petition to stand over for further argument. (a)

(a) In Johnson v. Johnson, the only other case in which a construction has been put on the 33d section of the act, Vice-Chancellor Wigram, in M. T. 1843, held that the issue of a testator's deceased child could not claim the property bequeathed to their parent; but that the parent's personal representative was entitled to it as part of his personal estate.-2 Jarman on Wills, 726 and 727.

If it appears to be for the benefit of a charity that part of the estates belonging to it should be sold, an order for that purpose, may be made on a petition presented under 52 Geo. 3, c. 101.

THIS was a petition, presented under Sir Samuel Romilly's Act, (52 Geo. 3, ch. 101,) by two of the inhabitants of the town of Wisbech, in the Isle of Ely, stating that, in 1628, Thomas Parke devised a house in Ship-lane, Wisbech, with the buildings thereto belonging, to the corporation of that town, to the use of the poor of the parish of Wisbech for ever: that the house and premises were copyhold of the manor of Wisbech; and that, some years ago, a piece of land, in Crab Marsh, in Wisbech, containing two acres and two roods, had been allotted, under an Inclosure Act, in respect of the house; and that, at the time when the petition was presented, the charity-estate consisted of a public-house, with the yard, stables, outbuildings, and two tenements adjoining, and also, of the allotment in Crab Marsh: that, of late years, the rent of the estate had progressively diminished, notwithstanding the estate had been let, from time to time, by auction; and that the lessees of the principal part thereof,

had given notice of their intention to quit the *same [*330]

In re Parke's Charity.

at Michaelmas then next: that the public-house and the two tenements adjoining were very old and dilapidated, and required the outlay of a very large sum of money to put them into a state of good and substantial repair: that they abutted upon the principal entrance into Wisbech from Lynn, the river Nene being on the opposite side of the road: that the road, where the said charity premises abutted on it, was of the width of 16 feet only, and was bounded, on the side next the river, by a-wharf, which was perpendicular for several feet in depth, and was kept in repair at the expense of the corporation of Wisbech and of the charity-estate, in equal proportions: that, by reason of certain alterations having been made, a few years since, in the outfall of the river Nene, the channel of it had been greatly scoured out and deepened; by reason whereof the wharf had become insecure, and had a tendency to slip into the channel of the river: that such deepening of the channel was still in progress, and would, in all probability, proceed for some time to come before the channel of the river had attained its greatest depth that, by reason of the circumstances aforesaid, the reparation of the wharf had been, of late years, a source of great ex pense to the charity-estate; and that, in February then last, a great portion of the wharf gave way, and the road over it became impassable, and the same had been repaired merely in a temporary manner; but, nevertheless, at a large expense to the charity-estate: that, to repair and rebuild the wharf and road so as to secure the same and the charity premises from danger, owing to the increased depth of the river, would require a large outlay of money, and be attended with a very heavy expense to the charity-estate: that the devised premises were copyhold, fine arbitrary; and that Thomas Clarkson, the sole surviv[*331] ing tenant thereof, was of the *advanced age of 80 years, and that the admittance of a new set of tenants would be attended with a very heavy expense: that the corporation of Wisbech were desirous of purchasing the premises in Ship-lane, for the purposes of widening and improving the river Nene and the navigation thereof, and of effecting a permanent improve ment to the town of Wisbech, and of widening and improving

In re Parke's Charity.

the road from Wisbech to Lynn; and that they had applied to the charity trustees to set a price upon the same with a view to the purchase thereof: that, under the aforesaid circumstances, it would be highly beneficial to the charity to dispose of the premises in Ship-lane, and to treat with the corporation for the sale thereof at a valuation by two indifferent persons or their umpire; and to lay out the purchase-money in the purchase of other lands to be conveyed upon the trusts of the charity estate; but the trustees, although they were willing to act in the premises under the sanction of the court, declined to take upon themselves to treat with the corporation.

The petition prayed that such directions might be given as, under the above circumstunces, might be deemed necessary and proper for the management of the charity-estate and premises, so as to prevent the same from falling into decay, and the income of the charity thereby becoming further diminished; and that it might be referred to one of the masters of the court to approve of a scheme for such management, with liberty to consider and report upon the propriety of the proposed purchase, or of some other mode of disposing of the last mentioned premises which might be most advantageous to the charity.

Mr. Metcalfe appeared in support of the petition.

*Mr. Campbell, for Thomas Clarkson, the surviving [*332] tenant of the copy hold part of the charity-estate, submitted that the court had no jurisdiction to order, on a petition presented under 52 Geo. 3, c. 101, any part of a charity-estate to be sold; but that an information ought to be filed for the purpose of obtaining that object. (a)

THE VICE-CHANCELLOR :-The Act empowers the Lord Chan cellor to make an order on petition in a summary way, in every case of a breach of any trust created for charitable purposes, or

(a) See 2 Swanst. 302.

In re Parke's Charity.

whenever the direction or order of a court of equity shall be deemed necessary for the administration of any trust for charitable purposes.

If it had been made a question in this case whether there was any trust for a charitable purpose, then an information would have been necessary. But the trust is admitted; and the relief asked has reference only to the mode of administering the charity property

Refer it to the master to inquire and state whether it is most fit and proper, regard being had to the will of Thomas Parke, and to the objects of the charity, that the charity premises in the petition mentioned, or any and what part thereof, should be sold or otherwise disposed of; or whether the same, or any, and what part thereof, or the appurtenances thereto, should be repaired: If the master shall be of opinion that it is most fit and proper that the said charity premises or any part thereof should be sold or otherwise disposed of, then let him inquire and state [*333] to the court what mode of sale or *other disposition thereof will be most fit and proper: And let the master be at liberty to receive proposals for the purchase of the said charity premises or any part thereof, from the corporation of Wisbech in the petition mentioned, or from any other corporate body, person or persons willing to purchase the same or any part thereof, and let him report upon such proposal or proposals, with his opinion thereon, to the court. And, if the master shall be of opinion that it is most fit and proper that the said charity premises or any part thereof, or the appurtenances thereto, should be repaired, then let him inquire and state to the court what, in his opinion, ought to be the nature and extent of such repairs, and what expenses ought to be incurred in and about such repairs, and by and out of what funds the same ought to be borne and paid.