1863.

hitherto been done. It

ATT-GEN.

v.

may well assume that the Defendant takes as descendant of the brothers and sisters referred to in the will. There is nothing illegal GREENHILL. or invalid in the gift; the trust would have been satisfied by the granting one lease to the brothers and sisters with a covenant to renew at two-thirds of the annual value. Such a renewable lease is a common tenure in Ireland, and the rental is more variable than a corn rent under the statute of Elizabeth. In Hope v. The Corporation of Gloucester, the gift was for the benefit of persons to be ascertained from time to time; here the gift is in favour of the brothers and sisters for ever, and the estate is alienable. But if the direction to lease be void, the colleges take subject to the trust in favour of the brothers and sisters, and there, is therefore, a resulting trust in favour of the heir at law of the testator, between whom and the lessees alone the only contest can exist. If one of these constructions be consistent with the law and the other opposed to it, the former is to be preferred.

Lastly, the suit is defective for want of parties, the heir at law and Sydney Sussex College and the other representatives of the brothers and sisters ought to be represented.

Mr. F. V. Hawkins in reply. The clause in question is a mere condition, which being void, the college takes the whole estate discharged of it, for the charitable purposes mentioned in the will.

Dec. 7.

The MASTER of the ROLLS.

In this case, I must make a decree to the effect asked by the Informants. The will is very peculiar, but that part which relates to the subject is set forth in the information. I think there is a gift of the whole of the

property

1863.

ATT.-GEN.

บ.

property to the colleges, but to be employed by them for the charitable purposes stated in the will, and that the direction to lease the property to his "wives' kindred ever, viz. brothers and sisters," is no part of the GREENHILL. charity, but an attempt to give a beneficial interest in perpetuity to persons who cannot take it. The case of Hope v. The Corporation of Gloucester (a) establishes that point very clearly, and this is confirmed by the decision in the Attorney-General v. Catherine Hall (b).

The result will be, they may let to whom they please, at their own discretion. But if this devise were in other respects valid, it would be difficult to say what was meant by "my wives' kindred ever, viz. brothers and sisters there and at Harrow." I suppose it meant those only who were residing at Langley and Harrow ; but I express no opinion on this. I am of opinion that the whole estate was given to the colleges for a charity, and that this gift to the wives' kindred is void and cannot take effect.

A question was raised whether the Defendant properly represented all the wives' kindred, and I think he does, and that it would be a needless employment of the functions of this Court, if I sent an inquiry to Chambers as to who were meant by the words " kindred, viz. brothers and sisters," and who represents them. The Defendant having had the lease granted in that character makes him sufficient to represent them.

The absence of Sydney College is not material as I decide in their favour.

The Defendant should have his costs, for he has behaved quite properly.

(a) 7 De G., M. & G. 647.

(b) Jacob, 381.

1863.

Nov. 9, 10. Judgments against executors and administrators need not be registered in the Common Pleas, under the 23 & 24 Vict. c. 38, s. 3, in order

JENNINGS v. RIGBY.

JAMES RIGBY died intestate in September, 1862.

On the 14th of November, 1862, Mr. Gordon, a creditor of the intestate, obtained a judgment against his administratrix for 1967.

On the same day, Mr. Openshaw obtained a like to retain their judgment for 2057.

preference in the administration of the estate.

On the 29th of November, 1862, Mr. Maxwell obtained a like judgment for 1347.

On the 1st of December, 1862, an order was made, under an administration summons, issued on the 17th of November, at the instance of simple contract creditors, for the administration of the intestate's estate, and the usual accounts and inquiries were directed.

The estate proved deficient for the payment of all the debts, and the Chief Clerk, by his certificate, reserved the question, whether the judgments obtained against the administratrix had priority over the simple contract creditors, none of the judgments having been docketed or entered.

Mr. Selwyn and Mr. De Gex for the Plaintiffs, who were simple contract creditors. The statute of the 23 & 24 Vict. c. 38, s. 2, is express, that no judgment which is not entered or docketed "shall have any preference against heirs, executors or administrators in their administration of their ancestor's, testator's or intestate's

estates."

estates." These judgment debts, none of which have been docketed or registered, have, therefore, no priority over the simple contract debts.

Mr. Bird and Mr. Pearson for the judgment creditors. Prior to the 4 & 5 Will. & Mary, c. 20, executors or administrators who paid simple contract debts before judgment debts, of whose existence they were wholly ignorant, committed a devastavit. That statute recited. the hardship and difficulty in finding judgments, and provided for their being docketed alphabetically, and then enacted, that judgments not docketed should not affect purchasers or have any preference in the administration of estates. The 1 & 2 Vict. c. 110, omitted to provide for this, and the docket having been closed by the statute of the 2 & 3 Vict. c. 11, the Court, in Fuller v. Redman (a), held, that there was no protection for executors and administrators who paid simple contract debts in ignorance of the existence of judgment debts. The 23 & 24 Vict. c. 38, was passed in consequence of that decision, and to remedy the omission. It recites that "executors or administrators had been held to have lost the protection which they enjoyed under 'the statute of Will. & Mary,' and that it was expedient that the same should be restored."

The only object of the last statute was, to restore to executors and administrators the protection they enjoyed under the former statute. The decisions therefore under the former Act are strictly applicable to the last Act, and in Gaunt v. Taylor (b) it was held, that it was not necessary to docket a judgment recovered against executors in order to give it preference in the administration of an estate.

(a) 26 Beav. 600.

(b) 3 Man. & Gr. 886, and 3 Scott (N. S.) 700.

Mr.

1863.

JENNINGS

v.

RIGBY.

Nov. 10.

The MASTER of the ROLLS.

I think that the case of Gaunt v. Taylor is too strong to get over, and on looking carefully into it, I think that the reasons pointed out by Mr. Bird are the real reasons why the Court held that the statute did not apply to judgments against executors and administrators.

I held in Fuller v. Redman (a), that the 2 & 3 Vict. c. 11, having put an end to dockets in every case, the old law was revived, and that an executor or administrator might become liable for a devastavit by paying simple contract debts before judgment debts, of which he could know nothing. This was justly considered to be a great hardship, and Lord St. Leonards introduced the 23 & 24 Vict. c. 38, which afterwards passed, not for the purpose of restoring the old law, but merely to remove the difficulty noticed in Fuller v. Redman, and to restore the old law as regards judgments against the testator or intestate. The Court had already held, that executors and administrators must know of judgments against themselves, and it was therefore unnecessary to provide that they should not be guilty of a devastavit. I am of opinion that Gaunt v. Taylor governs this case, and that in the administration of this estate, which appears to be insolvent, you must pay the costs of all the parties as between solicitor and client, and next pay the specialty debts and then the judgment debts.

Mr.

(a) 26 Beav. 600.