Attorney General, at the Relation of the University of Cambridge, against Lady Downing and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1767 |
| Date | 01 January 1767 |
| Court | High Court of Chancery |
English Reports Citation: 97 E.R. 1
IN CHANCERY.
S. C. Ambl. 571; see Roson v. Flight, 1864-65, 34 Beav. 119; on appeal, 4 De G., J. & S. 608; In re Smith, Bilke v. Roper, 1890, 45 Ch. D. 638.
NOTES of OPINIONS and JUDGMENTS DELIVERED in Different COURTS, by the Right Honourable SIR JOHN EARDLEY WILMOT, Knt, late LORD CHIEF JUSTICE of the COURT of COMMON PLEAS, and One of HIS MAJESTY'S Most Honourable PRIVY COUNCIL. 1802. [1] in chancery. the attorney general, at the Kelation of the University of Cambridge, against lady downing and others. 1767. [S. C. Ambl. 571; see Eobson v. Flight, 1864-65, 34 Beav. 119; on appeal, 4 De G., J. & S. 608; In re Smith, Bilke v. Roper, 1890, 45 Ch. D. 638.] Sir George Downing, of Gamlingay, in the county of Cambridge, Baronet, being seised of, or otherwise entitled in fee-simple to divers freehold, copyhold, and leasehold estates, in the counties of Cambridge, Bedford, and Suffolk, by his will, bearing date the 20th of December 1717, gave and devised all his manors, lands, tenements, and hereditaments, both freehold and copyhold, as well as leasehold for years, situate, lying, and being, in the several counties of Cambridge, Bedford, and Suffolk, and elsewhere, witk their rights, members, and appurtenances, unto James Earl of Salisbury, Charles Eafl of Carlisle, the Honourable Nicholas Lechmere, Chancellor of the Dutchy of Lancaster, John Pedley and Eobert Pullyn, Esquires, to hold all such of the said manors, hereditaments, and premises, whereof he was seised of any estate of [2] inheritance, or freehold, unto them and their heirs, upon the uses, trusts, intents, and purposes in his said will after declared, limited, and appointed, concerning the same; and to hold all such of the said manors, hereditaments, and premises, whereof he had any estate for any term or terms of years, unto the said trustees, their executors and administrators, upon the uses, trusts, and purposes, therein likewise after declared, limited, and appointed, concerning the same: and he did by his said will limit and appoint all such of his said manors and hereditaments, whereof he was seised of any estate of inheritance or freehold, to the use of his cousin Jacob Garret Downing, son and heir apparent of his uncle Charles Downing, for the term of his natural life, without impeachment of waste; and immediately from and after the determination of that estate, to the use of the said trustees, and their heirs, to preserve contingent remainders; and from and after the decease of him the said Jacob Garret Downing, to the use of the first son of the body of the said Jacob Garret Downing, in tail male ; and for default of such issue, to the use of the second, third, fourth, fifth, and every other son and sons of the body of the said Jacob Garret Downing, severally and successively in tail male; and for default of auch issue, to the use of the second, third, fourth, fifth, and every other son and sons of the body of the said Charles Downing, successively in tail male ; and for default of such issue, to the use of Thomas Barnardiston, of Bury St. Edmund's, in the county of Suffolk, Esquire, son and heir apparent of his aunt Barnardiston, wife of Thomas Barnardiston, during the term of his natural life, without impeachment of waste; remainder to trustees, to K. B. xxvi.-1 2 ATTORNEY GENERAL V. LADY DOWNING WlUtt. 3. preserve contingent remainders; remainder to the use of his first and other sons [3] successively in the same manner; and for default of such issue, to the use of his cousin Charles Peters, then or late of the University of Oxford, for the term of his natural life, without impeachment of waste; and immediately after the determination of that estate, to the use of the said trustees, to preserve contingent remainders; and immediately from and after the decease of the said Charles Peters, to the use of the first and other sons of the body of the said Charles Peters, in the same manner; and for default of such issue, to the use of his cousin John Peters, then or late of the same university, brother of the said Charles Peters, during the term of his natural life, without impeachment of waste; and from and immediately after the determination of that estate, to the said trustees, to preserve contingent remainders; and immediately after his decease, to the use of the first and other sons of the body of the said John Peters, in the same manner; and for default of such issue, to the use of the said trustees, and their heirs, in trust, " that they do and shall, so soon as may be, by, with, and out of the rents, issues, and profits of the premises, buy and purchase the inheritance and fee-simple of some piece of ground, lying and being within the town of Cambridge, proper and convenient for the erecting and building a college, and thereon" shall erect and build all such houses, edifices, and buildings, as shall be fit and requisite for that purpose; which college shall be called by the name of Downing College; and my will is, that a charter-Royal be sued for and obtained for the founding of such college, and incorporating a body collegiate by that name, in arid within the University of Cambridge, which college or collegiate body, shall consist of such head or governors, and of such fellows, scholars, members, and other persons for the time being, [4] and shall be maintained, governed, and ordered by such laws, rules, and orders, and in such manner, and therein shall be professed and taught such useful learning as my said trustees, or their heirs, by and with the consent and approbation of the most reverend the Archbishops of Canterbury and York, and the masters of Saint John's College and Clare Hall, in the said University of Cambridge, in being at the time of the founding of the said college, shall direct, prescribe, and appoint; and immediately from and after the founding and incorporating such college or body collegiate as aforesaid, the said" trustees, "and their heirs, shall stand and be seised of all and singular the said manors, lands, tenements, and hereditaments, in trust for the said collegiate body and their successors for ever." And as for and concerning such of the said manors, hereditaments, and premises, whereof he was possessed of any estate for term or terms of years, he declared and appointed that the said trustees, and their executors and administrators, should from time to time assign and convey the same unto such person and persons as should be entitled to the actual possession of his said lands of inheritance, by virtue of the limitations thereof in his said will before mentioned : provided always, that if any of the said lands and premises should come to or be vested in any male person or persons, whose surname should riot be Downing, then such person or persons should thenceforth take the name of Downing only; and upon refusal or neglect to take the said surname of Downing in manner aforesaid, then the uses and limitations to the person or persona so refusing or neglecting, to be void, and the premises to go and remain to such person and persons, and to such uses, as the same would or should do by virtue of any of the limitations before mentioned, in case the [5] person or persons so refusing or neglecting to take the surname of Downing had been naturally dead; and as for his personal estate, he gave all his goods and chattels unto his said cousiu Jacob Garret Downing, whom he constituted sole executor of his will. By a codicil to his will, the said testator gave two annuities, and charged all his, lands with the payment thereof. The testator, Sir George Downing, died on the 20th of June 1749, without issue, leaving Sir Jacob Garret Downing his heir at law, who entered upon the freehold, copyhold, and leasehold estates of the testator, and enjoyed them till his death in 1764. He never had any issue; and Thomas Barnardiston, Charles Peters, and John Petera, died in his life-time, without having had any issue; nor was there any other son of Charles Downing, or of the testator's aunt, Barnardiston, All the trustees died in the life of the testator Sir George Downing. Sir Jacob Garret Downing, by his will, dated the 12th of August 1763, gave to his wife, Lady Downing, and to her heirs, executors, administrators, and assigns, all his real and personal estate, charged with the payment of several legacies and annuities, and appointed her sole executrix. Upon his death in 1764, she entered WILM. 8. ATTORNEY GENERAL V. LADY DOWNING 3 upon all the freehold, leasehold, and copyhold estates, devised by Sir George Downing. On the 9th of May 1764, the information was filed against Lady Downing, and the heirs at law of Sir Jacob Garret Downing, and the other proper parties; praying that the will of Sir George Downing might be established, and the trusts thereof carried into execution; that an account might be taken of the money received by Lady Downing from the rents and profits of the said freehold, [6] copyhold, and leasehold estates, become due after the death of Sir Jacob Garret Downing, and that a receiver might be appointed. This cause was heard before the Lord Chancellor Camden, assisted by Sir Thomas Sewell, Master of the Rolls, and Lord Chief Justice Wilmot, on the 19th and 27th of May, and the 18th of July 1767; and on the 17th of June 1768, Lord Chief Justice Wilmot delivered his opinion as follows : This case, on which your Lordship has done me the honour of asking my opinion, comes before the Court upon an information, brought by His Majesty's Attorney General, to have an execution of the trusts of the will of Sir George Downing; and in order to deliver my sentiments to your Lordship with as much perspicuity as I can, I will, first, very shortly state the case, and then mention the questions, under which I mean to consider it. Sir George Downing, seised of an equitable estate in fee, and...
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