L. C. 1869 GENERAL v. Greenhill) was filed at the relation of Trinity College, Oxford, against F. Greenhill, the then lessee of the lands, in order to ATTORNEY- ascertain the construction of the devise contained in the will; and by a decree made by the Master of the Rolls on the 7th of December, 1863, it was declared that the direction contained in the will as to leasing the estate at one-third under the true value was void, and that the whole interest in the said estate was given to the two Colleges, and a scheme was directed to be settled accordingly (1). Sidney Sussex College was not a party to that suit. v. SIDNEY COLLEGE. On the 18th of March, 1864, the present information was filed, in which Joseph Greenhill, a descendant of a brother of the testator's second wife, was the informant, and the Master, Fellows, and Scholars of Sidney Sussex College, and the President, Fellows, and Scholars of Trinity College, and Frederick Greenhill, were Defendants, stating as above stated, and praying a declaration that the educational gift and the gift to the poor kindred made by Article 22 of the will were good charitable gifts, and praying that the construction of the will, so far in particular as it regarded the said gifts, and the direction to lease the said estate at Abbots Langley, and generally of Article 22, might be declared and settled by the Court. The information came on to be heard before the Master of the Rolls, who made a decree making certain declarations and directing inquiries, which decree was varied on appeal by striking out the declarations and extending the inquiries so as to include both descendants and poor kindred. The result of the inquiries was, that a large number of persons, both male and female, were found to be descendants, but no poor kindred other than descendants came in under the advertisements. The information came on again before the Master of the Rolls, who, on the 20th of November, 1868, made a declaration that the lands in question were vested in Trinity College and Sidney Sussex College in equal moieties as tenants in common, in trust to educate or to provide for the education in piety and learning of four of the descendants of the testator's brothers and sisters, and three of the descendants of the brother and sister of the testator's first wife, and three of the descendants of the brothers and sisters of his second wife, such ten persons to (1) 33 Beav. 193. be selected in turns by each of the Colleges. And his Lordship declared that the term " descendants" included females as well as males, and was not confined to persons of an age to receive education at either of the said Colleges, and declared that, in default of such persons being in existence and being so selected and educated as aforesaid, the poor kindred of the testator's wives were entitled to the gifts of the testator for their own absolute use and benefit. And his Lordship directed a scheme to be settled, as reported (1). Each of the Colleges appealed from this decree. Mr. Cole, Q.C., and Mr. Rigby, for Sidney Sussex College: We contend that, according to the true construction of this will, any persons claiming the benefit of the gift must do so by entering as members of the College, and following the regular course of University education; and that whilst there are no claimants the College is entitled to the rents of one moiety: Thomason v. Moses (2). If it is merely a gift to these descendants, and not a gift for the purpose of education, it is not a charity and is void. Moreover, if there is any doubt as to the construction of this will, then usage and the long acquiescence of the persons who could have claimed are conclusive in favour of the College: Attorney-General v. Smythies (3); Attorney-General v. Pearson (4); Attorney-General v. Caius College (5); Attorney-General v. Catherine Hall, Cambridge (6); Attorney-General v. Mayor of Bristol (7). Mr. Jessel, Q.C., and Mr. Vaughan Hawkins, for Trinity College: The only trusts are for education, and the information, so far as it relates to the poor kindred, cannot be supported until the descendants have failed. The trusts of the will have been properly performed, and if there is any doubt as to the meaning of the will, the usage of 200 years must be considered: Attorney-General v. Corporation of Rochester (8). (1) 34 Beav. C54. (2) 5 Peav. 77. (3) 2 Russ. & My. 717, 749. (5) 2 Keen, 150. (7) 2 Jac. & W. 294, 311. L. C. 1869 ATTORNEY GENERAL v. SIDNEY SUSSEX COLLEGE. L. C. 1869 ATTORNEY- v. SIDNEY SUSSEX Mr. J. H. Palmer, Q.C., and Mr. Bedwell, for the relator and other descendants claiming under the will, supported the decree: If the Colleges accepted these trusts, they must perform them according to the terms of the will, and there is nothing in the will to make it necessary that those who claim the benefit of the COLLEGE. charity should become members of either College. There is no declaration of any intention to benefit the Colleges, who are mere trustees, first, for the descendants, and, failing them, for the poor kindred Christ's Hospital v. Grainger (1). If this had been a gift to a City company, they could not have confined the charity to members of the company or their children. Sidney Sussex College contends that their moiety, at all events, is freed by the statute of the University Commissioners, but the trust is indivisible, and if one moiety is not freed the other cannot be. Moreover, our right to be educated at these Colleges is a beneficial interest under the will, and as such is reserved by the statute. Mr. Hemming, for descendants of the testator's brothers, adopted the arguments of the relators, so far as their interests were identical: We do not contend that the second portion of the gift is charitable and not educational, and are content to consider it educational. We do not dispute the right of the Colleges to exercise a large discretion in the administration of the trust. The trust is for the benefit of certain descendants and poor kindred; and if it were possible to exhaust the funds by educating members of that class within the College walls, it might be competent to them to do so; but when this is found impossible, the surplus should go to the education elsewhere of the designated class, and not to the Colleges; and we say that a scheme must be framed accordingly. Mr. Wickens, for the Attorney-General. Mr. Cole, in reply, for Sidney Sussex College, cited Incorporated Society v. Richards (2) as to the effect of usage, and In re Chelmsford Grammar School (3). Mr. Vaughan Hawkins, in reply, for Trinity College. (1) 1 Mac. & G. 460. (2) 1 D. & War. 253, 294. (3) 1 K. & J. 543. Mar. 24. LORD HATHERLEY, L.C.: L. C. 1869 GENERAL V. SIDNEY SUSSEX COLLEGE. The principal point that arises in this case is whether, under the will of Francis Combe it was intended that the property devised ATTORNEYto these two Colleges should be taken by them upon trust to educate the persons specified by the will in piety and learning, as the Colleges were in the habit and custom of educating those who resorted to them for education; or upon trust to educate ten persons, to be selected out of the whole body of the testator's kindred, whether girls or boys, and to provide for them somewhere, and in some manner, subject to the regulation and direction of this Court, if not under the direction of the Colleges themselves. I can find no case in which a bequest was worded in a manner precisely similar to this, or so analogous to it as to afford me any useful precedent. I am therefore obliged to consider it principally upon the actual form of the will as the words express, or are intended to express, the testator's meaning, and to come to the best conclusion I can upon the words, regard being had to the time when, and the circumstances under which, the will was made. [His Lordship then commented on the terms of the will, observing that it was very informal, and must have been written at different times, and referring to the bequest of books to the two Colleges as proving an intention to benefit them, and to the directions as to teaching poor children at Hemel Hempstead as shewing his regard for education, continued:-] His Lordship the Master of the Rolls seems to have been led in a great measure to the conclusion that this was a general trust for education by the arguments that this is only a gift to the two Colleges-that no place of education. is named-that it does not follow necessarily that, because a gift is made to a College, therefore it should be for the purpose of educating there-and that it may have been that the testator selected these two Colleges as other persons have selected, for the purpose of continuous charities, corporate bodies for the administration of charities, without the corporate bodies being called upon in any way to assist in the due administration of the charity, beyond seeing that the trust is executed. No doubt, there are such cases: as, for instance, the case of the Incorporated Society v. Richards (1), and the case of Sonley v. Clock(1) 1 D. & War. 258. L. C. 1869 ATTORNEY v. makers' Company (1), in which a bequest has been made to a corporation entirely for private purposes. But the questions I have to consider are, what was the course of education conducted at these GENERAL Colleges, and what these words "piety and learning" in particular point to with reference to the Colleges, and with reference to the duties they were performing; and then I have to consider also the remarkable fact that the testator has not merely chosen one corporation for his trustee in order that the trusts may have a perpetual endurance, but has designated two Colleges as trustees for the purposes of his will. SIDNEY SUSSEX COLLEGE. Let us first consider what would be the natural conclusion to be drawn when a person has made a gift for certain purposes to a corporate body which is in the habit of doing that which he wishes to have done. I apprehend (although I have not found a case precisely in point) that the natural conclusion would be, that the objects of the gift should be dealt with in the manner in which the corporate body dealt with all other persons committed to their charge. I will put the case of a gift of a sum of money to one of the corporate bodies in the City of London, to be employed in apprenticing young men in the days when apprenticeship was necessary. Surely the first impression would be, that the gift was for apprenticing them in the craft to which the corporate body belonged. Or put the case of a gift by a testator to the corporation. of St. Bartholomew's Hospital on trust that they should at all times attend to the curing and healing of ten of his sick relations. Could anybody suppose it was not to be done at the hospital, or that the corporation was bound to seek out all over England any ten of the testator's relations and treat them wherever they were found? This subject, as I said before, is almost without authority, although there are certainly some observations made by Lord St. Leonards in the case of Incorporated Society v. Richards (2), to which I would rather refer than rely on my own opinion, when it is in conflict with that of the Master of the Rolls. Lord St. Leonards there says that the words of a devise to the Incorporated Society in Dublin, and their successors for ever, for promoting English Protestant schools in Ireland, including as they do the very objects for which the Society was incorporated, appear to (1) 1 Bro. C. C. 81. (2) 1 D. & W. 258, 294. |