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1803.

MAHON v. SAVAGE.

Feb. 16. TESTATOR bequeathed to his executor the defendant Legacy to exe.

cutor to be disone thousand pounds, to be distributed amongst his poor tributed “ relations, or such other objects of charity as should be amongst the

poor relations of “ mentioned in his private instructions to his executors.” testator : A re

lation who was No such private instructions were left; and the master hav- poor at the

time of testaing been, in 1797, directed to inquire and report who were

tor's death, but the poor relations of the testator, the cause was now set became rich

before distri. 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 were beyond the degree prescribed by the statute of distri- before distribubutions.

tion, his claim not transmissi. ble to his per

sonal repreMr. Plunket on behalf of the personal representative of sentative. Mathew Lynam, contended that the report should be sent

Where a per

son has a power back to the master, to insert the name of the said Lynam of distribution poor relation of the testator, and also to strike out the among poor re

lations, he may names of such persons as were beyond the degree of rela- distribute tionship required by the statute of distributions. On the amongst all

poor relations, first point, it appeared that Lynam had been a relation of the however re

mote : But testator within the degree, and was a poor man at the time where the of the death of the testator, but had become affluent in court is called

on to distri. his circumstances previous to 1797.

bute, in failure

so empowered, The Lord CHANCELLOR was of opinion, this was meant it will confine as a charitable bequest, and that the objects of that charity tions within should be the testator's own relations : That it was nothing distributions.

the statute of 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)

as a

of the person

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

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.(6) 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 2,0001. 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.

(6) Ambl. 708.

1803.

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.

MAHON

V. SAVAGE.

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(f). In that case the testator bequeathed unto his several relations. A. B. C. &c. pecuniary lega cies, 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 “ “ 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

re

a trust, and would have devolved on the court, who must have “ been governed by the statute of distributions."

Vol. ).

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 " sum of 1,000l. and the interest thereof, amongst the

testator's poor relations named in the master's report, according to their discretion, and let the master be at liberty 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.”

Reg. Lib. xlviii. 506.

GENERAL RULE. Feb. 19. All wills to be THE RIGHT HON. THE LORD CHANCELLOR proved, shall be produced in 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 officer and deliver produced in the custody of the officer of the court in whose ed to the examiner or com

custody the same are, and by him delivered to the exa· missioners, and miner for the purpose of examining any such witness as shall

livered to the be then under examination touching the same; and that after examina. every such will be returned by such examiner to such 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.

Feb. 25, 28. On the 2d May, 1776, the plaintiff had made a lease to A beneficial

lease granted the defendant of the farm and lands of Liss, in the county at the same

time with a of Galway, containing 350 acres, for a term of 31 years, at

loan of money the yearly rent of £184:15: 71-2, which was at the rate of by lessee to about 10s. 6d. per acre, under which defendant had entered fraudulent and into possession. In 1778, the plaintiff, having become em- void, as afford

ing to the lens barrassed in his circumstances and being in want of money, der a profit on obtained from defendant the loan of 2001. for which he the money Jent

beyond legal passed his promissory note payable in twelve months ; when interest. 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 thet he could not then obtain money for the purpose of taking it up, defendant proposed to lend him a further sum of 300l. upon his bond for 500l. 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 500l. 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 to

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