Proceedings in Chancery.—In Trinity 1692. the Attorney General prefers a Bill against the Appellant as Heir at Law, to settle and establish the said Charities, and to enforce the Trustees to act or to transfer their trust Estate. To which they answer, and the Heir by his Answer claimed as Heir at Law, the Surplus of the Charity Estate over and above what would satisfy the yearly Payments expressed in the Will, and the Charges of executing the said Trust; upon a Reference to a Master, to ascertain the Court of the yearly Value of the Manor, he reports it worth 240l. per Annum, and worth the same at the Time of making the Will. And on hearing the Cause, the Court declared, That all the Profits of the Premisses ought, by the Purport and Intention of the Will, to be applied to the Charities therein mentioned; and that the Appellant Arnold the Heir at Law is totally excluded from the Surplus, with Direction how [23] the Surplus should go in Augmentation of some of the Charities; nevertheless, in case the Appellant should Seal and Execute to the Trustees a Release and Conveyance of the Premisses according to the Decree, then he to have his Costs out of the Sale of Timber, and that the Trustees be indemnified.
Argument for the Appellant. Heir to be favoured.—And it was argued on Behalf of the Appellant, that this Decree was not equitable. Some Questions were made about the Distribution of the Surplus amongst only some of the Charities, and about the Value; but a Surplus was agreed to be in the Case; and it was chiefly insisted upon, that the Surplus ought to go and be to and for the Use of the Heir at Law; for that the Estate is not increased by any subsequent or accidental Improvement, and so not like the Case of Thetford School; but here at the Time of making the said Will was, and now is, of a good Value beyond the Sums given, and was so known to be by the Testator; and the particular Charities given by the Testator are particularly and expressly Named and Limited, and do amount only to so much, as is less than the Value of the Land; and this Surplus is not disposed of, and consequently ought to be the Heir's: For as at the Common Law in a Will, what is not given away must descend, whether you speak of Land or the Interest in it; so in Equity, whatsoever Trust, or Part of a Trust, is not declared and expressed, the same shall be for the Benefit of the Representative of the Testator, either Heir or Executor, as the Case may happen: Then these Bequests or Devises being particular and express, they do and will control and expound, nay restrain and qualify the Meaning of general precedent Words: That Expression of his being determined to settle his Manor to charitable Uses, will be qualified by the Particulars afterwards, as is Nokes's Case in 4 Rep. and many others in the Books. Besides, 'tis not accompanied with any Term of Universality, that excludes the construction contended for; and if it had been so largely expressed, those general Words of his designing to settle the Whole, may be intended only as a Security, that the particular Charities may be certainly answered: And by such Construction all the Words of the Will may be satisfied; and then the Trustees may convey the Premisses to the Heir at Law, and take Security for the same, saving and reserving all the said Charities devised, with all reasonable Charges and Deductions, without Prejudice to the Will of the Testator, or to the said Estate, which must nevertheless be liable to answer and make good the same; so that there can be no Damage done to any of the Parties or Interests concerned, by this Construction; nay, it is the adding a further Security for their Payment. Now it is plain, he designed the Sums given to the particular Uses, and no more, for that they are all so particular and express; and it is pursuant to the Rules of Law and Equity, in all doubtful Cases, to adjudge in favour of the Heir at Law, and not to extend the general Words of a Will to enlarge a Charity beyond the Intent expressed, especially against a near Relation and Heir, as this is, viz. his Brother's Son. [24] Besides the Testator was bred a Civilian, and as such knew how fully to express himself, if he had intended the Overplus to go in Increase of the Charity: Or if he had intended them more than is mentioned, he would have declared himself in such Manner as should exclude all Doubt.
Argument for the Respondent. Decree affirmed.—On the other side it was argued, That the Testator's Intent plainly appeared by his Will to dispose all his Estate wholly to charitable Uses, and that the Words of the Will were sufficient to carry the whole Estate to that Purpose; and that it did not appear by his Will,
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