amassed a large fortune, the greater part of which he devoted by his will to charitable purposes. J. C. 1875-6 LYONS v. GENERAL OF BENGAL. The said will, dated the 1st of January, 1801, (as the same has MAYOR OF been construed in various decrees and orders) contained, among others, dispositions to the following effect: A gift of Rs.5000 per ADVOCATEannum for the release of imprisoned debtors at Calcutta, and a gift of Rs.1000 per annum for the relief of such prisoners. Also three bequests to found charities at Calcutta, at Lyons, and at Lucknow, respectively. And a gift of the residue equally between the said three charities at Calcutta, Lyons, and Lucknow. The two bequests for the release and relief of prisoners having failed for want of objects of the charity, the question raised in this appeal was whether the fund thereby set free ought to be divided between the three residuary charities, or applied cy-près in the manner directed by the order appealed from, which was in substance a distribution for the benefit of the Calcutta and Lucknow charities, and for the benefit of convicts on their release from jail at Calcutta, to the exclusion of the Lyons charity. The will was divided into thirty-four articles, of which those most material on the questions arising on this appeal are the following: The 23rd article contained a bequest of Rs.150,000, to be invested, and the income applied for the relief of the poor of Lucknow, Calcutta, and Chandernagore. The 24th article was as follows: "I give and bequeath the sum of 200,000 sicca rupees to the town of Calcutta, to be put at interest in government paper, or the most secure mode possible, and this principle and interest to be put under the protection of Government or the Supreme Court, that they may devise an institution the most necessary for the public good of the town of Calcutta, or establishing a school for to educate a certain number of children of any sex to a certain age, and to have them put prentice to some profession when at the conclusion of their school, and to have them married when at age; and I also wishes that every year premium of few rupees or other thing, and a medal, be given as to the most deserving or virtuous boy or girl, or both, to such that have come out of that school, or that are still in it, and this to be done on the same day in the month I died, that day J. C. 1875-6 MAYOR OF LYONS บ. ADVOCATE GENERAL OF BENGAL those that are to be married are to be married, and to have a sermon preached at the church to the boy and girl of the school, afterwards a public dinner for the whole, and a toast to be drink'd in memorandum of the fondator. This institution is to bear the title of La Martinière, and to have an inscription, either on stones or marble, in large character, to be fixed to any part of the school, on it wrote instituted by Major-General Martin, borne the of January, 1735, at Lyon, who died the day, month, and year (mentioning the day, month, and year) and buried at (mentioning the place); and as I am little able to make any arrangement for such an institution, I am in hope Government or the Supreme Court will devise the best institution for the public good, and to have it, as I said above-mentioned, the name of the institutor, after every article of my or this will and testament is or are fully settled, and every articles provided and paid for the several pension or other gift, donation, institution, and other any sum remaining may be made to serve-first, buy or build a house for the institution, as that it may be made permanent and perpetual by securing the interest by government paper, either in India or Europe, that the interest annually may support the institution; for this reasons I give and bequeath 150,000 sicca rupees more according to the proportion that may remain after every articles of this testament is fulfilled, then this sum to be added for the permanency of that institution, making the sum of 350,000 sicca rupees." The 25th article was as follows: "I give and bequeath the sum of 200,000 sicca rupees to be deposited in the most secure interest fund in the town of Lyon, in France, and the magistrates of that town to have it managed under theirs protection and control; that above-mentioned sum is to be placed, as I said, in a stock or fund bearing interest, that interest is to serve to establish an institution for the public benefit of that town; and the Academy of Lyon are to devise the best institution that can be permanently supported with the interest accruing of the above-named sum; and, if no better, to follow the one devised in the Article 24th as at Lucknow; the institution to bear the name of Martinière, and to have an inscription made at the house of the institution mentioning the same title as the one of Calcutta, and this institution J. C. 1875-6 LYONS v. ADVOCATE GENERAL OF BENGAL to be established at the Place St. Pierre-St. Safurinn being where I had been christened-there at that place to buy or build a house for that purpose; and to marry two girls every year, to MAYOR OF each 200 livres tournois, besides paying about 100 livres for the marriage and fest of each of those who married; or if the institution, such as the Lucknow one, educating a certain number of boy and girl, then they are to have a sermon and a dinner for the schools-boys and those who are married, and they are to drink a toast in memory of the institutor; and a medial is to be given of the value of 50 livres, with a premium in cash, or in kind, to be about 200 livres to the boy or girl that has been the most virtuous and behaved better during the course of the year; and also to have a premium of the value of 100 livres for the second that behave better, and also a third premium of about 60 livres for the third that behave better. I am in hope that the magistrate of the town will protect the institution; and in case the sum above allowed of 200,000 sicca rupees is not sufficient for a proper interest to support the institution, and buying or building the house, then I give and bequeath an additional sum of 50,000 sicca rupees, making 250,000 sicca rupees. One of my male relations residing at Lyon may be made administrator or executor, joined with any one appointed by the magistrate, to be manager of the said institution; and these managers are to have an economical commission for their trouble, taken from the interest of the sum above-mentioned. I also give and bequeath the sum of 4000 sicca rupees to be paid to the magistrates of the town of Lyon, for to liberate from the prison so many prisoner as it may extend, such that are detained for small debt; and this liberation is to be made the day of month I died, as that the remembrance of the donor may be known, and my name, Major-General Martin, is the institutor; and as given and bequeathed the sum of 4000 sicca rupees for to liberate some poor prisoners as far as that sum can afforded; this I mention to have it made known, as that if neglected that some charitable men may acquaint the magistrate of the town of Lyon, as that they might oblige my executor, administrator, or assigns to pay the sum above said, and be more regular in their payments." The 28th article was as follows: "I give and bequeath the sum J. C. 1875-6 MAYOR OF v. ADVOCATE- of 5000 sicca rupees to be paid annually to the magistrates, or Supreme Court of Calcutta, or to Government. This sum is to serve to pay the debt of some poor honest debtor, detained in jail for small sum, and to pay as many small debt and liberate as many debtor as the sum can extend; this liberation is to be made OF BENGAL. the day month I died, as a commemoration of the donor, and as being a soldier, I would wish to prefer liberating any poor officers or other military men detained for small debt, preferable to any other. And I also give and bequeath the sum of 1000 sicca rupees to be paid yearly, and to make a distribution of it to the poor prisoners remaining in jail on the same day as the one mentioned above, both sums making Rs.6000 every year." The material portion of the 33rd or residuary article is set out in the judgment of their Lordships. For the purpose of carrying into execution the trusts of the said will, five suits were instituted in the late Supreme Court of Judicature at Fort William in Bengal. These suits were as follows: First. Uvedale v. Palmer, which related, among other things, to the prisoners' charity, vide Article 28. Second.-Advocate General v. Palmer. The bill was filed the 20th of June, 1816, for the purpose of carrying into effect the directions contained in the 24th article of the said will (being directions relative to the establishment of what is now known as the Calcutta Branch of La Martiniere). Third.-Mayor of Lyons v. Palmer. The bill was filed the 26th of August, 1818, for, amongst other things, an account of the personal estate of the testator, and that the residue might be ascertained, and the city of Lyons declared entitled to one-third thereof under the 33rd article of the will. Fourth.Martin v. Advocate General. The bill was filed the 22nd of October, 1818, for an account of the real estates of the testator, and for establishing the alleged right of the Plaintiffs to so much of the testator's estate as was undisposed of. Fifth.-Palmer v. Martin. A cross suit. The bill was filed the 19th of February, 1819, for divers accounts. By an order of the 11th of November, 1802, in the cause of Uvedale v. Palmer, a scheme was established by the Supreme Court for the administration of the said charities for the release J. C. 1875-6 LYONS บ. ADVOCATE GENERAL OF BENGAL. and relief of poor prisoners at Calcutta, and under various orders funds were carried over out of the testator's general estate to answer the said charities to the credit of two separate accounts, MAYOR OF entitled "General Claude Martin's Fund for the Release of Prisoners," and "General Claude Martin's Fund for the Relief of Prisoners," and the income of such funds not required for the said charities accumulated from time to time, and at the date of the petition of the Advocate-General of the 3rd of August, 1865, hereafter referred to, there were standing to the said account in India 5 per cent. and 4 per cent. India paper and cash sums amounting in the aggregate to about Rs.351,000 accumulation at the date of the order of the 10th of September, 1873, the subject of this appeal. By a decree dated the 16th of August, 1819, the causes were consolidated, and certain accounts were referred to the Master, whose report, dated the 25th of November, 1822, was confirmed on the 29th of November, 1822. A decree was made on the 2nd of December, 1822, in pursuance of which the Master made his general report on the 3rd of February, 1830, to which the then mayor of Lyons took certain exceptions, which were, on the 1st of March, 1830, allowed, and there was a further reference to the Master, who made his amended report on the 19th of July, 1830, and such amended report was duly confirmed. On the 7th of February, 1831, a decree on further directions was pronounced. In due course the said causes came on to be re-heard, and on the 23rd of February, 1832, the Court varied the order made on the 7th of February, 1831, and, among other things, decreed and declared that the testator, being an alien, certain lands and houses in Calcutta could not pass by his will, and that the meaning of the testator in the will was that payment of his debts and legacies should first be made, and a sufficient sum should be set apart and secured for the payment of the several pensions, and for the completing and maintaining of the several buildings, charitable institutions, and establishments in the will mentioned, or so many of them as could be lawfully and effectually established and maintained, and for the payment of all salaries, wages, and allowance in the will provided for supervisors, servants, VOL. I. 3 H |