The Mayor, Aldermen, and Burgesses of Beverley, - Appellants; Attorney General, - Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 24 July 1857 |
| Date | 24 July 1857 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 1315
House of Lords
Mews' Dig. iii. 282. S.C. 27 L.J.Ch. 66; 3 Jur. N.S. 871. Considered in A.-G. v. Wax-Chandlers' Co., 1870, L.R. 5 Ch. 508; and see Merchant Taylors' Co. v. A.-G., 1871, L.R. 6 Ch. 516.
Charity "Overplus" - Increase.
[310] The MAYOE, ALDEKMEN, and BURGESSES of BEVERLEY,-Appellants; ' The ATTORNEY-GENERAL,-Eespondent [July 10, 20, 24, 1857]. [Mews' Dig. iii. 282. S.C. 27 L.J.Ch. 66; 3 Jur. N.S. 871. Considered in A.-G. v. Wax-Chandlers' Co., 1870, L.R. 5 Ch. 508; and see Merchant Taylors' Co. v. A.-G., 1871, L.R. 6 Ch. 516.] Charity " Overplus "-Increase. Where a testator gives for charitable purposes, to A. the whole of an estate, or all the rents of an estate, apportioning those rents, so as to exhaust them, among charitable objects, any increase in the rents must be applied to the same charitable purposes. Where a testator gives to A. an estate or rents, in trust to make certain payments to charities, and speaks of an overplus, which he does not specifically bequeath, if there should be an increase in the profits of the estate, A. will be entitled, after making the specified payments, to take the increase. A testator in 1652 gave an estate, which he calculated to produce £47 a year, to the Corporation of B., upon trust to pay certain sums, which left a residue of £7 a year. He made no specific bequest of this; sum, but, referring to charges which then were required for the maintenance of the army, he directed that what the mayor could not spare out of the overplus should be deducted out of the payments to some of the charitable objects of his will. These payments to the army ceased, and an increase took place in the income from the property bequeathed : Held, reversing the decree of the Court below, that this increase belonged to the Corporation of B. This was an appeal against a decree of the Master of the Rolls which had been affirmed by the Lords Justices. The question arose upon the will of the Rev. Dr. Metcalfe, who was one of the Senior Fellows of Trinity College, Cambridge. In the year 1652 he made his will, by which, after a number of other gifts, he recited that lie had purchased a farm, called or known by the name of Silliards, situate in Gilden Murden, in the county of Cambridge, with certain lands, then yielding the rent of £47 a year; and he proceeded thus: " I do give and bequeath the said farm 1315 VI H.L.C., 311 BEVERLEY (MAYOR, ETC., OF) V. A.-G. [1857] called Silliards, with all the said lands and appurtenances thereto belonging, to the Mayor, Aldermen, and Burgesses of the town of Beverley, York-[311]-shire, wherein I was born, and to their successors for ever; nevertheless in and with this trust and confidence in them reposed, that they, their successors and assigns, shall employ the yearly rent of the said farm, with the lands and appurtenances, in manner and form following, and not otherwise, namely, that they shall well and truly pay, or cause to be paid, yearly and every year for ever, unto the preacher (as he is commonly called), or lecturer of the said town of Beverley, and his successors, the sum of £10 of good and lawful money of England, and to the schoolmaster of the said town and to his successors, in like manner, the sum of £10 of good and lawful money of England, and to my sister Prudence Metoalfe, now dwelling in the said town of Beverley, during her natural life, the sum of £20 of good and lawful money of England, yearly and every year. And after the decease of my said sister, Prudence Metcalfe, that they shall well and truly pay, or cause to be paid, the said £20, yearly and every year for ever, unto three poor scholars of the school of Beverley (commonly called the free school), naturally born in the said town, for their better maintenance at the University of Cambridge, viz., to every one of the three poor scholars the sum of £6 13s. 4d., the said three poor scholars to be appointed and approved from time to time by the said Mayor, Aldermen, and Burgesses, and their successors, and the lecturer and the schoolmaster of the said town, and their successors. And the said maintenance to be continued to every of the said poor scholars until the time that they have taken the degree of Master of Arts, if they so long continue students in the university. And upon condition that they take the said degree at the due time, within eight years after their admission into the university. But if there be not always three poor scholars at the University of Cambridge, or ready to go to the university, who shall stand in need of [312] that maintenance, and be poor men's sons, who are not able otherwise to maintain their children there (for my will is that no son of any of the aldermen, or. of any other who are of sufficient ability to maintain their children at the university shall be capable of that maintenance), then I ordain that in the interim, till there shall be such poor scholar or scholars, poor men's sons, what can be spared of the said £20 (no poor scholar having above £6 13s. 4d. yearly) shall be distributed amongst the poorest people of the said town, together with the money which in this my will I shall hereafter mention. Moreover, my will and desire is that so long as the taxes or rates to the commonwealth for the maintenance of soldiers shall continue, what the said Mayor, Aldermen, and Burgesses cannot spare out of the overplus of rent, viz., £7 (for the farm is now, as was formerly signified, let for £47 per annum, and so hath been let heretofore), shall be deducted equally out of the £20 per annum which they are to pay to their lecturer and schoolmaster, that my sister may have £20 yearly and every year wholly and entirely paid unto her." The will, after some other bequests, proceeded thus: " I give to the Mayor, Aldermen, and Burgesses of the town of Beverley, and to their successors, the sum of £450 for the purchase of so much free land as will yield yearly and every year the rent of £22 10s.," on trust " that they and their successors shall distribute £20 of the said rent, yearly and every year for ever, among the poorest of the people of their town, upon 20 December or the day after, or as shall be thought most convenient by the mayor and lecturer of the town for the time being. And my will is that so long as the taxes and rates due to1 the commonwealth for maintenance of soldiers shall continue, that unless they can spare anything out of the 50s. overplus, the said rates be defrayed out of the £20 yearly." [313] He afterwards executed a codicil, in which, mentioning the gift of the £450 and the purpose for which it was given, he said that he had himself purchased the land, and as it was copyhold, had " purchased a court" in order to dispose of it, " to enable me that my heirs might have nothing to do therein. And that business being despatched, my will is that that gift and legacy be disposed of according to the true intent and meaning specified " in the will. The annual income of the property at the time of instituting the suit amounted to about £180. The Mayor and Aldermen received the rents, and paid the £40 in the manner directed by the will, and carried over the surplus to the borough fund. 1316 BEVERLEY (MAYOR, ETC., of) V. A.-G. [1857] VI H.L.C., 314 In March 1851 an information was filed, at the instance of the Attorney-General, on the report of the Charity Commissioners, claiming for the benefit of the charities mentioned in the will the surplus of the rents beyond the £40 a year. The question to be decided was, whether the gift was limited to £40 a year, or whether the whole rents, or at least 40-47ths of those rents, were or were not appropriated to those charitable objects. The Master of the Rolls considered that they were so appropriated, and made a decree accordingly (15 Beav. 540). That decree wasi taken by way of appeal to the Lords Justices, who adopted in effect the same view as that of the Master of the Rolls (6 De Gex Macn. and Gord. 256), Lord Justice Knight Bruce, however, saying (id. 263), " I have, after much attention to the matter, found myself unable to free my mind from doubt whether his Honor has taken the view that ought to be taken of the testator's meaning. But I doubt only. Seldom indeed, or never, have I met with a case to my apprehension of more difficulty." [314] From that decree the Mayor, Aldermen, and Burgesses appealed to this House. Mr. Lloyd and Mr. E. K. Karslake, for the Appellants.-The chief object of the testator was to benefit the town of Beverley. The application of the overplus to the borough fund effectuates that object. The gift of the estates is absolute, subject only to the payment of the sums specifically appropriated. For a time he knew that the first charges would absorb the larger portion of what he bequeathed, but after that he intended the corporation to take the surplus, and to have all the benefit of any increase in the rents and profits of the property. This case falls within the principle stated in the Thetford School case (8 Co. Rep. 1306 (Ed. 1826)), that as the corporation here would have to bear any loss, it is entitled to the benefit of any increase. The Attorney-General v. Bristol (2 J. and W. 294; the deeds in that case are fully set out in 3 Mad. 319), and Jack v. Burnett (12 Clark and F. 812), proceed on that principle. The payments to the soldiers could not be stated in the will; they were levied monthly, and Scobell's Acts show that they varied considerably. The testator must have known that and directed these payments to come out of the residue; that residue was given as " overplus, namely, £7," to the corporation. He not only contemplated a time when that overplus would increase, but he provided for it in such a manner as to show that the Mayor, Aldermen, and Burgesses were to have the benefit of it, for he expressly directed that the...
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