1778. WHITE V. WHITE. [ 14 ] S C. Serj. Hill's MSS. 10 vol. 263. 11 vol. 134. Mr. Mansfield, (for the hospitals):-The obliteration of the name shall not defeat the intent, so as to prevent the money from going to some one of, or all, the Lying-in hospitals. It is impossible it should go as it was left; but, under all the cases, the Court will stand in the executor's place. All the rules shew great latitude, and liberality of construction.-The only rule with which I have any thing to do is, that where the testator refers to any person who cannot act, the Court will carry the devise into execution as near as may be. The cases prove that, where money is indefinitely given the Court will exercise its judgment: If he had given it to such charity as the executor should name, the Court must have applied it*. Then if it was to exercise so large a power, why should it not exercise the more limited one? So if it had been to the hospital the executor should name, in this case, perhaps, the executor would not have been limited to give it to one hospital only. There are cases that come up to the present point-Attorney-General v. Syderfen, 1 Vern. 224. where the presumption was, that the testator had destroyed the writing, which is full as strong as revoking the name of the executor. In Doyley and others v. The Attorney-General, 4 Vin. 485. 2 Eq. Ab. 194. the discretion devolved to the Court. In Bailis and Church v. The AttorneyGeneral, 2 Atk. 239, the alderman, and principal inhabitants of Bread-street ward, were appointed to distribute the charity. There is no more difficulty in finding out which hospital is the most proper object of bounty, than which dissenting ministers could not be supported by the people. In this case, the discretion is brought within much narrower limits than in the former ones. It seems to me, the executor would not be confined to one hospital. Mr. Madocks (in reply):-It is clear the testator only meant it should go to one Lying-in hospital. Then the referring to the executor excludes every other power in the world from the nomination. The distinction between the cases is only this, that where the question is only how the charity shall take, it shall be regulated In the case of Widmore v. The Governors of the Corporation of Queen Anne's Bounty, 12th of December, 1766, Ambl. 637, and Highm. on Mortm. part ii, 10. Mr. Widmore, the testator, gave £200 to the corporation of Queen Anne's bounty, to augment poor livings; and directed his executors to divide the residue of his personal estate into three parts, and to pay one third either to the corporation of Queen Anne's bounty, or the society for propagating the gospel; another third to his most necessitous relations, by his father's and mother's side; and the third to some public charity. The legacy to the corporation of Queen Anne's bounty being held to be void, as, by the rules of that institution, it must be laid out in land, the third of the residue which was given to the same charity, or to the society for propagating the gospel, was ordered on the same account to be paid to the latter, and the legacy of the other third, to some public charity, was declared to be good, but that the executors ought to dispose of it under the eye of the Court, and therefore were to propose a charity to the Master (a), [(a) Vide Middleton v. Clitherow, 3 Ves. 734.] by by the Court, but not where the question is who shall take? In the first set of cases, they are all for charity generally.-The object is clear, and therefore, the mode not appearing, it devolves upon the crown. In The Attorney-General v. Syderfen, the object was certain, and the same in the case of the ward of Bread-street. Lord Chancellor.-It seems if this had been a private legacy, and a selection of objects out of which the legatee was to be chosen, it is allowed that it would be of the essence of the legacy, and it could not take place unless there was an expression of general favour, to let in all the objects. The cases must be considered in order to form a line of distinction. The case of Syderfen goes beyond all the rest, because the will of the testator is to be explained by the grant of the crown.-My notion is, that in the case of charities this Court derives a great latitude of authority, from the extensive nature of most charities; because they cannot go upon the same strict rules which prevail in private cases. But that is well resolved into the purpose and the mode. Where the testator is willing it shall go in the largest extent, you only follow his intent in marking out objects. I wish to follow this method in construing the intent of testators. I have stated a distinction between charities and private cases, so as to lay down a latitude more wide than is to be wished to be left to courts of justice. In the Downing College case, the difficulty was, that, when the anterior estates were spent, there was nobody to take the equitable dominion; and the question was, whether the analogy held between it and a legal estate, with nobody to take, which descends to the heir at law, till an object arises. object arises. Even in private cases, the distinction between the object and the mode has been attended to. I will look into the cases whether selecting one out of the objects is regulating the mode only. Lincoln's-Inn-Hall, 28th July, Lord Chancellor gave judg ⚫ment in this case. The question is here, whether the legacy is void, the executor's name being struck out, and there being no person upon whom it could devolve; or whether the Court will sustain it. It has been argued that the Court has great extent of jurisdiction, in making legacies certain which were before uncertain; and secondly, in applying them where it is not known to what use they were intended. There has been at all times an exercise of this authority, where a legacy has been doubtfully given, as in AttorneyGeneral v. Syderfen, which was a legacy to such charitable uses as he had appointed, but the appointment was not found; the Court decreed the charity to be directed by the crown, as there had been an appointment. In Wheeler v. Sheer, in Lord King's time (Mos. 288, 301.) there was no appointment, but the testator had procrastinated the legacy; that evidence satisfied Lord King, that the testator had not so fixed his mind as to separate the legacy from 1778. WHITE v. WHITE. [ 15 ] the 1778. WHITE บ. WHITE. the personal fund, and he would not carry the charity into execution (a). The cases have proceeded upon notions adopted from the Roman and civil law, which are very favourable to charities, that legacies given to public uses not ascertained shall be applied to some proper object. From Swinburn, down to Lord Hardwicke's time, that would be the effect where the object is disappointed: but the present case is different. Here the testator giving a legacy to the next of kin, and to the executor, names a particular charity a residuary legatee; the question is, only, how the trust shall be carried into execution. I remember to have read a case somewhere*, where a legacy is given to B. for the benefit of non-conforming ministers, with the advice of C. and D.At the testator's death B. C. and D. were all dead, yet the Court sustained the legacy. It must be referred to the Master, to which of the Lying-in hospitals it shall be paid (b). This is the case of Attorney-General v. Hickman, 2 Eq. Ca. Abr. 193. [(a) See Lord Eldon's observations in dissenting from this opinion, 7 Ves. [(b) Vide Moggridge v. Thackwell, post, vol. iii. p. 517. And the note at the end of it, where the subsequent cases upon the cy-pres doctrine are re ferred to.] [ 16 ] S. C. 11 Serj. Hill's MSS. 501. Bond of a femecovert, jointly with her husband, shall bind her separate pro. perty. HULME 7. TENANT and his Wife. A BILL filed by the obligee of a bond, to secure £180 entered into by the defendant's husband and wife; against the husband, wife, and her surviving trustee, to recover the sums secured out of the wife's separate estate. Upon the marriage the estates of the wife had been conveyed to trustees; one part consisting of freehold and leasehold lands, in trust to receive and pay the rents and profits to the wife, for her separate use, and to convey the estate itself to such use as she by her last will in writing, or by deed or writing under her hand and seal, executed in the presence of two witnesses, should appoint, in default of appointment, to the use and behoof of her heirs and assigus: other parts to be sold, and out of the produce, £1,000 to be laid out according to the directions of the wife, the interest and profits to be paid to her, and the principal to her, or her order by note or writing under her hand; and for want of such appointment to her executors, administrators, and assigns. This £1,000 had been raised, and the whole or the greatest part applied, so that the question in the cause was with respect to the remedy against the other estate. In 1769 the husband borrowed of the plaintiff Mrs. Hulme £50, upon his and his wife's bond. In 1770, having occasion for a further sum, the wife herself herself applied to the plaintiff and borrowed £130, paid the interest due upon the former sum of £50, and gave a new bond for the £180.-The cause had been heard before Lord Bathurst, who dismissed the bill. It came on now to be re-heard. Mr. Mansfield opened for the plaintiff, but the reporter was absent. Mr. Attorney-General, for the defendants. The plaintiff is not entitled to the relief of a court of equity, but is to be left to make the best she can of the security at law. Trustees for a woman, are appointed for the purpose of preventing her from doing acts prejudicial to herself, under the influence of her husband. The husband's credit not being good, the plaintiff has taken the wife's bond. The husband was indebted. He and his wife are co-obligors, and it is done with the approbation of the plaintiff's attorney, who must know it was void. He ought to have insisted upon a mortgage of her separate property. This Court will never look upon bonds as appointments, where the party could not enter into the bond. In many cases of bonds with penalties, the Court considers the bond as the form only, and as evidence of the substance, and will not suffer the party to be free upon payment of the penalty: but in the case of an infant, where it is voidable only, the taking of the bond will not aid the taker in equity. I do not contend that a married woman cannot contract in respect to her separate property, but the party contracting must take a security agreeable to the nature of the property-he cannot better his security. Peacock v. Monk, 2 Ves. 190. closes with a dictum, the authority of which is very doubtful; it had no affinity to the principal question. Mr. Selwyn (on the same side).-There is no case where the point has been determined that a bond, in which the wife joins her husband, binds her separate property. Norton v. Turvill, 2 P. W. 444, was against the wife's representatives, which is very different from the present against the separate property settled upon her for life. Lord Chancellor.-Grigby v. Cox, 1 Ves. 517, appears to be a decree for a specific performance. The defect of that case is, that it does not state the trust. It is said, that a feme covert is to be considered as a feme sole, with respect to every authority she can exercise over her separate estate; but it is different where the consent of the trustees is made essential to the conveyance, although the mere appointment of trustees is not sufficient to deprive her of that authority; for there must be trustees, otherwise she could have no separate property. Mr. 1778. HULME v. TENANT. [ 17 ] 1778. HULME v. ΤΕΝΑΝΤ. [ 18 ] Mr. Selwyn. In Biscoe v. Kennedy, Sir Thomas Clarke thought it was to be considered as the property of a feme sole; but, in that case, the bond was given before the marriage of the parties. Lord Chancellor.-Do you consider that case as deciding that her property was liable to her acts only whilst she was a feme sole? Mr. Selwyn. A feme covert can execute no act except by virtue of a power, or with the consent of the trustees, or by some means referring to her separate property; but, in this case, there is no reference whatsoever to her separate property, or consent of trustees. It is not wholly immaterial that the plaintiff has sued at law. In Machorro v. Stonehouse, in July last, upon marriage, a sum was agreed to be laid out in the funds, upon trust, that the dividends should be to the separate use of the wife; the plaintiff bought the interest during the lives of the husband and wife for eight years purchase; 'there was no fraud: a bill was brought against the trustee for a transfer.-Mrs. Stonehouse, in her answer, insisted this was against her consent, but there was evidence in the cause that they both consented.-This bill, so circumstanced, was dismissed with costs, by his Honor, who seemed shocked at the proposition, that a married woman could be bound by an act done in conjunction with her husband. Mr. Mansfield (in reply).—It is now laid down that a woman having separate property, cannot dispose of it but by the means pointed out by the settlement and with the consent of her trustees. It seemed to me that a feme covert, having separate property, was to that intent a feme sole, and might borrow money and give securities. The consent of the trustees has been decided not to be * Biscoe v. Kennedy, at the Rolls, 21st July, 1762, the defendant Jane Kennedy, then the widow of Ormond Tomson, Esq. being indebted to the plaintiff Biscoe, in £114, by bond, 22d April, 1755, and being possessed of several leasehold houses, and of £1,000 East India stock, by settlement on her marriage with the defendant James Kennedy, all her personal estate (excepting £500 East India stock, which the husband was to have) was conveyed to the defendant M'Cullock, in trust, for the separate use of the defendant Jane. The marriage having taken effect, the plaintiff filed his bill (without having sued the husband) to have the separate estate of the wife applied to the payment of the debt; which bill was dismissed. The plaintiff then sned out writs against Jumes and Jane Kennedy; but James Kennedy absconding could not be served, and the plaintiff proceeded to outlawry, and then filed this bill to be paid out of the wife's separate estate.-The defendant insisted, that during her husband's life her separate property was not liable to this debt, contracted by her while sole. The plaintiff contended, that the settlement was, as to him, fraudulent. Upon the hearing his Honor declared that, upon the circumstances of the case, the effects of the defendant, vested in her trustee, were to be considered as the property of a feme sole, and ordered plaintiff's debt and costs to be paid out of the £500 Eust India stock, in the hands of the trustee (a). [(a) See one point of this case, 2 Wils. 127.] necessary; |