Between HM Attorney General, Informant; and The Deans and Canons of The Queen's Free Chapel of Saint George, within the Castle of Windsor, The Ecclesiastical Commissioners for England, HM Solicitor-General, and The Military Knights of Windsor Defendants
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1857 |
| Date | 01 January 1857 |
| Court | High Court of Chancery |
English Reports Citation: 53 E.R. 520
ROLLS COURT
Affirmed, 8 H. L. C. 369; 11 E. R. 472; 30 L. J. Ch. 529; 6 Jur. (N. S.) 833; 2 L. T. 578; 8 W. R. 477. See Attorney-General v. Marchant, 1866, L. R. 3 Eq. 429; Attorney-General v. Wax Chandlers' Company, 1873, L. R. 6 H. L. 19; In re Campden's Charities, 1881, 18 Ch. D. 319.
£679] Between her majesty's attorney-general, Informant; and the deans and canons of the queen's free chapel of saint george, within the Castle of Windsor, the ecclesiastical commissioners for england, her majesty's solicitor-general, and the military knights of windsor (nominatim), Defendants. Dec. 7, 8, 9, 10, 1857 ; Jan. 19, 1858. {Affirmed, 8 H. L. C. 369; 11 E. E. 472; 30 L. J. Ch. 529; 6 Jur. (N. S.) 833; 2 L. T. 578 ; 8 W. E. 477. See Attorney-General v. Marchant, 1866, L. R. 3 Eq. 429 ; Attorney-General v. Wax Chandhrs'Company, 1873, L. R. 6 H. L. 19; In re Campden's Charities, 1881, 18 Ch. D. 319.] The Military Knights of Windsor held entitled to nothing beyond the fixed payment given them by the original foundation, and to have no interest in the increase of the surplus rents. Lands of the annual value of £661, 6s. 8d. were conveyed to the Dean and Canons of Windsor, for the maintenance of specified charitable purposes, amounting to £430, including therein a fixed payment to the dean and canons, "and the residue, being (as the document stated) £231, 6s. 8d., to remain for the vicar's and serving priest's òwages, and, when need requireth, reparation of the said lands, the officers' fees, and for the relief of the said dean and canons and their successors." The rental increased to about £14,000 a year. Held, on the authority of The Attorney-General v. Beverley, that the dean and canons took beneficially the whole surplus rents, after paying the fixed charges. There is a resulting trust in the grantor, where lands are conveyed on charitable trusts to be afterwards declared, and no subsequent declaration is made. There is a presumption against persons who keep back a document, and against them the evidence is to be taken most strongly. A deed of 1559 presumed, under the circumstances, to have been executed by Queen Elizabeth. The Ecclesiastical Commissioners held entitled to no greater rights in the suppressed canonries, under the 3 & 4 Viet. c. 113, than the former canons were, and to be subject to the same trusts. This information was filed by the Attorney-General ex officio, in consequence of an address of the House of Commons to Her Majesty on the subject, and the question was, whether the Military Knights of Windsor were entitled to participate in the increased revenues of the "new dotation" acquired under Edward VI., the dean and canons having claimed and [680] applied to their own use the large surplus beyond the fixed payments. The circumstances under which the point arose were these. King William the Conqueror built the castle of Windsor about 1067; it was enlarged by Henry L, who erected a chapel thereon, and founded a college of eight canons, to be maintained by an annual pension, payable out of the Eoyal Exchequer. Edward III. rebuilt the chapel and founded the Order of the Garter therein, and MBEAV. 681. ATT.-GEN. V. DEAN AND CANONS OF WINDSOR 521 by his letters patent of the 6th of August 1348 (being the charter of foundation and endowment of the chapel or college), he did, to the aforesaid eight canons, appoint that there should be one cimtos presiding over them and fifteen further canons, twenty-four poor knights, impotent of themselves or inclining to poverty, and for ever to be supported of the goods of the said chapel, and other ministers of the said chapel, to whom the King did grant the rights of patronage and advowsons of the churches of Wyrardesbury, Southtanton and Uttoxeter, in free, pure and perpetual alms. The King further willed that so much should be bestowed to them from his treasury, as, with the emoluments arising from the aforesaid churches, should seem sufficient for their diet and the support of the charges incumbent on them, until lands of £1000 per annum should be provided by him; all which things he promised to fulfil. The letters patent were confirmed by the Pope in 1351, and the college and chapel of St. George, Windsor, was founded, consisting of one custom (a secular canon) and twelve other secular canons, thirteen presbyters or [681] vicars, four clerks, six clerical choristers and twenty-six alms knights. The statutes were signed by Edward III. in 1352 ; and, by the fifth of such statutes, it was provided that the alms knights should receive, each of them, twelve pence by the day pro quotidiano victu and forty shillings by the year for all other necessaries ; one-third of the surplus rents was to be set aside for the use of the chapel, to be applied for their advantage or necessities arising from fire, murrain of animals, or the failure of corn, or otherwise for the defence of their rights, if it should be needful to litigate, or for the increase of their rents, and the remainder was to be equally divided between the wardens and canons residentiary. King Edward III., about the same time, founded, in the said chapel or college, the Most Noble Order of the Garter, of which the sovereign and twenty-five knight companions formed the complete chapter, under whom were instituted a custos and twenty-five canons, twelve of them secular (or majares), and thirteen vicarial (or minares canonici), and a governor and twenty-five other alms or poor knights. In the 19th Edward IV., the dean and canons were incorporated, and by an Act of Parliament of the 22d Edward IV'., obtained (but as the knights represented by surprise and fraudulent misrepresentation) an Act of Parliament, whereby they were incorporated, and it was ordained that the same deans and canons, and their successors for evermore, should be utterly discharged from all manner of exhibition or chafge, of or for any of the alms knights. The alma knights being thus left unprovided for, it appeared that in the reign of Henry VIII., His Majesty [682] had resolved on making a provision for them ; and, in 1511, King Henry VIII. requested the dean and canons to provide for Peter Narbonne, one of the alms knights, a maintenance, and they accordingly granted him a life pension, upon condition that he would relinquish it, when His Majesty should settle lands on the college and chapel for the provision of the said knights, as he had promised to do or given them to understand he would so do. The King, by letter, stating that they were not bound to find any alma knight, thanked them and reiterated his promise; but he never fulfilled it in his life. It also appeared that in 1546 the said dean and canons, by deed, conveyed the manor and rectory of Ivor, in the county of Bucks, and Damarye Court, and other hereditaments of the yearly value of £160, 2s. 4d. to King Henry VIII., in exchange for other hereditaments which His Majesty promised to convey at some future period, but which promise he never fulfilled. King Henry VIII. by his will bearing date the 30th day of December 1546 (amongst other things) expressed himself as follows, namely :-" Also we woll that with as convenient spede as may be doon after our departure out of this world, if it be not doon in our life that the deane and chanons of our free chaple of St. George, within our castle of Windsor, shall have manoures, landes, tenements and spiritual promotions to the yearly value of sice hundred pourules over all charges made sure to them and their successors for ever, upon these conditions hereafter ensuing." He then directed them to find two priests to keep four obits yearly, and at every of them to give to poor people in alms ten pounds, and proceeded thus :-" And also to give for ever, yearly, to thirtene poor men, which shall be called poor knights, to every of them twelf pens every daye, and once in [683] the year, yearly for ever, a long gowne R. vi.-17* 522 ATT.-GEN. V. DEAN AND CANONS OF WINDSOR 24 BEAV. 684. of white cloth with the garter upon the breast, embroidered with a shield and cross of St. George within the garter, and a mantle of red cloth ; and to such one of the said thirtene poor knights as shall be appointed to be hed and governor of them, £3, 6s. 8d. yearly for ever, over and besides the said twelf peiines by the claye." And he charged and required his son Prince Edward, and his executors and counsaillors, his heirs and successors, to see that the said indenture and assurance be made. And the King willed that all his grants and gifts promised as were not perfected, and all exchanges as were not accomplished, should be perfected. King Henry VIII. died on the 23d day of January 1546-7, without having executed any such indenture as mentioned in his will, or perfected on his part the exchange with the dean and canons. His will was inoperative as regarded conferring any rights on the dean and canons. In 1547 King Edward VI. and the Privy Council and executors consulted with the Judges and law officers as to carrying the directions of the will into effect, and in pursuance thereof, on the 2d day of August 1547, Sir Edward North, the Chancellor of the Court of Augmentation, signed certain written instructions for the preparation of a conveyance in pursuance of the will, which now remained among the records of the late Court of Augmentation. It enumerated the parcels of land and tithes of various rectories belonging to the Crown, and specified the annual rental of them, which was set down as amounting to the clear yearly sum of £812, 12s. 9d. From this amount it stated there was first to be deducted £160, 2s. 4d. for the lands of Ivor, &c., taken by...
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