L. JJ. 1869 v. DAVIS. provision of the indenture, it is there provided that the same "shall be a security not only for the said sum of £600 and other sums and interest as aforesaid, but also for the costs of preparing BLACKFORD and executing these presents, and all other costs and charges connected with any sale or sales, assignment or assignments, action or actions, suit or suits at law or in equity, under the trusts, powers, and provisions thereinbefore contained, or in anywise connected therewith." Then we have this proviso: "That the total moneys to be secured by and ultimately recoverable under these presents shall not exceed the sum of £1200." What are those total moneys? They include not only the £600 and further advances, but all those costs which, according to the previous stipulations of the deed, are to be included in the security. That being so, I think the terms of this decree, regard being had to the bill and to the answer, clearly include all these items. I say that no one of them ought to be excluded if the facts warrant their inclusion-the terms of the decree include them, since every one of those items forms a sum due for principal under the indenture. Solicitors: Mr. Charles Hooper; Mr. H. C. Barker. BEAUMONT v. OLIVEIRA. 9 Geo. 2, c. 36—Charity—Royal Society-Direction to pay Charitable Legacies out of Pure Personalty. A testator, after giving several legacies, gave a legacy of £4000 to the Royal Society, £4000 to the Royal Geographical Society, and three other sums of £4000 to three other institutions, directed that all his charitable legacies should be paid out of his pure personalty, and bequeathed the residue of his property to the Plaintiffs, his executors, for their own use. The object of the Royal Society is "for improving natural knowledge," that of the Royal Geographical Society "the improvement and diffusion of geographical knowledge." The testator left pure personalty very much less than the amount of charitable legacies, a larger sum of mixed personalty, and a small real estate in Madeira :— Held (affirming the decision of Stuart, V.C.), that the Royal Society and the Royal Geographical Society were charitable institutions within the meaning of 9 Geo. 2, c. 36: Held (varying the decision of the Vice-Chancellor), that the debts, fune L. JJ. 1869 Jan. 13, 15, 16, 21. L. JJ. 1860 BEAUMONT v. OLIVEIRA. ral and testamentary expenses, and costs of suit, ought not to be thrown. upon the mixed personalty in exoneration of the pure personalty, but ought to be apportioned rateably between the two funds. That the charities should then be paid out of the residue of the pure personalty so far as it would extend, and claim for the residue against the rest of the estate, such claim abating in the proportion which the mixed personalty bore to the proceeds of sale of the Madeira estate. THIS case came before the Court on two petitions of appeal against an order made by Vice-Chancellor Stuart on the second further consideration of the cause (1). The suit was for the administration of the estate of Benjamin Oliveira, who, by his will, dated the 11th of September, 1865, after appointing the Plaintiffs executors, and giving a legacy of £2000 to his daughter Emma, and certain other legacies, and an annuity, bequeathed "to the treasurer for the time being of the Royal Society the sum of £4000,” and in similar terms he bequeathed legacies of the same amount to the Royal Geographical Society, the Royal Humane Society, the Marylebone School for Girls, and the Albert Orphan Asylum, in all five sums of £4000 each, and added, "I direct all the said charitable legacies to be paid out of my pure personal estate." The testator gave the residue of his real and personal estate to the Plaintiffs, his executors, for their own use. The decree directed the usual accounts and inquiries, including an inquiry what real estate there was and where situate. The Chief Clerk certified that the pure personalty was £6711, that certain leasehold property had realized £8045, and that the only real estate was a small one in the island of Madeira, which had been sold with the sanction of the Court, and was represented by a sum of £866 12s. 6d. £3 per Cent. Bank Annuities. By the order under appeal it was declared that the several legacies to the five societies mentioned were given for charitable purposes within the meaning of the statute of 9 Geo. 2, called the Mortmain Act, and that they were payable out of the testator's personal estate in no wise connected with any interest in land, in precedence to any payment thereout of the debts, funeral and testamentary expenses of the said testator, and the other legacies given by his will, and the costs of this suit; and it was also declared that the sum of £866 12s. 6d. £3 per Cent. Bank Annuities, (1) Law Rep. 6 Eq. 534. L. JJ. 1869 which represented the proceeds of the sale of the Madeira estate, was not such an interest in land as that a bequest thereof for charitable purposes was within the operation of the Mortmain Act, BEAUMONT and that the same was to be dealt with as personal estate in no wise connected with any interest in real estate, and applied accordingly. The first of the appeals was by the Royal Geographical Society and Reginald Thistlethwaite Cox their officer, and by the president, council, and fellows of the Royal Society of London, and the question raised by it was, whether the bequests of £4000 to each of the societies ought to have been declared to be legacies given for charitable purposes within the meaning of 9 Geo. 2, c. 36, and the Appellants also complained of the order because it gave the costs of the Royal Geographical Society and Cox only out of their share of the pure personalty, and gave no costs to the president, council, and fellows of the Royal Society. The Royal Geographical Society is a corporation the objects of which, as defined by its constitution, are "the improvement and diffusion of geographical knowledge." The Royal Society is also a corporation, incorporated "for improving natural knowledge." The second appeal was by the Plaintiffs, and raised the question in what way the debts, and funeral and testamentary expenses of the testator, and the costs of the suit, ought to be provided for, the Plaintiffs contending that the pure personalty ought to bear a pro rata share of them. Mr. Dickinson, Q.C., Mr. Archibald Smith, and Mr. Bagshawe, for the Royal Society and the Royal Geographical Society, in support of their appeal: These institutions are not charitable: Attorney-General v. Heelis (1); Thomson v. Shakespear (2); Whicker v. Hume (3); Morice v. Bishop of Durham (4); Mayor, &c., of Faversham v. Ryder (5); Denton v. Lord Manners (6); Jones v. Williams (7); Townley v. Bedwell (8); Carne v. Long (9); James v. Allen (10); (1) 2 S. & S. 67. (2) 1 D. F. & J. 399. (3) 7 H. L. C. 124. (4) 9 Ves. 399; 10 Ves. 522. (5) 5 D. M. & G. 350. (6) 2 De G. & J. 675. (7) Amb. 651. (8) 6 Ves. 194. (10) 3 Mer. 17. V. OLIVEIRA. I.JJ. 1869 BEAUMONT V. OLIVEIRA. Attorney-General v. Mayor of Dublin (1); Trustees of British Mr. Greene, Q.C., and Mr. Davey, for other societies. Their Lordships, without calling on the other side, stated their opinion to be that the Appellant societies were charitable foundations, but deferred giving their reasons until they disposed of the other appeal. Sir Roundell Palmer, Q.C., and Mr. Langworthy, for the Plaintiffs, in support of their appeal: The charitable legacies are not demonstrative legacies, and no case decides them to be so, though they have some similarity to the character of a demonstrative legacy. The authorities are against throwing the debts and costs exclusively on the mixed fund: Philanthropic Society v. Kemp (6); Sturge v. Dimsdale (7); Robinson v. Geldard (8); Tempest v. Tempest (9); Hobson v. Blackburn (10); Davidson's Conveyancing, "Wills" (11). Mr. Dickinson, Q.C., Mr. Archibald Smith, and Mr. Bagshawe, for the Royal Society and the Royal Geographical Society:— Tempest v. Tempest (12) is expressly in our favour, and the reversal (13) proceeded on the words of the will, which indicated an intention contrary to the view taken by the Vice-Chancellor. The principle of Robinson v. Geldard is, that these legacies are demonstrative legacies, and if they are, the costs and debts must, in their favour, be thrown on the other funds: Williams' Executors (14). Philanthropic Society v. Kemp, and Sturge v. Dimsdale, are distinguishable, owing to the special wording of the wills. The legacies are charged on all the property: Greville (1) 1 Bli. (N.S.) 312. (3) 5 Beav. 300. (4) 5 Hare, 484; 2 Ph. 594. (5) Cited 7 H. L. C. 155. (6) 4 Beav. 581. (7) 6 Ibid. 462. (8) 3 Mac. & G. 735. L. JJ. 1869 v. Browne (1); and therefore, so far as we are not paid out of pure personalty, we can come against the Madeira property, which can legally be given to charity, though we cannot support the view BEAUMONT that it is pure personalty. Mr. Davey, for the Royal Humane Society: These are demonstrative legacies: Acton v Acton (2). The Madeira estate is pure personalty for the present purpose: Noell v. Robinson (3), referred to without disapprobation in Williams' Executors (4). Mr. A. Bailey, for other charities: A gift in these terms to an individual would clearly be a demonstrative legacy, and it cannot make any difference that the legatee is a charitable body. Mr. Langworthy, in reply: If the charities come upon the Madeira property under the charge of legacies, there must be an apportionment of the surplus of the charitable legacies between the Madeira property and the impure personalty, and so much as falls on the latter must fail. Robinson v. Geldard (5) does not lay down that such legacies as these are demonstrative legacies, but only that they have something in common with them. A direction that charitable legacies shall be paid out of pure personalty is really nothing more than a declaration that there shall be marshalling. v. OLIVEIRA. Jan. 21. SIR C. J. SELWYN, L.J., delivered the judgment of the Court as follows: The Royal Geographical Society is a corporation, and its objects are stated to be and are, "the improvement and diffusion of geographical knowledge." The Royal Society is also a corporation, and its objects are "for improving natural knowledge." The objects of both these societies are public, and they are both (1) 7 H. L. C. 689. (5) 3 Mac. & G. 735. (3) 2 Ventr. 358. |