In re Beloved Willkes's Charity.

the trustees on the ground of the petitioner being a farmer, and not in a position in society to warrant his son to be educated for the Church of England; that the said trustees nominated and selected the said C. Joyce without having previously, by advertisement or otherwise, announced that there was any vacancy in the scholarship, and without inviting applicants or candidates, and, as the petitioners believed, without making any inquiries whether in any of the prescribed parishes there was any lad eligible; and, as the petitioners believed, very few persons (if any) resident in any of the said parishes knew previously to the day on which the election took place that the trustees were going to meet for that purpose; that the said W. Gale was a fit and eligible object for the said testator's bounty, but that, as the petitioners believed, the said trustees considered they had an arbitrary power of selection, and that the sons of farmers and agriculturists were not desirable persons to be educated for the ministry of the church; and although the petitioners did not impute any corrupt motives to the said trustees, yet they submitted, that the said trustees had misconceived their duties, and had acted in the matters set forth contrary to the intentions of the founder and the said order of the 21st of December, 1847.

The trustees of the charity filed an affidavit, in opposition to the petition, by which it appeared, that there had been three previous elections to the benefit of the charity; and that in no instance had the persons been chosen out of any of the prescribed parishes, there not appearing to be, after a due investigation made, any proper object of the charity within the said parishes; that though the said C. Joyce was born in Ireland, his parents were only residents there for a temporary purpose, and that his ancestors and relations were resident in the parish of Pucklechurch; that the brother of the said C. Joyce was a minister of the Church of England, and was only known to the trustees as discharging such office; that the trustees, the deponents, were all well acquainted with their respective parishioners and their families, and in particular that the said W. Gale was known to the said L. B. Clutterbuck; that the regular annual meeting of the trustees was duly held in June, 1848, for the purpose, among other things, of nominating and electing a fit and proper object for the benefit of the said charity trust; and that "we were all present together during the whole of such meeting, and that the cases of the said youths, C. Joyce and W. Gale, were then and there fully discussed, and considered by us all most impartially; and that no other case was suggested to or occurred to any of us, although we had duly investigated and considered all the said parishes; and that in the full and free and fair and bona fide exercise and discharge of the discretion and duty given to and reposed in us, in and for the purpose of the execution of the charity, and without favor or affection, or caprice or ill feeling, towards or with respect to any individual, or any class or grade of persons whatever, we unanimously considered the said C. Joyce the proper object for the benefit of such charity trust, and elected him accordingly.

The petition came on to be heard, before the Vice-Chancellor of England, on the 9th of February, 1850, when an order was made,

In re Beloved Wilkes's Charity.

declaring that the election of Joyce was, under the circumstances, improper and a breach of trust; and that W. Gale was eligible; and that a new election should be had, and that the trustees should pay the costs.

The respondents appealed from this order.

Mr. Bacon, Mr. R. Palmer, and Mr. Harrison appeared for the respondents, the appellants.

Mr. Bethell and Mr. Schomberg, for the petitioners.

The following cases were cited:-The Attorney General v. Scott, 1 Ves. sen. 417. Fordyce v. Bridges, 2 Phil. 497; s. c. 17 Law J. Rep. (N. S.) Chanc. 185. Penny v. Turner, 2 Phil. 493; s. c. 17 Law J. Rep. (N. s.) Chanc. 133. Ex parte Wrangham, 2 Ves. jr. 609. In the matter of University College, Oxford, Ex parte Moorsom, 2 Phil. 521; s. c. 17 Law J. (N. s.) Chanc. 298. The King v. the Bishop of London, 13 East, 419. The King v. the Archbishop of Canterbury, 15 East, 117. The King v. the Bishop of Gloucester, 2 B. & Ad. 158; s. c. 9 Law J. Rep. K.B. 228. Ex parte Inge, in the matter of Catharine Hall, 2 Russ. & M. 590. The Attorney General v. Buller, Jac. 407. In the matter of the Bedford Charity, 5 Sim. 578.

April 28. The LORD CHANCELLOR. This is a petition which came before me under circumstances which create a considerable degree of responsibility and anxiety that I should come to a correct conclusion. I should have been glad to have taken somewhat more time upon the subject, but after as careful an examination of all the facts as I have been able to collect, I think the probability is, that I should not advance the justice of the case by keeping these parties in a state of anxiety and suspense any longer. It appears, about a century ago, a gentleman devised considerable property, which in its results was to be applied to the maintenance and education of a lad that should belong to either of four parishes, and who was fit and proper, according to the judgment of certain persons who were appointed to decide upon such fitness, who had the power of election and choice of the subject. They were to choose a lad who was "fit and proper to be brought up as a minister of the Church of England," and who was the son of parents residing in either of these four parishes, and who should not be able to maintain him or give him an education so as to place him in that responsible situation. It, therefore, was clear that it was the object of the founder that the four parishes should be enti tled to a preference. The whole trust is created in a form that might introduce considerable difficulty; for I will suppose for a moment that each of the parishes had a lad equally eligible, what were the trustees to do in that case? Why, they are left to exercise the best judgment they can upon the subject.

It appears, before the present trustees were appointed there had been three elections, and upon each of those elections, lads not belonging to

In re Beloved Wilkes's Charity.

the parishes, but without any question as to their being otherwise proper objects of the charity, were elected; and we then come down to the time of the present trustees; and it appears that there had been, during the time, I think, of Mr. Clutterbuck, an election in which there was also a lad, not of either of the four parishes, who was elected. Then, during the period of the present trustees, it seems that in the year 1848 there was a vacancy to be supplied, and the election was to take place in the month of June. Prior to that time, Mr. Gale, who is one of the gentlemen who join in the present petition, and the person principally interested, made an application to one of the three trustees to know whether the funds of the charity would be applicable to the maintenance and education of his son for the purpose and objects of the charity, and requested the interest of that particular trustee in favor of his son, if the funds were applicable, an application perfectly unobjectionable in itself, because, in requesting the interest of that gentleman I do not understand the word "interest" to be used in any improper sense, but that it was a courteous way of requesting his uninfluenced approbation, and not at all that the interest should be of a nature inconsistent with the duty the party had to perform.

An answer was returned to that by a gentleman of the name of Robinson to say he would take care to communicate his (Mr. Gale's) application to the trustees at their meeting, but that if he might express his individual opinion, it was, that the funds of the trust were not applicable to the education of his son, because Mr. Gale's son was not eligible, or to that effect. So matters remained until after the 13th of June, the day of the election. After the day of election, Mr. Robinson wrote to Mr. Gale to say that he had, according to his previous promise, made an application to the trustees, but that he had to inform him, that the funds were not at present considered applicable to the maintenance and education of Mr. Gale's son. That led to a further correspondence. Mr. Gale, not unnaturally taking a strong view of the pretensions of his son to the benefit of this charity, advised with his solicitor, and this led to a correspondence between the parties, which ultimately ended in the present petition.

Now, it is objected upon the present occasion, that the trustees upon that 13th of June, miscarried, in having elected a lad of the name of Joyce as the object of this charity, and afterwards in applying the funds for his benefit, pursuant to that election. They say first of all, that Joyce was not eligible absolutely; they further say that he was not eligible relatively, that is as contrasted with Gale; because they say that Gale was of the parish, and that he was qualified, and that he (no matter whether Joyce was equally qualified with him) would be more entitled to a preference cæteris paribus. They further say, that the trustees further miscarried in their duty by not having given due notice of their intention to proceed to that election; and that the effect of the absence of the notice might be to have excluded persons from making applications who were well entitled to have the funds of the charity applied to the education of their sons; and further they insist, as is implied from what I have stated, upon

In re Beloved Wilkes's Charity.

Mr. Gale's son being eligible. Now, there is a further complaint, that the trustees had laid down an arbitrary exclusive rule, namely, that the sons of farmers were not persons in a station of life fit to be the objects of this charity.

I have looked with considerable diligence to see if I could discover any foundation for the idea that the trustees ever had laid down any such rule, and I am quite unable to discover how the idea could have arisen. From what such an inference is drawn I cannot tell. It.is said that no lad of these parishes ever had the benefit of this charity, but that there have been at various times very respectable persons residing in these parishes whose sons were fit objects of the charity. Well, but upon what occasion has any thing occurred, which can fasten either upon the past trustees or the present trustees, any idea of such a rule as the exclusion of farmers' sons? It is not stated what were the positions in life of those persons who had been before elected; for aught that appears, they may have been the sons of farmers; because even Mr. Joyce's father is spoken of as a man who dealt in pigs, and so on. That does not shew that they were influenced in the election of Joyce by any aristocratic notion; and so in every other instance where the situation in life has been referred to of persons who were elected, I see no ground whatever for supposing that the trustees were acting upon any aristocratic rule, or any rule so absurd, as that a person- the founder, devising property for the benefit of the inhabitants of an agricultural district-intended that the sons of farmers in that district, sons of persons incompetent to maintain them, should not be eligible as the objects of this charity. But I see no occasion on which any expression is imputed to any former trustees, if that were material, nor any expression imputed to either of the existing trustees; nor any conduct of the former trustees, nor any conduct of the present trustees, which is at all consistent with their having laid down any such rule. That idea appears to me to be an entire error on the part of the petitioners, and that seems to me very much to have led to the proceedings which have taken place.

Well, then, independently of that supposed general error, it is said that no notice was given. Now, the affidavits, which I have read attentively, state-I think the full effect of them is, that the petitioners state their belief, that very few, if any, persons in the parishes at all knew of the intentions of the trustees to proceed to this election. The trustees say, we met at the usual time and place for the purpose of the election; none of the petitioners say that they were unacquainted with the purpose and object to proceed to the election, nor is there any affidavit of any one person in the parish stating that he was unacquainted with it. There are the affidavits of the petitioners that they believe several were; but there having been a very diligent canvass and examination through the parishes to make this material, I should have expected an affidavit of some one person who would have been a candidate for the application of this charity if he had had notice, but who was prevented by the want of notice. But no such affidavit has been made. The only candidate presented for this

In re Beloved Wilkes's Charity.

charity, on the 13th of June, when the election took place, was the young gentleman, Mr. Gale. Well, then, there being no possibility of injury to any human being, as far as these affidavits shew, by the want of notice, even if notice were necessary, it would amount in this case to a mere objection of regularity, and in the nature of a technical objection.

Well, then, supposing that ground is of the nature I have stated, I now come to the matter of the election. I have before observed what a delicate nature was the trust created by this will. The parents are, in the first place, to be in a situation unable to give their children an education proper and necessary to bring them up as ministers of the Church of England. How is their eligibility to be ascertained? Is it to be ascertained by calling upon them for an inventory of their property? Is it to be an inference from the general appearance or style of living, or how? What matters are to be furnished to the trustees to judge? Is there to be an investigation like an examination into the sufficiency of bail, whether a gentleman was, or was not competent, what his income was, what his style of living was, he exhibiting by his habits of living that which to him would be necessary, but which would be superfluous to another; what is to be the test of his eligibility?

Now the affidavits of the petitioners take opposite views. When the affidavits are dealing with the supposed aristocratic objection of the trustees, excluding farmers' sons, the affidavit says that Mr. Gale is, and as there is no doubt, a gentleman of communicative habits. and associated with other gentlemen; all they speak of is his comfortable circumstances according to his station in life. Then Mr. Gale, when he proceeds to details, says he has freehold property of such an amount and leasehold property of such an amount, and that he has personal property, whether 10,000l. in the funds or 1004. does not appear. He has personal property, but no amount given, and having first of all stated his general style and position in society, and contrasting that with the situation of persons who had been elected, in order to shew the superiority of his situation, that is done when the object was to establish the objection that the aristocratic objection had been improperly acted upon, and then Mr. Gale's situation and position and manner and circumstances are placed in a very respectable position.

It

Now there is, however, another thing to be taken into account. is to be made out, to prove his son eligible, that he was not competent to give his son an education. How is that to be made out by giving these details, and then saying in conclusion that having eight children, he does not consider himself competent, in reference to his duty to his other children, to maintain this son in the manner required to bring him up as a minister of the Church of England? How can I deal with that? How can I know what is the measure of his duty to his children? Is it because he cannot send them all to college, or that he cannot give adequate fortunes to his other children?

The trustees even had not the benefit of such an affidavit, nor did they call for such a document; all that the trustees could do was,