Thomas Burbidge, a Lunatic
| Jurisdiction | England & Wales |
| Judgment Date | 26 July 1850 |
| Date | 26 July 1850 |
| Court | High Court of Chancery |
English Reports Citation: 42 E.R. 161
HIGH COURT OF CHANCERY
[402] monckton . the attorney-general.(i) March 29, April 12, 1848; June 1850. When a petition of right is referred to the Lord Chancellor with the indorsement " let right be done," if such right, supposing it to exist, be subject to certain rules of proceeding for its ascertainment and enforcement, those rules must still be followed, and the rights of the parties will be bound by all equities to which they are properly subject. Samuel Troutbeck, the testator in this case, being resident in the East Indies, and being entitled to some real estate and to a large personal estate there, made his will, bearing date the 21st July 1780, and thereby disposed of all his property in various charitable devises and bequests, and appointed the Honourable Edward Moncktoii and other parties trustees for carrying these devises and bequests into effect. The testator having died in 1785, the trustees, on the 23d July 1792, instituted a suit against His then Majesty's Attorney-General, praying that the trusts of the will might be carried into execution, so far as the same were valid; and, in case the charitable devises and bequests were not valid, then that the testator's estate might be disposed of for the benefit of his next of kin, if any such could be found, and, if not, then in such manner as His then Majesty should direct or appoint, or otherwise as, in the opinion of the Court, the same ought to be disposed of. [403] In Michaelmas term 1794 a decree was made referring it to the Master to take the usual accounts, with directions to publish advertisements for the heir at law and next of kin of the testator. On the 29th July 1813 the Master made his report, which was absolutely confirmed, and a decree on further directions was made, bearing date the 4th July 1814. By this decree it was declared that the charitable devises and bequests contained in the testator's will were void; and, there not appearing to be any person or persons who were the testator's heir at law or next of kin, it was declared that the real and personal estate of the testator became vested in His then Majesty; and all further directions were reserved until His Majesty should have signified his pleasure in relation thereto. In the year 1816 the proceeds of the testator's property, after deducting the costs of the suit, were paid into the Exchequer to the account of. the Civil List. In the month of June 1825 John Robson and Catherine his wife, and John Ainsley and Isabella his wife, claiming to be next of kin or some of the next of kin of the testator, together with George Cawthorne, claiming to be the heir at law or one of 2 MAC. ft O. *. MONCKTON V. THE ATTORNEY-GENERAL 157 the co-heirs at law of the testator, presented a petition in the suit praying a reference to the Master to enquire who was the testator's next of kin and heir at law at the time of his death, and who were then his next of kin or heir at law; and, on the 23d June 1825, an order was made, with the consent of the Attorney-General on behalf of the Crown, accordingly. On the 22d June 1827 the Master made his report to the effect that the claimants had not made out their claim, and that he was unable to answer the enquiries directed by the order. To this report the claimants, except George Cawthorne, who had died, excepted ; and, on the 16th December [404] 1828, the exceptions were overruled by the Master of the Rolls (Sir John Leach), and the Master's report was confirmed. From this order the claimants appealed to the Lord Chancellor (Lord Brougham), who, on the 22cl January 1831, directed an issue for the purpose of trying the right of the claimants. This issue was tried accordingly, and the jury found a verdict for the Defendant, the Attorney-General. On the 13th June 1831 a motion was made before the Lord Chancellor for a new trial, but was refused. Several applications were subsequently made by the claimants in order to obtain their costs, charges, and expenses; but on these applications no order was made. On the 15th August 1833 the claimants, on the allegation that they had obtained fresh evidence, moved, before the Lord Chancellor (Lord Brougham), for a new trial of the issue formerly directed as above stated, and on this occasion his Lordship refused to make any order on the motion, but directed that the costs...
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Upfull's Trust, and The Act 10 & 11 Vict. c. 96
...the expenses of his maintenance for twelve months preceding his decease. (He referred to Brodie v. Barry (2 V. & B. 36), In re Burbiilge (3 Mac. & G. 1), Shelford on [285] Lunatics, p. 220, ed. 2, Tyndale v. Warre (Jacob, 212), Ex parte Swift (1 Russ. & M. 575).) Mr. Nichols, for the truste......