1837.-Arnold v. Arnold.

two of the executors afterwards came to this country, and applied the fund, so remitted, according to the directions of the will, for the benefit of the residuary legatees. A bill having been filed in chancery by one of those residuary legatees, the fund was transferred into the name of the accountant general in trust in the cause. The executors did not prove the will in this country, although the bill, by mistake, alleged that they had done so,—a fact which does not appear to have been noticed in the course of the argument. The question upon the liability to legacy duty came, in the first instance, before this court, by which it was sent, in the shape of a case, to the court of exchequer; and that *court certified that, under these circumstan- [*273] ces, the legacy duty was not payable. The certificate, having been acted upon by Lord Brougham, was made the subject of an appeal to the house of lords, under the name of the Attorney General v. Jackson ;(a) where the decision of this court, and of the court of exchequer, was ultimately affirmed. The Attorney General v. Jackson, therefore, is a decision of the very highest authority. The facts were, in every respect, the same as they are here; with this single exception, that there was no representation in this country; the executors, when they came to England, not having taken out probate here, although, throughout the proceedings, the contrary was assumed to be the fact, and although there was just the same necessity, and no more, for such probate, as there is in the present case. It is quite impossible, however, to suppose that the liability of legatees to the duty can depend upon the act of the execu tor in proving or not proving the will in this country; the question being, not whether there be probate or letters of administration in England, but whether, within the meaning of the act of parliament, the property, out of which the legacies are payable, be property of a person which passes by the will of that person within the meaning of the act.

It is extremely fortunate that this question, which has been so long afloat, is now finally settled by an authoritative decision of the house of lords. In the propriety of that decision I entirely concur; being satisfied that it does justice between the public and those whose property may become subject to legacy duty; but, even if I *had not approved of it, I should have no [*274] power, sitting here, to alter it or depart from it.

I am, therefore, of opinion, on the authority of The Attorney General v. Jackson, that the legacy duty is not payable upon the legacies in question.[1]

(a) 8 Bligh, 15, N. S.

[1] Vide Platt v. Routh, 3 Beav. 257, 283, n. 2 Sim. & Stu, 292, n. 2. Am. ed.

END OF PART 1.

When a reference has been made to the master to appoint trustees of a charity, it is the rule of the court to adopt the master's appointments, unless the persons appointed can be shown to be objectionable; and the court will not enter into the question of the fitness of other persons whom the master has refused to appoint.

Where, however, under the municipal corporations regulation act, a reference had been made to the master, to appoint new trustees of charity property, in the stead of the old corporation, who had been the former trustees, and the master had received evidence which tended to show that there was a suspicion of the old trustees having exercised their trust for political purposes, and had declined to re-appoint any of the old trustees, and had written a memorandum, stating that he had come to that determination "in consequence of the case made against the old trustees;" the court entered into the consideration of the propriety of the master's conduct in rejecting all the old trustees; and held, that the existence of a general suspicion of impropriety on the part of the old trustees in the exercise of their trust, whether that suspicion were well or ill founded, justified the master in declining to re-appoint any of the old trnstees.

An institution for the maintenance and education of poor children, founded in 1617, and chartered in 4 Car 1. (1628,) was held, under the circumstances, to be not exclusively a church of England charity, so as to make it proper to place it under the superintendence of a body of trustees consisting entirely of members of the church of England.

THIS case came before the Lord Chancellor upon a petition to confirm the master's report of his having appointed certain trustees of the Norwich [*276] charities, under the act for the regulation of municipal *corporations, (a)

and upon a cross petition, presented by Samuel Bignold and William Rackham, which prayed that the report might not be confirmed.

By an order made by the Lord Chancellor, on the 20th of August, 1836, it was referred to the master to appoint proper persons to be trustees of the charity estates and property, then late vested in or under the administration of the corporation of Norwich, or any of the members thereof in that character, which were affected by the seventy-first section of the act; with liberty to the master to state special circumstances.

Among the charities of which it was necessary to appoint new trustees,

(a) 5 & 6 W. 4, c. 76.

1837.-In the Matter of the Norwich Charities.

were the Great Hospital, Doughty's Hospital, the Boy's Hospital, and the Girls' Hospital.

The petitioners, who now prayed the confirmation of the master's report, carried in before the master a list of names of persons to be appointed trustees; and the petitioners in the cross petition also carried in a like list on their part. In the latter list were inserted the names of certain persons who had been trustees of the charities, in their capacity of members of the old corporation, including the cross petitioners themselves.

Upon the prosecution of the order of reference, there was produced before the master a printed copy of a report with respect to the city of Norwich, made in the year 1835, by the commissioners appointed, by his majesty's commission, to inquire into the state of municipal corporations in England and Wales. This report stated, that the voters at the local elections

at Norwich had long been divided into two parties; the one called [277] the purple and orange party, and the other the blue and white party; and that it had been clearly proved that bribery had been very frequently and extensively practiced by both parties at the local elections. The report then particularized various instances of bribery; and it also stated, that a mode of bribing which had been frequently practiced, consisted in giving notes, promising to get freemen into the hospitals, and to make them allowances until they could be admitted; that at the election of a sheriff in the year 1832, a note was given by an alderman to a freeman, promising to pay him four shillings a week till his brother's boy was put into the hospital school; that it was admitted on both sides that such notes had been frequently given and that freemen had been placed in the hospital in consequence: that in some instances they had been given by the aldermen themselves, and in others the aldermen had been acquainted with the transaction; that loans of charity money, under the control of the assembly of the corporation, and which was called city money, had been frequently granted to a particular individuals on account of their votes ; that there was also evidence that in one instance of a parliamentary election, a loan of city money had been offered to a voter by an alderman, who at the same time promised to become one of the sureties, if the voter would vote for a particular candidate.

The commissioners stated that the committee of the corporation for the management of the hospitals had employed no whig tradesmen since the tories gained the ascendancy. The report added, that one of the aldermen, who was, at the time of the inquiry, treasurer, and also a member of the committee, of the Great Hospital, admitted that the acceptance of tenders was influenced by the politics of the parties who made them; that it had [*278] been clearly established by evidence, that a preference was given in the employment of tradesmen, by the different committees, to those whose political sentiments were in unison with their own; that although there was a regulation forbidding members from being employed as tradesmen by the committees to which they belonged, yet that that rule had been violated on VOL II.

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1837.-In the Matter of the Norwich Charities.

several occasions. The report added, that the mayor stated, that it would be impossible, in the city of Norwich, to exercise patronage on any other principle than that of political partisanship; that he said, that of the twenty-four aldermen, in whom the patronage was vested, fifteen were of one party and nine of the other, and that their appointments were made in exactly the same proportions, fifteen twenty-fourths in favor of one party, and nine twentyfourths in favor of the other; that the inmates of the Great Hospital had been introduced as the political supporters of the aldermen, and that there was no instance within his knowledge of a political opponent being selected; that the mayor added, that no improper persons had been admitted, though it was probable that the same individuals would not have been selected, but for ⚫ their votes. The commissioners' report declared, that in the instances therein mentioned, and in others, the property and patronage entrusted to the corporation for purposes of charity had been rendered subservient to the purposes of a party; and the report then proceeded to state two cases in which the individual members of the court of aldermen had had a personal interest in the disposal of such property and patronage; one of which cases was a payment, out of the hospital funds, for the benefit of an alderman, who was a member of the hospital committee, and a tenant of hospital property;

and in the other case, an additional charge had been made on the hos[*279] pital revenues, to provide *for an increase of salary on the appointment

of a person, who was the son of one alderman and the brother of another, to the office of chaplain; the increase having been refused to his immediate predecessor in office, who was not personally connected with any of the aldermen, and when granted to himself, there being an express provision that it should not be drawn into a precedent for his successor.

One of the two commissioners, before whom the inquiry into the state of the corporation of Norwich had taken place, verified a printed copy of the report, and stated that the inquiry was conducted at Norwich by himself and his colleague, in the months of November and December, 1833, and lasted twentytwo days or thereabouts: that, in his opinion and judgment, the report was a true, faithful, and impartial report on the then state of the corporation as it appeared from the evidence taken by the two commissioners, and that the whole of the evidence given upon the inquiry, and upon which the report was made, was given publicly, upon the oaths of the parties. The affidavit of Thomas Edwards, the present treasurer of the city, stated, that he was present at the inquiry, and heard the then mayor make the statement which is above cited from the commissioners' report; and the deponent added, that he had been for the last twenty years well acquainted with the state of political parties at Norwich, and that the statement so made by the mayor was true. Another affidavit, sworn jointly by Mr. Edwards and two other persons, confirmed other statements contained in the commissioners' report, with respect to the hospital notes, and stated that upon the commissioners' inquiry, the then mayor, having mentioned that the great majority of persons

1837.-In the Matter of the Norwich Charities.

admitted into the hospital were freemen, was asked whether they [*280] were so introduced as the political friends of the aldermen, and that he replied, "yes, I should certainly introduce my political friends in preference;" but the affidavit added, that in reply to another question, the mayor deposed that he thought very pressing cases had had the preference over political supporters; and that, upon being asked, whether he thought that the same persons would have been introduced into the hospital if they had not been political supporters, he answered, "not identically the same persons." The deponents added, that they verily believed that the statements made by the mayor were true.

The affidavit of Edward Massey, who was a member of the old corporation at the time of its dissolution, stated that he had been a member of that body for three years, and that, during that time, the members attached to that political party which was in the minority were excluded from committees appointed for the management and distribution of the charity property and patronage.

The joint affidavit of John Francis and William Enfield, junior, late common councilmen, stated, that it was notorious that the members of the late corporation exercised their funds and patronage as trustees for charitable purposes on the principle of political partisanship; and that the subserviency of the charity funds and revenues to political purposes, as well by the use made of the city money or charity loans, as by the use made of the hospital, by the corporate trustees, was well known, and was proved by evidence on oath before the commissioners of corporate inquiry, and that the evidence so given was true. They also stated that other particular parts of the statements made in the commissioners' printed report were, as the [*281] deponents verily believed, true in substance and in fact.

On the part of the old trustees, Mr. Harvey, who had been elected an alderman in 1787, and a member of the hospital committee in 1800, and had since continued such, deposed, by affidavit, that the statement in the commissioners' report, that since the tories gained the ascendancy, no whig tradesmen had been employed by the committee of the corporation for the management of the hospital, was incorrect.

Another affidavit stated that the present chaplain of the Great Hospital had more religious services to attend to than his predecessor, and that the number. of the inmates had, during his incumbency, increased from 120 to 176.

Mr. Beckwith, late town clerk, stated that at the time of the appointment of the present chaplain, he was speaker of the common council, and that it was at his suggestion that the increase of salary was limited to the present chaplain's incumbency, and that the suggestion was made in order that the common council, whose sanction of the increase was necessary, might have an opportunity of re-considering the question; the appointment being vested solely in the aldermen. He spoke also to the respectability of the persons proposed by the cross petitioners for appointment as new trustees.