Incorporated Church Building Society v Coles
| Jurisdiction | England & Wales |
| Judgment Date | 05 December 1854 |
| Date | 05 December 1854 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 405
HIGH COURT OF CHANCERY
Affirmed, 5 De G. M. & G. 324; 43 E. R. 895.
Construction of Stat. 43 Geo. 3, c. 108. Mortmain. Stat. 9 Geo. 2, c. 36. Stat. 9 Geo. 4, c. 42.
[145] incorporated church building society v. coles. Nov. 8, Dec. 5, 1854. [Affirmed, 5 De G. M. & G. 324; 43 E. E. 895.] Construction of Stat. 43 Geo. 3, c. 108. Mortmain. Stat. Q.Geo. 2, c. 36. Stat. 9 Geo. 4, c. 42. A devise of houses or land to be sold, and the proceeds applied in furtherance of the several objects of the stat. 43 Geo. 3, c. 108, cannot be supported under that Act, and is void under the stat. 9 Geo. 2, c. 36. The Legislature intended that each gift, to be protected by the stat. 43 Geo. 3, c. 108, should be for one church, chapel or other building mentioned in the Act, and not a vague and general gift, to be applied to the enlargement, building or repairing of churches or chapels generally. The power by the stat. 43 Geo. 3, e. 108, given to the testator to pass "all such his estate, interest or property " in lands, as in the Act mentioned, must be exercised without reserve, as is provided in similar cases by the stat. 9 Geo. 2, c. 36. Testator, by a will executed three calendar months before his death, devised two houses in Brighton to trustees, upon trust to sell and invest the purchase-money, and to pay the dividends to one for life; and, at her death, to make over and transfer the principal to the " treasurer for the time being of the Incorporated Society for Promoting the Enlargement, Building and Repairing of Churches and Chapels," to be applied to the uses and purposes of that society. Held, that such a gift was not within the scope of the stat. 43 Geo. 3, c. 108, and could not, under that Act, be sustained, either in its entirety, or as a gift of the proceeds of the sale to-the extent of 500, but was void under the stat 9 Geo. 2, c. 36. The testator, by his will, made in February 1838, devised to trustees, of whom his wife Lucy (who afterwards married the Defendant, Coles) was the survivor, and their heirs, two freehold houses in Silwood Place, Brighton, upon trust, to sell and invest the purchase-money in Government securities, and to pay the dividends half-yearly to his wife during her life, and at her death to make over and transfer the principal sum so invested to the " treasurer for the time being of the Incorporated Society for Promoting the Enlargement, Building and Repairing of Churches and Chapels," to be applied to the uses and purposes of that society, for the payment of which said legacy the treasurer's receipt for the same should be a sufficient discharge. The testator lived more than three calendar months after he had executed his will, and died leaving two only sisters, Harriett, the wife of the Defendant, Caton, and Elizabeth, his co-heiresses at law. Elizabeth died, leaving the Defendant, Wilson, her heir at law. The Plaintiffs filed their bill against Coles and Lucy, his wife, Caton and Harriett, his wife, and Wilson, insisting [146] that the trusts for the benefit of the Plaintiffs were not void by virtue of the Act 9 Geo. 2, c. 36, but were valid; and, in particular,, that, by virtue of the Act 43 Geo. 3, c. 108, the testator was authorised to devise the houses and premises in the manner mentioned, and the Plaintiffs to receive the benefit of the same; and that if, in consequence of the form of the said devise and of the trusts thereof, the gift for the benefit of the Plaintiffs was to be considered as a gift of goods and chattels, and not of lands and tenements, yet the Plaintiffs were entitled to the benefit thereof to the value of 500 at the least; and praying that the rights of all parties under the devise might be declared, and the trusts carried into effect; that the houses might be sold, and the purchase-money invested and secured for the benefit of the parties interested. The bill prayed relief against the Defendant, Coles, and Lucy, his wife, in con- 406 INCORPORATED CHURCH BUILDING SOCIETY V. COLES 1K.&J.U7. sequence of the property remaining unsold and otherwise; but, at the hearing of the cause, and previously to the commencement of the argument, the Plaintiffs consented to waive such relief, and it was arranged that, during the life of the Defendant Lucy, the Plaintiffs should not insist on a sale of the premises. Mr. Rolt, Q.C., and Mr. Kenyon, for the Plaintiffs. The devise to the Plaintiffs is protected by the statute 43 Geo. 3, c. 108; and the Plaintiffs are entitled to the full extent of the property. The Act 43 G-eo. 3, c. 108, enables testators to devise, and bodies corporate, as well as...
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