In re Beloved Wilkes's Charity. present matter. They say "that our regular annual meeting was held at the dwelling-house mentioned in the will of the testator, situate, &c. [His Lordship here read the affidavit of the trustees respecting the election, the effect of which has been already stated.] There is the previous promise that the application should be made to these gentlemen, and the letter immediately after the election, stating that it had been so. There is a correspondence subsequently quite consistent with that. Then there is the affidavit of the three clergymen that they did meet and distinctly considered the cases of these two youths. Well, now I have to consider these facts in relation to the inference which is drawn from the omission of an entry in the book, that Mr. Gale's pretensions were considered. On the question how far that omission leads properly to the conclusion that his case was not considered, it appears to me that the evidence greatly outweighs that conclusion, and goes the whole length of supporting the contrary conclusion. I am not to impute that there was any mala fides in the gentleman who gave that promise. I have not any ground before me to infer that he did not mean to perform it. I find him immediately afterwards corresponding as to having kept his promise, and I find it followed by a note in which there was nothing to imply that it was not considered well; and although I cannot exactly say why the entry in the book was omitted, yet having fully considered it, having looked at it in order to see if I could extract from it any thing to show that Mr. Gale's case had not been properly considered, I am not able to do so; because, although in the absence of any knowledge of the reason, I can conceive that they did not wish to put upon the books the rejection of Mr. Gale that it might stand there in the books and might be offensive to him, and that it was not necessary for the business for which they were there:- whether it could have been done in any mode to have avoided the present objection, I do not stop to inquire: -it does not appear to me that the absence of an entry in that book warrants the conclusion that it was not properly considered. Now, let me consider an objection, properly taken on the part of Mr. Gale. Young Mr. Gale, if equal with young Mr. Joyce, was entitled to the preference. Nothing is more clear; and if I saw any reason to doubt that the trustees entertained that opinion I should express myself more strongly; but there is no doubt that if there be in either of these parishes a youth who, in the honest judgment of these clergymen, or the majority of them, is a fit and proper person to be brought up as a minister of the Church of England, and his father is incompetent to bring him up to that respectable situation, he is entitled to the preference, although there may be twenty others fully equal. I see no reason to doubt the clergymen entertained that opinion. It is therefore not necessary for me to say more than that I entirely concur with them. I see no ground to suppose that they doubted about that, for this reason, that every part of their affidavit teems with statements that they did investigate and properly consider the parishes; and why have they done that, except that they considered the parishes were the places preferable to select the candidate In re Beloved Wilkes's Charity. from? But it is remarked, and justly remarked, that the affidavit does not, in terms, state that Mr. Gale was ineligible. It does not state it in terms: it would have been better if it had been more explicit; but at the same time I ought not to impute to these gentlemen an intention which I should not hesitate to do if I had evidence to warrant it, but which I shall be very slow to do if I have not, that is, to impute to three clergymen in the face of their parishioners that they made an affidavit with the intention to mislead the court and to disguise the truth. But let me look at the affidavit and see whether I can possibly understand it, treating them as honest men, as men not intending to deceive the court; let me see if I can read the affidavit without distinctly understanding them to say that Mr. Gale was not eligible, for if he was, I repeat, Joyce was not; Joyce's right to any consideration whatever depending upon young Gale not being eligible; it was not a case of comparative eligibility. Now what do they say? They say, having before said they had investigated the parishes, that they knew the individuals and families of the several parishes, they say, "that at this meeting when all were present, the cases of the youths, Joyce and Gale were then and there fully discussed and considered by us all impartially." How could they consider Mr. Gale's case impartially, except in considering whether he was or was not eligible, unless they acted upon the idea of comparative eligibility and comparative merit? And that although Mr. Gale might have a quantum of merit attaching to him, which would entitle him to be elected; yet, if it was not equal to Joyce's, Joyce was entitled to the preference; unless they entertained that notion, which I cannot believe, yet they could not have considered Mr. Gale's case fairly and impartially unless they considered it individually. The statement that they considered both cases does not lead to the inference that they did consider them in comparison one with the other. They would consider Mr. Gale's, and then having done so and disposed of Mr. Gale, they would consider of Mr. Joyce, and then when they did that, they found that not only they were right in not electing Mr. Gale, but that they were right in electing Joyce. They examined the cases of both, but that does not lead to the inference that they examined them in comparison, that is, they weighed the one case against the other, and therefore, when they speak of examining the parishes and say, "that Joyce's and Gale's cases were fully investigated and considered by them all impartially, that they had investigated all the parishes, and that in the full, and free, and fair, and bonâ fide exercise and discharge of the discretion and duty given to and reposed in them, they considered Joyce a proper object ;" and they could not, if they had properly considered Gale a proper object, have considered Joyce eligible. Although under the influence of that admission, I have as attentively as I was able considered how far the inference that was argued to be fairly deducible from the statement ought to be adopted by me, I must say that I consider this affidavit to import that Mr. Gale's merits were considered individually and that Mr. Joyce's merits were considered individually, and that it was upon what those gentlemen allege to be In re Beloved Wilkes's Charity. a conscientious conclusion that Mr. Gale was not eligible either in respect of his father's good circumstances, or in respect of himself, or for some of the many reasons which might well exist in determining upon the eligibility of a youth to be brought up as a minister of the Church of England. I must say that I consider that there was a pledge made by these gentlemen that they would consider Mr. Gale's case in all respects, and in the result they came to a conclusion adverse to his eligibility, and that they considered Joyce's case as to how far he was a proper person. Then, as to the objection of want of notice of the election. No particular form of notice was necessary. No doubt it ought not to be done in secret, in order to prevent the parish being aware of what is going on; that I have no hesitation in saying; but when I consider the recent investigation by the Commissioners of Charities, that it was matter of notoriety in the parish, and I can hardly conceive such an important peculiar charity as this would have been the subject of an investigation in the parish without its being generally known, and when I have no affidavit of any individual who could have desired notice, who comes and says he had not notice, I cannot consider that there was any mismanagement. The motive, therefore, not being established arising out of any exclusive rule that they had no right to adopt, the absence of notice forming no objection, the affidavits stating the names of each of the candidates were fairly, honestly, and impartially considered; when I have their oath to that effect, and when I cannot discover upon the face of the affidavits any one fact which at all warrants me doubting that their statements upon that subject are correct, I own it does appear to me that I have no just grounds upon which I can claim the right to exercise the discretion and to say that Mr. Gale was eligible, and that Mr. Gale therefore ought to have been elected. Then, to what conclusion should this lead? I am not aware of any instance in which trustees have ever been fixed with costs, except where they have either acted upon improper motives, or have acted under any neglect or in an incautious manner, so that their conduct must be considered as amounting to a breach of their trust. In such cases I conceive trustees ought to pay costs; but if trustees are brought before the court upon a petition disclaiming all imputation of indirect motive, and a distinct statement that all that is imputed is a miscarriage in point of duty, and I do not find that miscarriage to have been the result of that degree of neglect which I think would have amounted to a breach of trust, I see no reason to charge those gentlemen with costs. In proportion as their duties are imperative, in proportion as their motives ought to be high and pure, in that proportion ought they to be punished when they act in breach of those duties. But at the same time when the clergymen of three parishes have been exercising an exceedingly delicate and important trust, I own I should require myself to be well satisfied that they had either acted most improperly or neglected their duty before I held them in the face of their several congregations and the public as men who had violated their duty, as men who ought not to be trusted, and as Stevens v. Williams. men who ought to be punished by having to pay costs. I see no ground for imputing any such conduct to these trustees, and I think, therefore, that they are entitled to their costs. Then comes the question with regard to the petitioners. It is plain the petitioners have proceeded under an impression that the trustees had acted in error, that the trustees were governed by motives and acted upon rules, as to which I think they were mistaken; but, at the same time, I should be sorry to fix any stigma upon these gentlemen of their having acted upon an improper motive. On the whole, it seems to me that I must order the petitioners to pay their own costs, and the costs of the trustees to be paid out of the charity fund. STEVENS V. WILLIAMS.1 May 1, 1851. Practice - Married Woman- Next Friend-Security for Costs. Security for costs ordered to be given in a suit in which a married woman was plaintiff by her next friend, the next friend being a laborer. MOTION, by defendant, that the next friend of the plaintiff, a married woman, might give security for the costs of the suit. The next friend was a relation of the plaintiff's, and she swore that he was the only person whom she could procure to be her next friend, in a suit instituted, as this was, against a rich banker in her neighborhood. The next friend was not alleged to be in debt, and the only objection that was made to him, was that he was a laborer. Mr. Bethell and Mr. Glasse moved, and cited Pennington v. Alvin, 1 Sim. & Stu. 264; and Drinan v. Mannix, 3 Dru. & Warr. 154. Mr. Rolt and Mr. Renshaw, opposed, and cited Dowden v. Hook, 8 Beav. 399; Fellows v. Barrett, 1 Keen, 119; and Jones v. Fawcett. They said that a defendant had no right to insist on the solvency of a next friend, except where the plaintiff applied to change him; and that there were peculiar circumstances in Pennington v. Alvin, on which the decision in that case was founded. The VICE-CHANCELLOR said that any person might institute a suit on behalf of an infant; but a suit in which a married woman was plaintiff, was her own suit, and her next friend was selected by her; that the reason given by Lord Langdale for his decision in Dowden v. Hook, led him to a contrary conclusion; and that he must act 11 Simons, N. s. 545. Bell v. Jackson. according to what was stated to be the practice of the court in Pennington v. Alvin and Drinan v. Mannix, and should make the same order as was suggested in the former and made in the latter of those cases, namely, that all proceedings in the suit should be stayed until security for costs should be given in the usual manner. The notice of motion asked that the master might be directed to approve of the security; but it was said that the security to be given was a bond for 100%. BELL V. JACKSON.1 May 6, 1851. Will-Construction- Absolute Gift. Testator gave 4000l. to his granddaughter, and directed his executors to pay it to her on her attaining twenty-one, and to apply the interest of it for her maintenance, during her minority. By a codicil, he directed that his granddaughter should have only the interest of 2000l., for her maintenance, until she attained twenty-three, and that the interest of the other 2000/. should be accumulated, and that, on her attaining twenty-three, his executors should have the whole settled upon her, for her life, and, after her death, to her child or children, in equal proportions so that no husband of hers might spend it. The granddaughter attained twenty-three, and died without having had a child and without the executors having made any settlement of the legacy. Held, that the gift in the will, was an absolute gift, and that, in the events that had happened, it was not affected by the codicil. THIS was a special case, stated for the opinion of the court under Sir Geo. Turner's act, 13 & 14 Vict. c. 35. Thomas Biddles the elder made his will, dated the 25th of October, 1834, which, so far as it need be stated, was as follows: "I give to my granddaughter, Elizabeth Biddles Noon, the sum of 40007, to be paid to her on her attaining the age of twenty-one years; and I direct my executors to place the same out at interest, and apply a competent part of such interest for her maintenance, education, or advancement in life, until she shall attain that age; but, in case she shall die under that age, then the said principal sum and all unapplied interest, and her share of the residue of my estates, shall go and belong unto all my sons and my daughter, Mary, in equal shares, absolutely forever. I give, devise, and bequeath all the residue and remainder of my real and personal estate whatsoever, equally between and amongst my sons, James, Robert, John, William, and Thomas, my daughter Mary, and the said Elizabeth Biddles Noon, and to their several heirs, executors, administrators, and assigns, absolutely." The testator made a codicil dated the 21st of January, 1837, which, so far as it need be stated, was as follows: "I will and direct that my granddaughter, Elizabeth Biddles Noon, 11 Simons, N. s. 547. |