A testatrix bequeathed the sum of 100l., to be put out on good security by her executors thereinafter to be nominated, and the interest to be annually paid by her executors to A. B., of W., and his successors, so long as he the said A. B. and his successors should teach in the said town of W. the gospel of Christ, under the name of orthodoxy. The evidence shewed that A. B., in the lifetime of the testatrix, preached to a congregation in W., of calvinists, or, as they called themselves, orthodox independents:—Held, that the minister for the time being of the congregation at which A. B. preached in the lifetime of the testatrix, was entitled, so long as he preached the doctrines preached by A. B., in the lifetime of the testatrix to the interest of the legacy.
SARAH Teuxbury, spinster, by her will, dated the 15th of February, 1803, after directing that all her just debts and funeral expenses should be paid and discharged, bequeathed to John Strickland a legacy or sum of 100/., and she gave and bequeathed the sum of 100/., to be put out on good security by her executors in trust thereinafter to be nominated, and the interest of the said sum of 100/. to be annually paid by her executors to the Rev. J. Banister, of Wareham, and to his successors, so long as he the said J. Banister and his successors should teach in the said town of Wareham the gospel of Christ, under the name of orthodoxy; and, after bequeathing the sum of 100/. to the Missionary Society for the spread of the Gospel among the Heathens abroad, and giving and bequeathing certain other pecuniary legacies, she gave and bequeathed as follows: "All the rest of my personal estate whatever, such as my house at East Lulworth, my household goods, my monies, bills, and securities for monies, whatsoever and wheresoever, except what I have before given, I give and bequeath to Thomas Molland, son of the Rev. Thomas Molland, of Thaxled, in the county of Essex; and I do hereby nominate and appoint the said Thomas Molland, jun., my executor and administrator; but, in case the said Thomas Molland, my chosen executor, should die without issue, then my will is, that my household goods shall be given, that is to say, I give it, in such case, to the aforesaid John Strickland, excepting one large chest, and one pier glass, and one brass fender, which I give to the said Mary Furber; and, in case my said executor Thomas Molland die without issue, then, in such case, I give my money, that is to say, the interest of all my monies found in the Bank of England, to the Rev. John Banister, of Wareham, and to the Rev. B. Cracknell, of Weymouth and their successors, the said interest to be given by them and their successors for the promulgation of the gospel, and to be annually paid to them by my executors and assignees in trust, and by their successors to be nominated and appointed by my appointed executors in trust, J. Strickland aforesaid, bailiff to Nathaniel Bond, of East Holme, in the county of Dorset, and the said James Furber, sen., of Staple. My will is, that my said executor, Thomas Molland, shall have power to sell out, and again buy in, my monies into the Bank of England, but not waste or diminish the same that first come to his possession. My house at East Lulworth shall be let at a moderate rent, and be made use of as a preaching house so long as my interest shall last in it; and, in case Thomas Molland die without issue, then shall my said house devolve to the aforesaid J. Strickland."
The information and bill were filed by Foster, who succeeded Banister as minister of the congregation at Wareham, and by a member of the congregation, against Molland, as the executor of the testatrix; and it prayed that the legacy of 100/. might be invested, and the interest paid to Foster and his successors.
Molland, by his answer, admitted assets of the testatrix, but alleged that Strickland and Furber, the chosen executors named in the testatrix's will, had received the legacy, and that those individuals, or their personal representatives, were the persons against whom the relief sought by the information ought to have been prayed.
The effect of the evidence was, that the doctrines preached by the plaintiff Foster were the same as those preached by Banister; and, that the congregation was a congregation of dissenting Christians, who held the doctrine of the Trinity.
Mr. Jervis and Mr. Hayter, for the plaintiffs.
Mr. Simpkinson, for the defendant.
It was argued for the defendant, that the gift was too vague to be carried into effect; and, if not, yet that the legacy had been satisfied by the payment to Strickland and Furber; that there was no sufficient evidence of what was meant by the term orthodoxy, which, according to law could only meant he established religion; and that the evidence as to the tenets preached by Banister and his successors, was contradictory.
Lord Lyndhurst, L. C. B.—It appears to me that the intention of the testatrix is manifest, and that there is sufficient evidence to entitle the person who for the time being shall be minister of the congregation mentioned in her will, to the interest of the 100/. The testatrix died in the year 1803, and it was manifestly her intention that the minister for the time being of that congregation, so long as he continued to teach the same doctrines which were taught by the existing minister, Mr. Banister, should be entitled to this income. The evidence is of this description. There is a person who says he, after the year 1803, and during the whole of the life of Banister, was a member of that congregation; and that, during the whole of Banister's life time, while this individual was a member of the congregation, Banister continued to preach the same doctrines; and that the present minister, Foster, continues to preach the same doctrines that Banister preached during that period. Still, however, it is necessary to identify the doctrines preached by Banister during the period to which this witness refers, with the doctrines that were preached by the same individual in the lifetime of the testatrix. Now, that defect is supplied by the second witness, who swears that he was a member of the congregation during the lifetime of the testatrix; that is, previously to the year 1803, which was during the lifetime of the testatrix; that Banister was minister at that time; and, that Banister always preached the same doctrines; that Foster now preaches the same doctrines as Banister preached; and that the congregation is a congregation of calvanistic independents, or orthodox independents, as he calls them; and every sect considers its own doctrines as orthodox doctrines. It appears to me that there is sufficient to shew clearly what the intention of the testatrix was; and there is sufficient evidence to shew that Foster is preaching the same doctrines that Banister preached. There being no contradictory evidence offered in opposition, I think there is sufficient to give effect to the will of the testatrix.
The next question is with respect to the construction of the will. In the will she appointed an executor, Molland, whom she sometimes calls executor and sometimes calls her chosen executor; but there is another class of persons named in the will whom she calls her executors in trust, and she names as those executors in trust a person of the name of Strickland and a person of the name of Furber, and she calls them her appointed executors in trust; and she speaks of the successors of those individuals as persons to be chosen and to be appointed by her appointed executors. So, that there are two classes of persons, an executor whom she names, and whom she calls her chosen executor, and appointed executors in trust, and the successors of such appointed executors in trust to be appointed by her appointed executors in trust. Then, in this bequest, she directs the 100/. to be laid out by her executors in trust hereinafter mentioned; that is, as I understand, Strickland and Furber; and she directs the interest of the 100/. to be paid by her executors, in the plural, evidently the same executors. Afterwards, for the purpose of throwing light on this, when you come to the bequest to Molland, in the event of Holland's dying without issue, she takes on herself to bequeath over the property—to whom? To Bannister, and to another person who was minister of a congregation at Wareham; not for their own benefit, but in order that they might apply the interest of that money for the promulgation of the gospel. But she directs the interest of that money to be paid over to them in the first instance—by whom? By her executors in trust, and their successors; which executors in trust she names immediately after that bequest: so that it is quite clear that her intention, as far as you can say any thing is clear on a will so inartificially constructed, was that her executors should pay over the money in the first instance to the executors in trust; that the money should be laid out by them according to their judgment and discretion; and that they should pay over the dividends from time to time to Banister and his successors. But then it is stated that they have allowed Strickland and Furber to retain this 100/., or that which is equivalent to it: but there is no proof of that fact.
Refer it to the Master to inquire whether the defendant has paid or allowed out of the testator's estate to Strickland and Furber, or either of them, the 100/. mentioned in the will of the testatrix—with liberty to Strickland and Furber’s representatives, or any or either of them, to attend before the Master on the inquiry.
Extracted from: Report of cases argued and determined in the Court of Exchequer in Equity from Trinity Term 11 GEO. IV to Michaelmas Term 2 WILL. IV, both inclusive