Morice v The Bishop of Durham

JurisdictionEngland & Wales
Judgment Date21 June 1805
Date21 June 1805
CourtHigh Court of Chancery

English Reports Citation: 32 E.R. 1009

HIGH COURT OF CHANCERY

Morice
and
The Bishop of Durham

[57] morice v. The Bishop of durham. May 2oth, June llth, list, 1805. Biddings not opened after confirmation of the Report; unless fraud in the purchaser ; or fraudulent negligence in another person, as the agent, of which it would be against conscience that the purchaser should take advantage ; or, unless some particular principle arises out of the character of the purchaser, as connected with the ownership of the estate, or some trust or confidence, or his conduct in obtaining the Report. Mr. Bell moved to open biddings after the confirmation of the Report. The only reason alleged for not applying sooner was, that the party understood another person had given a notice of motion for the same purpose ; that, when that was discovered to be a mistake, the application was made, immediately after the confirmation of the Report ; and therefore no injury or inconvenience could arise. Mr. Coke, for the purchaser, opposed the motion ; insisting, upon the authority of Scott v. Nesbit (3 Bro. C. G. 475), that a bidding shall not be opened after confirmation of the Report; and observing, that Watson v. Birch (2 Ves. jun. 51 ; see the note, 55) was determined upon very particular circumstances ; and in Goiver v. Gower (cited in Watson v. Birch, 2 Ves. jun. 51) fraud was imputed. The Lord Chancellor expressed strong disapprobation of the decision in Watson v. Birch ; observing, that he never would have made those orders ; and the only case, in which the biddings can be opened after confirmation of the Report, is, where there is some fraud or misconduct in the purchaser, or fraudulent negligence in another person ; as the agent; of which it is against conscience that the purchaser should take advantage. June 21s. The Lord Chancellor [EldonJ. My opinion is, that after a purchaser has confirmed his Report, unless some particular principle arises out of [58] 'us character, as connected with the ownership of the estate, or some trust or confidence, or his own conduct in obtaining his Report, the bidding ought not to be opened. In this particular case I lament it : but there is much less mischief in abiding by the rule, than in permitting myself to depart from it upon what are called special circumstances, not connected with this view of the case. No Order was made.

English Reports Citation: 32 E.R. 656

HIGH COURT OF CHANCERY

Morice
and
The Bishop of Durham

S. C. affirmed on appeal, 10 Ves. 522. See Gibbs v. Rumsey, 1813, 2 V. & B. 298; James v. Allen, 1817, 3 Mer. 18; Ellis v. Selby, 1835-36, 7 Sim. 359; 1 My. & Cr. 299; Baker v. Sutton, 1836, 1 Keen, 232; Nightingale v. Goulbourn, 1848, 2 Ph. 595; Briggs v. Penny, 1849, 3 De G. & S. 543; Lomax v. Ripley, 1854-55, 3 Sm. & G. 79; Dolan v. Macdermott, 1867, L. R. 5 Eq. 62; In re Sir Robert Peel's School, 1868, L. R. 3 Ch. 549; Beaumont v. Oliveira, 1868, L. R. 6 Eq. 538; Yeap Cheah Neo v. Ong Cheng Neo, 1875, L. R. 6 P. C. 389; In re Hewitt's Estate, 1883, 53 L. J. Ch. 134; In re Sutton, 1885, 28 Ch. D. 467; In re Douglas, 1887, 35 Ch. D. 482; The Queen v. Commissioners of Income Tax, 1888, 22 Q. B. D. 300; In re Darling, [1896] 1 Ch. 53; In re Macduff, [1896] 2 Ch. 463; In re Hunter, [1897] 2 Ch. 110, sub nom. Hunter v. Att.-Gen, [1899] App. Cas. 323.

morice v. The bishop of durham. Feb. 1th, Mh, March 26th, 1804. j.-j. **& [S. C. affirmed on appeal, 10 Ves. 522. See Gibbs v. Rumsey, 1813, 2 V. & B. 298 ; t"% U'fi *cik.Z?ames v- Allen, 1817, 3 Mer. 18 ; Ellis v. Selby, 1835-36, 7 Sim. 359 ; 1 My. 'iL ,. "/./) & Cr. 299; Baker v. Sutton, 183G, 1 Keen, 232; Nightingale v. Goulbourn, ' / A848- 2 Ph- 595; Bri99s v- Penny, 1849, 3 De G. & S. 543 ; Lomax v. Bipley, 1854-55' 3 Sm- & G- 79 Dolan v" Macdermott, 1867, L. R. 5 Eq. 62 ; In re Sir Robert Peel's School, 1868, L. R. 3 Ch. 549; Beaumont v. Oliveira, 1868, L. R. 6 Eq. 538 ; Yeap Cheah Neo v. Ong Cheng Neo, 1875, L. R. 6 P. G. 389; In Hewitt's Estate, 1883, 53 L. J. Ch. 134 ; In re Sutton, 1885, 28 Ch. D. 467 ; In re Douglas, 1887, 35 Ch. D. 482 ; The Queen v. Commissioners of Income Tax, 1888, 22 Q. B. D. 300; In re Darling, [1896] 1 Ch. 53; In re Macduff, [1896] 2 Ch. 463 ; In re Hunter, [1897] 2 Ch. 110, sub nom. Hunter v. Att.-Gen, [1899] App. Cas. 323.] Bequest, in trust for such objects of benevolence and liberality as the trustee in his own discretion shall most approve, cannot be supported as a charitable Legacy ; and is therefore a Trust for the next of kin. Ann Oracherade by her Will, dated the 16th of April 1801, and duly executed to pass real estate, after giving several legacies to her next of kin and others, some of which she directed to be paid out of the produce of her real estate, directed to be sold, bequeathed all her personal estate to the Bishop of Durham, his executors, &c., upon trust to pay her debts and legacies, &c.; and to dispose of the ultimate residue to such objects of benevolence and liberality as the Bishop of Durham in his own discretion shall most approve of ; and she appointed the Bishop her sole executor. [400] The bill was filed by the next of kin, to have the Will established, except aa to the residuary bequest; and that such bequest may be declared void. The 9 vsa Jtm. i. morice 11 trofcfiAM (the bishop of) 657 Attorney General was made a Defendant. The Bishop by his answer expressly disclaimed any beneficial interest in himself personally. Mr. Romilly and Mr. Bell, for the Plaintiffs. This is admitted to be a trust; and if it is expressed in terms so vague and indefinite, that no Court can say, what it is, or carry it into execution, it must fail entirely ; and then being a trust, and the object not appearing, it must be a trust for the next of kin. The only question then is, whether under these words the Bishop can be considered a trustee for charity. Can these words " Benevolence and Liberality " be taken to mean charity ? That might possibly coine within the former word ; but the latter cannot be used in that sense ; not even importing any thing of a public nature ; from which the public is to derive any benefit ; and if it did, it would not be within the description of a trust, such as a Court of Equity can carry into execution. The senses of this word are various. Formerly exhibitions or combats by wild beasts and gladiators were considered objects of liberality. At present a public exhibition of pictures may be so considered ; and such an application may be properly made in opposition to a gift to an hospital ; which would be properly termed charitable. So, assisting persons deprived, not of the necessities but of the comforts, of life, may come within the description of liberality. There is no instance of executing a trust in any degree resembling this ; and very few, having any resemblance to it, have occurred. [401] In the case (Brown v. Yeall. 7 Ves. 50, in the note to Moggridge v. Ihack-well) upon Mr. Bradley's Will there was much to be said in favour of that disposition. The object was much more clearly described than by these vague words. That object was of a nature always considered charitable ; the advancement of religion, and the purpose of instruction. Yet Lord Thurlow considered that so uncertain and indefinite, that it was impossible for the Court to carry it into execution. In The Attorney General v. Whorwood (1 Ves. [sen.] 534) the description was of a similar nature ; to act hospitably, &c. The whole was considered void ; and Lord Redesdale says in the note (4 Ves. 434) to Corbyn v. French (4 Ves. 418) that the next of kin obtained a transfer of all the funds. If part is for a charitable purpose, as may be contended in this case under the word " benevolence," yet part being tor an object, that cannot possibly answer that description, as in this instance under the word " liberality," the whole must fail. In Townley v. Bedwell (6 Ves. 194), though certainly the decision went partly upon the circumstance, that the subject was land, and therefore within the Statute (atat. 9 Geo. II. c. 36), the Lord Chancellor's opinion seems to be, that the purpose was such as this Court would not carry into execution. Mr. Richards, Mr. Stanley, and Mr. Martin, for the Defendant, the Bishop of Durham.-Mr. Mitford, for the Attorney General. The single question is, for whom the biahop is a trustee. Charity, as the Lord Chancellor has observed, is a legatee of a very peculiar nature. The instant that it appears a legacy is intended for charity, the Court [402] attaches its rule upon it ; and carries that purpose into effect; though the particular design cannot be ascertained; as if the instrument does not exist, or cannot be found. With reference to the argument for the Plaintiffs as to public exhibitions, Lord Chief Justice Wilmot, who enters very minutely into the origin of the law upon this subject, says, if the legacy is for a public exhibition, which is not permitted, it shall go to another, such as the law sanctions; quoting a passage from the Digest ; and concluding that, where it cannot be carried into execution in the particular mode, it is for the honor of the testator ; and though it is said to be a pillar of vanity, yet such an object has been permitted ; and must be carried into execution. (The Attorney General v. Lady Downing, Wilm. 1. See pages 32, 33.) Nothing could be more vague than the object in Frier v. Peacock (Finch, 245. More fully stated under the title of The Attorney General v. Matthews, 2 Lev. 167) ; the poor in general. How could that be executed 1 Were all the poor in the kingdom to partake of the bounty t It was impossible to execute it precisely according to the intention ; yet the Court considered it devoted to charity ; and applied it to the maintenance of 40 poor boys in Christ's Hospital. According to all the cases, with one or two exceptions, the Court or the Crown must effect the purpose by some particular mode. The object in Moggridge v. Thackwell...

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