Attorney-general v. Glyn.

for applying the sum for which the lease of the houses had been sold, to charitable purposes cy pres.

Mr. Romilly and Mr. Goodeve, for the relators, said, first, that the houses were in mortmain at and long before the time when the lease of them was granted; and, therefore, the lease was not within the statute of mortmain. Walker v. Richardson,(a) De Costa v. De Paz.(b)

:

Secondly that the 14 Eliz., c. 11, was the statute under which the lease had been granted, and that the terms of the lease were in conformity to the 19th section of that statute.

Thirdly that, where a trust for a charity had once attached, this court would not allow it to fail for want of objects, but would provide for the application of the funds cy pres.

Mr. Knight Bruce and Mr. Craig, for the Dock Company, contended-First: that the lease having been granted for the benefit of a charity, it was void for want of enrolment.

Secondly that the yearly accustomed rent was not reserved by the lease, as required by the statutes of Eliz., or, at all events, there was nothing to show that the rent reserved was the accustomed yearly rent.

Thirdly that the lease having been granted not for general but for a particular charity, which had failed, *the [*86] court would not apply the funds to any other charity. Cherry v. Mott.(c)

THE VICE-CHANCELLOR :-Here there was a charity established (which has existed more than a century,) for the benefit of the poor children of the precinct. Now, the mere accidental fact that the legislature has interfered and has destroyed, in

(a) 2 Mees. & Wels. 882,

(b) Amb. 298; and 2 Swans. 487, note.

(c) 1 Myl. & Cr. 123.

Attorney-general v. Glyn.

effect, that precinct, does not appear to me to have destroyed the original charity. I apprehend that the court, finding an existing charity, will see whether there cannot be an application of the funds. Because, all that has been done is this: the old site of the hospital has been taken away and a new site has been given. What the particular provisions of the act of parliament are respecting the site of the new hospital, I do not know; but the hospital is not destroyed: it continues, and it appears to me that, as a part of the appendage to the hospital, that very charity itself does continue. It repeatedly happens that, where a charity has been instituted and has gone on for a century or more, and, for some reason or other, the charity cannot go on as it did, this court will direct the Master to approve of a scheme; and, this being a case in which I must consider that the charity is existing and has not reverted, I must adopt the same course; more especially as, for anything that has been shown to me to the contrary, there may he persons, who are fit objects of the charity, within the precincts of the site of the new hospital.

Next, with respect to the lease. Supposing it is good, what is it, in effect, but a donation by the hospital to the cha[*87] rity? And supposing the lease is good, it is just the same as if money had been given. I see no difference; but whether it is good or not in law, is another matter.

All that the information and bill states respecting the lease, is that demises were made, from time to time, by the chapter of the hospital on the payment of fines, at the pleasure of the chapter for the time being. The answer makes no objection at all to the lease; but an objection is made, at the bar, in respect of the language used in the information and bill. Now, the information and bill might have expressly averred that the lease was made at the accustomed yearly rent or more; but it has not. Therefore, before I make any decree which will give, to the informants and plaintiffs, the benefit of the lease, I must have it clearly made out that the lease is good under the statutes of Elizabeth, a matter which, at present, is left in uncertainty; and,

Attorney-general v. Glyn.

for that purpose, it will be necessary to direct an inquiry before the master, which will have the effect of eliciting the fact whether the lease is a good lease within those statutes.

I have always understood that it is quite a settled point, that a lease that is made by an eleemosynary corporation, though not ecclesiastical, is within the operation of the statutes; and, therefore, the only question will be whether this is a lease which, by reason of its being a lease of tenements, within the suburbs of the city, for a period not exceeding 40 years, is a good lease or not in respect of the rent reserved.

With respect to the question whether the lease is void because it was not enrolled within six calendar months after the execution thereof, which is an objection *that arises on [*88] the statute of the 9th Geo. 2, my opinion is that I ought not to send any case to a court of law on that point: because the precise point was determined in Walker v. Richardson; and I must say that it is my own opinion that the question was rightly decided in that case. It is plain that what was meant by the statute, was to repress the testamentary disposition of land to charitable purposes, and also to enforce the statutes of mortmain. But if the land be already in mortmain, it is altogether out of the consideration of the legislature.

The question, then, having been solemnly decided in a court of law, and my opinion upon it being in accordance with that decision, I ought not to direct it to be again discussed.

Rickett v. Guillemard.

RICKETT V. GUILLEMARD.

Will.-Construction.- Survivorship.

1841: 27th March. Testator gave 800%. to the four children of H. R., to be divided into equal shares, and paid to them at 21, and the interest of their shares to be paid, to their parents, in the meantime: and, in case of either of the legatees dying under 21, then his, her or their shares were to be equally divided amongst the survivors. Two of the children died, under 21, in the testator's lifetime. Held that the two survivors were entitled to the original share only of the child who died last.

A TESTATOR gave to Mary Rickett, H. Rickett, T. Rickett, and J. Rickett, the sons and daughters of Henry Rickett, 800%. stock, to be divided into equal shares, and to be paid to them as they should respectively arrive at the age of 21 years; and the dividends and interest of their respective shares to be paid, to

their parents, in the meantime: and, in case of either of [*89] the *before-mentioned legatees dying before attaining the

age of 21 years, then he directed that his, her or their shares should be equally divided among the survivors. Two of the children died, under 21, in the testator's lifetime. The question was whether the two surviving children, who were the plaintiffs in the cause, were entitled to that portion of the share of the child who died first, which survived to the child who died last.

Mr. Simpkinson and Mr. Anderdon, for the plaintiffs, cited Walker v. Main, (a) Willing v. Baine, (b) Humphreys v. Howes,(c) Mackinnon v. Peach.(d)

Mr. Jacob appeared for the defendant.

THE VICE-CHANCELLOR:-The clause in the will which has been relied on by the counsel for the plaintiffs, is not sufficiently extensive to give over shares accruing by survivorship.

(a) 1 Jac. & Walk. 1.

(b) 3 P. W. 113.

(c) 1 Russ. & Myl. 639.

(d) 2 Keen, 555.

Ottway v. Wing.

On the death of the child who died last, his original share went over to the two surviving children; but his one-third of the share of the child who died first, lapsed.

*OTTWAY v. WING.(a)—WING v. OTTWAY. [*90]

*Practice.-Feme coverte.-Process.-Attachment.

1841: 30th March.

An attachment ordered to be issued against a married woman, for disobeying an order in a suit which she had instituted by her next friend.

THE plaintiff in the original cause was a married woman, who sued by her next friend; and the bill was, in effect, for an injunction to restrain Wing from levying execution on her separate estate for a debt due by her before marriage. The cross cause was to enforce Wing's equitable charge on the separate es tate, and for an account and a sale.

The parties compromised the matter; and an order was made, whereby it was declared that Wing had an equitable charge, on Mrs. Ottway's separate estate, for the amount of his demand therein specified; and it was ordered that the plaintiff, Caroline Ottway, should, within four days after service of a writ of execution of the order, pay to Wing the sum of 300%, part of his said demand.

A writ of execution was served, and the money not paid. The usual affidavit was made; but the registrar objected to the is suing of an attachment without the express direction of the court.

Mr. Coleridge mentioned the case to the Vice-Chancellor, and stated that Mrs. Ottway was here in the character of a feme sole,

(a) Ex relatione, Mr. Coleridge.