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 mentioned, 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 pay(( ment 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 66 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 "C a trust, and would have devolved on the court, who must have "been governed by the statute of distributions." VOL. I. 1803. MAHON v. SAVAGE. 1803. MAHON V. SAVAGE. tors be at liberty to lay before the master a plan for distributing 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, ac"cording 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 the custody of the proper officer and deliver ed to the examiner or com by them re-de of Ireland is this day pleased to order, that in future, all wills to be proved before the examiners of the court, be produced in the custody of the officer of the court in whose custody the same are, and by him delivered to the examissioners, and miner for the purpose of examining any such witness as shall livered to the be then under examination touching the same; and that same officer, after examina. every such will be returned by such examiner to such 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. tion closed. Reg. Lib. (Mot.) Ixxvi. 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 lessor, held fraudulent and 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 by lessee to about 10s. 6d. per acre, under which defendant had entered into possession. In 1778, the plaintiff, having become em- void, as affording to the lenbarrassed 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 lent 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 that he could not then obtain money for the purpose of taking it up, defendant proposed to lend him a further sum of 3001. 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 1000%. conditioned for the payment of 500%. 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 1803. BROWNE V. O'DEA. cut drains and make ditches and build double stone walls, and make other improvements thereon, in consideration of which the defendant was to be at liberty to pare and burn any part of said lands that he might think fit for tillage. In Michaelmas term, 1789, defendant entered up judgment on the bond and proceeded to outlawry thereon, and obtained a custodiam and served notice on plaintiff's tenants to pay their rents to defendant. Plaintiff having become still more embarrassed by such proceedings, resolved to sell his reversion in said lands; and defendant agreed to purchase, at the rate of twenty-three years' purchase at the rent then reserved, provided plaintiff would exonerate the lands from certain charges subsisting thereon; but after plaintiff had at a great trouble and expense procured the discharge required, (to enable him to obtain which he had been obliged to borrow another sum of 1001. from defendant on his own and his brother's joint bond) defendant declined to complete the purchase and threatened to proceed on the last-mentioned bond, with a view, as bill charged, to get the lands on his own terms. After the agreement was broken off, the defendant proceeded to pare and burn about ten acres of the lands, and that, as bill charged, without having made the improvements covenanted for. The bill, which was filed in July 1797, prayed that the leases of 2d May 1776, and 1st Nov. 1789, and the bond and warrant should be brought into court, and that the last mentioned lease should be set aside or decreed a collateral security for said sum of 500. and an injunction to restrain proceedings on the custodiam, and to restrain the defendant from burning the lands; and that the profit made by the defendant by burning the lands might be set off against the debt due by the plaintiff. The defendant by his answer denied that the lease of 1st Nov, 1789 was made at an under value, and to this fact any there was a good deal of evidence on both sides; he insited This cause having come on to be heard before Lord CLARE on the 8th day of March 1800, his Lordship was pleased to decree the lease of the 1st Nov. 1789 fraudulent and void, and directed the master to take an account of all payments made by defendant on the foot of said lease over and above the rent reserved by the lease of the 2d May 1776, and also to take an account of all lasting and valuable improvements made by defendant on the lands comprised in the said lease of the 1st Nov. 1789, and to set off the amount of such improvements against the profits accruing to the defendant from paring and burning the surface of the said lands pursuant to the covenant contained in said lease of 1st Nov, 1789, and to strike a balance between the parties; and that the plaintiff should allow the defendant the amount of such sum as should be reported due of such over-payments and on foot of such balance, in discharge of the rent payable by defendant under the lease of 2d May 1776; and 1803. BROWNE. V. O'DEA. |