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1803.

MAHON v. SAVAGE.

Feb. 16.

TESTATOR bequeathed to his executor the defendant Legacy to exe

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cutor to be dis

tributed amongst the

poor relations of testator: A relation who was

poor at the tim

time of testator's death, but became rich

one thousand pounds, to be distributed amongst his poor "relations, or such other objects of charity as should be " mentioned in his private instructions to his executors.' No such private instructions were left; and the master having been, in 1797, directed to inquire and report who were the poor relations of the testator, the cause was now set down to be heard upon this report, which specified poor re- bution, not enlations to the number of fifty and upwards, many of whom titled. Poor relation dying were beyond the degree prescribed by the statute of distri- before distribubutions.

Mr. Plunket on behalf of the personal representative of Mathew Lynam, contended that the report should be sent back to the master, to insert the name of the said Lynam as a poor relation of the testator, and also to strike out the names of such persons as were beyond the degree of rela

before distri

tion, his claim not transmissible to his personal representative. Where a person has a power of distribution among poor relations, he may distribute

amongst

all

mote: But

tionship required by the statute of distributions. On the poor relations, first point, it appeared that Lynam had been a relation of the however retestator within the degree, and was a poor man at the time of the death of the testator, but had become affluent in his circumstances previous to 1797.

The Lord CHANCELLOR was of opinion, this was meant as a charitable bequest, and that the objects of that charity should be the testator's own relations: That it was nothing more than ascertaining a number of objects of charity who could not claim except they were such, and that this was not transmissible to representatives.(a)

(a) Vid. Attorney General v. Buckland, cited Ambl.71; in which case it is said to have been decided by Lord HARDWICKE, that

where the court is called

on to distribute, in failure of the person so empowered, it will confine itself to rela

tions within distributions. the statute of

1803.

MAHON

V.

SAVAGE.

On the other part of the case Mr. Plunket cited Widmore v. Woodroffe, Ambl. 636; Edge v. Salisbury, Ambl. 71; Thomas v. Hole, Talb. Cas. 151; Hording v. Glyn, 1 Atk. 469, to prove that relations should be confined to those within the statute of distributions.

Lord CHANCellor.

This point was a good deal discussed in Bennet v. Honywood.(b) where the contrary was held. Thomas v. Hole, was a case of a bequest to the relations of Elizabeth Hole : such a bequest must either be void for the uncertainty, or the court must call in the aid of the statute to restrain it. The distinction taken in Harding v. Glyn is this; where a person has a power given to him of distributing amongst relations, he may exercise his discretion by giving to any of the kindred, though not within the statute. But if there has been no distribution by the person having the power, but it is to be left to the decision of the court what relations shall take, the persons entitled must be of kin within the statute, for the court must have some criterion to go by, and the statute is a good rule for that purpose, and the only guide the court can have ; and I am sure there was a case to that effect before Lord

where a bequest is to relations, it is to be confined to the next of kin; but where it is to poor relations, the construction has been more large and extended to those who were of kin and objects of charity. In Bennet v. Honywood, Ambl. 708; a share was given to a representative; but that was a bequest to all relations not worth above 2,000l. who should claim within two years after the testator's death, and the persons to whose representatives a share was given, had claimed within the two years, and appeared entitled within the terms of the bequest: the order too for payment to one of these persons was actually made.

(b) Ambl. 708.

MANSFIELD.(a.) Here the testator's design was to give to them as objects of charity and not merely as relations, and I take it the executors have a discretionary power of distribution, and need not include all the testator's poor relations.

The directions as to the two points made on the report were," that the master should inquire and report whether "the defendants the executors have paid any and what sum "to Matthew Lynam deceased, in the master's report men

tioned, as one of the poor relations of the testator, and in "part of the said legacy of 1,000l. And if it shall appear that any such payment was made, let the master inquire whe"ther the said Matthew Lynam was at the time of such payment a poor relation of the testator within the meaning of "his will, and if the master shall find he was, let the execu"tors be allowed such sums of money as the master shall find << to have been properly so paid by them. And let the execu

(a) Sembl. Spring ex dem. Titcher v. Biles, M. 24 Geo. 3. B. R. 1 T. R. 435, 8vo. ed. note(ƒ). In that case the testator bequeathed unto his several relations A. B. C. &c. pecuniary legacies, and after some other bequests he devised the residue of his real and personal estate to his wife for life, with power for her to dispose thereof by her will," to and amongst such of his relations "as should be living at his decease in such shares as his wife should "think proper." The wife appointed to the lessor of the plaintiff, and one objection to the execution of the power was, that the wife could only give to a relation who would take within the degrees mentioned in the statute of distributions, and that the word "re"lations" had received this construction in Harding v. Glyn, 1 Atk. 569; and in Hands v. Hands, at the Rolls, 24 June 1782. The court held the appointment to the lessor of the plaintiff good; that it was a discretionary power, and might be exercised in favour of any one relation, and Lord MANSFIELD in giving judgment, says, ❝ if the wife had died without an appointment, it would have been a trust, and would have devolved on the court, who must have "been governed by the statute of distributions."

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1803.

MAHON

V.

SAVAGE.

1803.

MAHON

V.

SAVAGE.

❝tors be at liberty to lay before the master a plan for dis"tributing what shall be found due for the said principal

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sum of 1,000l. and the interest thereof, amongst the "testator's poor relations named in the master's report, ac"cording to their discretion, and let the master be at liberty CC to make a separate report of such legacy and plan, and thereupon let the parties be at liberty to apply for payment "of such legacy and interest accordingly."

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Reg. Lib. xlviii. 506.

GENERAL RULE.

Feb. 19.

proved, shall

be produced in

cer and deliver

ed to the exa

All wills to be THE RIGHT HON. THE LORD CHANCEllor of Ireland is this day pleased to order, that in future, all the custody of wills to be proved before the examiners of the court, be the proper offiproduced in the custody of the officer of the court in whose miner or com- custody the same are, and by him delivered to the examissioners, and miner for the purpose of examining any such witness as shall by them re-delivered to the be then under examination touching the same; and that same officer, such will be returned by such examiner to such after examinaevery tion closed. officer as soon as the examination of such witness respecting such will shall be closed; that all wills to be proved before commissioners in the country be delivered in like manner to the commissioners for the purpose of examining any such witnesses as shall then be under examination touching the same, and that every such will be in like manner redelivered by the said commissioner to such officer as soon as the examination of such witness shall be closed.

Reg. Lib. (Mot.) lxxvi. 89.

1803.

BROWNE v. O'DEA.

ON the 2d May, 1776, the plaintiff had made a lease to

Feb. 25, 28.

A beneficial lease granted at the same

time with a loan of money by lessee to lessor, held fraudulent and

void, as affording to the len

the money lent beyond legal interest.

the defendant of the farm and lands of Liss, in the county of Galway, containing 350 acres, for a term of 31 years, at the yearly rent of £184: 15: 7 1-2, which was at the rate of about 10s. 6d. per acre, under which defendant had entered into possession. In 1778, the plaintiff, having become embarrassed in his circumstances and being in want of money, der a profit on obtained from defendant the loan of 2001. for which he passed his promissory note payable in twelve months; when the note was nearly due, defendant came to plaintiff and gave him notice that he should expect it to be paid, but on plaintiff declaring that he could not then obtain money for the purpose of taking it up, defendant proposed to lend him a further sum of 300%. upon his bond for 500/. including the amount of the promissory note, and upon condition (as the bill charged) that plaintiff should execute a lease of said farm to defendant for three lives at the same rent reserved by the lease of 1776, with an additional clause giving a liberty to defendant to burn the lands for the purpose of planting potatoes. With this proposal plaintiff was obliged to comply, and accordingly he did execute his bond and warrant for confessing judgment thereon to the defendant in the penal sum of 1000l. conditioned for the payment of 5001. bearing date the 1st Nov. 1789, and on the same day plaintiff executed a lease of said lands to defendant, for three lives, (all of which were in being when the bill was filed) at the yearly rent of £187: 9: 9, (which was charged to be an under-value) in which there was a covenant on the part of the defendant to build a house on said lands, and te

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