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Deaf to each promise, of no threat afraid,
• Hosea viji. 7.
+ Jer. i. 10, and xviii. 7-12. | Horne's Sermons. Dis. XLI. $ 1 Cor. iii. 19, 20; Isa. Xxx, 1, 1. #Isaiah lx. 12.
1 Matt. xvi. 18; Rey. ii. 5, 16, 26, 27 ; iii. 3, 15, 16, &c., compared with their subsequent history.
. . No. XXXVI. _ON PROPERTY DEVISED FOR REPAIRING) CHURCHES.
JOHN Burton, by an instrument tripartite, bearing date on the 8th of January, 1503, and purporting to be his last will as to the disposition of certain lands and tenements in Watlingstreet, of which he was seised in fee, but towards the purchase of which Maude, the widow of Robert Frosdeyn, had contributed 201. out of her own goods and her husband's, devised in the following words: “ I, the said John Burton, being so sole seised in my demesne as in fee, as is aforesaid, for the lealth of the souls of the said Robert, and Maude bis wife, their children's souls, and my soul, and all Christian souls, give and bequeath, by this my last will to Mr. John Lycheielde, Doctor of Law, parson of the parish church of St. Austen, William Batyford, and Nicholas Skyóner, churchwardens, of the goods, ornaments, and rents of the same parish church of St. Austen, and to the parson and churchwardens of the said parish church of St. Austen for the time being, all the aforesaid
lands and tenements, and other the premises, with the appurtenances, to have and to hold the said lands and tenements, with the appurtenances, to the aforesaid parson and church wardens of the aforesaid parish church of St. Austen, and to their successors, parson and churchwardens of the said parish church ior the time being for evermore, of the chief lords of the fee by service thereof due and of right accustomed, therewith to perform this my last will under written; that is to say: I will that the aforesaid parson and churchwardens, and their successor, parson and churchwardens of the said parish of St. Austen for the time being, for evermoré, of the rents, profits, and revenues coming of the said lands and tenements, shall do, find, support, and maintain for evermore, a taper of wax of a pound weight, to stand and burn before the image of our Lady, in the chancel of the said parish church at all divine service to be done and said within the same parish church in the
* Lands are devised to the parson and church wardens of the parish church of A. and their successors, to the intent that the rents, after certain charges are defrayed, may go to the use of that parish church, at the discretion of the parson and churchwardens, and their successors. After the fire of London, the parish of A. is united with the adjacent parish of P., and the parish church of A. becomes the parish church of the united parishes of A. and P.-The parishioners of F. have no right to have any part of the rents applied in ease of that proportion of the expenses of maintaining and repairing the church of the united parishes, which it falls upon them to defray.
Where lands are given to the use of a parish church, it is not prima facie a due appli. cation of the charity to mix up the rents with the produce of parochial rates, so as to form a general fund, out of which the repairs of the church and other parochial expenses are defrayed.
The crown is entitled to any payment directed, before the 23d Henry VIII., to be made for a superstitions use, out of the rents of lands. .
A relator need not have any interest in the due administration of a charity.
Where a record is both an information and a bill, and the whole of the relief specifically prayed is in respect of an alleged interest of the relator in the trust property, the Court, if it sees that there is any occasion for regulation in the management of the charity, will not dismiss the information, even though the claim of interest on the part of the relators is so groundless, that their bill is dismissed with costs.
honour of God, our Lady, and all saints; and that the same taper to be supported and maintained, and also to burn at all divine service within the said parish church, in like manner and form as the aforesaid Maude Frosdeyn hath caused the same light there to be found since the time of the decease of the said Robert Frosdeyn, late her said husband. And I will that the residue of the issues, profits, and revenues, coming of all the said lands and tenements, go to the supportation and maintaining of the reparations of the said lands and tenements, and to the use of the said parish church, at the discretion of the said parson and churchwardens, and of their successors, parson and churchwardens of the same parish church of St. Austen for the iime being, for evermore. Also, I will and order by this my last will, that, as often and when as the said parson and church wardens, and their successors, parson and churchwardens for the time being, sball default in finding, supporting, and maintaining of the said taper by the space of a month, contrary to the tenure, form, and effect above declared and expressed, then and so often the said parson and churchwardens of the said parish church, and their successors, parson and church wardens of the same parish church for the time being, shall content and pay, or do to be paid, of the issues, profits and revenues coming and growing of the same lands and tenements, with the appurtenances, to Mr. Nicholas Halswell, parson of the parish church of St. John the Evangelist, in Watlingstreet,' of London, and to – Askew and to Richard Whitehed, churchwardens, of the goods, ornaments, and rents of the said parish church of St. John, for every inonth that the said parson and churchwardens of the said parish church of St. Austen, and their successors, parson and churchwardens of the same parish church of St. Austen for the time being, shall default in finding, supporting, and maintaining of the said taper, in the name of a pain, 6s. 8d, sterling." To enforce the payment of this penalty, the parson and churchwardens of St. John's were to enter and distrain upon the lands.
The church of the parish of St.
Austen, and the church of the adjacent parish or St. Faith's, were among the buildings destroyed or damaged by the fire of London. Shortly after that accident, these two parishes were united. By the 22 Car. II. c. 11. s.63, it was enacted, that “The parishes of St. Austen's and St. Faith's shall be united into one parish, and the church heretofore belonging to the said parish of St. Austen's shall be the parish church of the said parishes so united;" and by the 64th section, that “The said respective parishes herein before mentioned and appointed to be united as aforesaid, shall for ever hereafter remain and continue so united and consolidated and annexed unto the several and respective parish churches, by this act appointed to be rebuilded as aforesaid; and the respective parish ioners, and the inhabitants of the said several parishes so to be united as aforesaid, by force of this present act, shall hereafter resort to the said churches respectively as to their proper parish church. And all tithes and other duties heretofore due and payable to the respective incumbents of the said parish churches respectively, shall hereafter be paid and payable to the incumbent of that church only, which by this act is appointed to be rebuilded and established for the parish church of the parishes so united.".
The 65th section provided, “That all plate and goods heretofore belonging to any of the church wardens of any of the parishes of those parishes burnt down, which are not now to be rebuilded, for the use of the said churches, shall be enjoyed by the respective churchwardens, and their successors, of the respective parishes of such churches to be rebuilded respectively, whereunto the said other churches burnt down are united by this act, to the use of the said churches and parishes respectively."
The 68th section declared, “That notwithstanding such uvion as aforesaid, each and every of the parishes so united, as to all rates, taxes, parochial rights, charges and duties, and all other privileges, liberties and respects whatsoever, other than what are hereinbefore mentioned and specified, shall continue and remain distinct, and as
heretofore they were, before the making impressed on this property a trust for of this present act."
the primary purpose of repairing the Shortly after this appropriation of church of the parish of St. Austin's; one church for the use of the parish- and the benefit, intended for the inioners of St. Austin's and St. Faith's, habitants of the parish, was to be an arrangement was entered into enjoyed by them only through the between the two parishes for settling medium of the conservation and re the proportion in which they were to paration of that building which they contribute respectively to the repairs frequented as their proper place of of the common church. As the parish public worship. The act of Car. II. of St. Faith's was of much greater has given the inhabitants of an adjacent extent than that of St. Austin's, it was parish a right to attend divine service agreed that two-thirds of those ex. in the same church; but the building penses should be borne by the former, does not thereby become less useful to and one-third by the latter; and in the parish of St. Austin's. Being the that way were the repairs of the church church of the united parishes, so far as provided for, from the fire of London, they are united, it is also the church down to the filing of the information of each of them, so far as they continue and bill. During this period, the share distinct and separate. There is no of the expenses, which fell upon St. part of it which is not portion of the Austin's, had been defrayed out of a church used by those on whom Burton fund composed of the proceeds of meant to confer an advantage; there rates, made by the vestry for the relief is therefore no part of it which ought of the poor and for general parochial not to be repaired out of the rents of purposes, aided by the rents and profits the property devised by him. of the messuages devised by Burton, Even if it should be admitted, that and of other tenements held in trust the repairs of the church of the united for the parish. The pews allotted for parishes are not the precise purpose the accommodation of the parishioners which the testator had in view, yet, as of St. Faith's greatly exceeded, in now there neither is, nor can be, any number and size, the pews which were church answering exactly to the deappropriated to the parishioners of scription of the parish church of St. St. Austin's.
Austin's alone, the rents of the property Under these circumstances, pro- must, on the doctrine of cy pres, be ceedings, in the shape of a record, applied to the repairs of the church of which was both an information at the the united parishes, as the object relation of the church wardens of St. which comes the nearest to the purFaith's, and a bill by the same church- pose expressly pointed out by the will. wardens, as plaintiffs, were institured If the claim made on behalf of the against the rector of the united parishes parish of St. Faith's should fail, there and the churchwardens of St. Austin's. must at least be a reference for the The bill and information prayed a future regulation of the charity. To declaration that the rents of the mes mix up the rents of this property with suages devised by Burton, or so much the aggregate produce of parochial thereof as should be necessary, might rates, so as to form a fund for general be applied to the repairs of the church parochial purposes, is not prima facie of the united parishes; the repayment a due execution of the charitable trust of such sum as the parish of St. Faith's created by Burton. had contributed to those repairs, beyond The provision for the support of a what it would have been bound to have burning taper is void, as being a superraised for that purpose, if the rents of stitious use; and that portion of the the devised premises had been duly revenue will be applicable to the other applied; and directions for the future charitable purposes expressed in the letting of the tenements and the due will. application of the rents and profits. Mr. Horne, Mr. Barber, and Mr. B.
Mr. Sugden and Mr. Koe, for the Anderdon, for the church wardens of information and bill.
St. Austin's. The will of the testator has clearly The purpose of Burton was, to
relieve the parishioners of St. Austin's from the whole or part of the rates, to which they would otherwise be liable for the repairs of the church. He did not mean to confer any boon on the parish of St. Faith's; and there is nothing in the act to exempt the latter from former liabilities, or to give them a right to participate in revenues, which, before the fire of London, belonged exclusively to others. By the act, one building became the church of both parishes; but in every other respect, each parish continued distinct as to its rights and liabilities.
The 65th section provides, “ That the plate and goods belonging to the churchwardens of that one of the two parishes whose church is not rebuilt, shall be enjoyed by the church wardens of the parish whose church was rebuilt." Thus, an express enactment was deemed necessary, where one of the united parishes was intended to acquire any interest in that which had theretofore been the separate property of the other; and the inference is, that, where there is no such enactment, each parish continues entitled to the exclusive enjoyment of the property which belonged to it before the union
The parish of St. Faith's, therefore, has no interest in the property devised by Burton; and the case inade by the bill falls to the ground.
Neither can the record be sustained as an information. For first, the relator has no interest in the fund; secondly, the information is framed, not with a view to regulate the chas rity, but in order to have a right declared ; not to apply the income according to the testator's intention, but to carry it away to tbose who have no concern with it.
Mr. Cooper for the Rector.
The first question is, whether the parishioners of St. Faith's have a right to demand, that the whole revenues, arising from the property devised by Burton, shall be applied in aid of the repairs of the church of the united parishes; although the revenues exceed that proportion of the repairs, which would otherwise be borne by the parish of St. Austin. To make out their claim, the parishioners of
St. Faith's must establish a right, either under Burton's will, or under the act of Parliament.
So far as the rights of the parties depend upon the will, it is impossible to raise a question; for, in 1503, the parishioners of St. Faith's had no interest in the church of St. Austin, and it is to the use of that church, that the testator directs the residue of the rents of the tenements to be applied. He does not seem to have intended any benefit to the parish of St. Faith's; as a proof of which, it may be observed, that, when he imposes a penalty on the parish of St. Austin's, in the erent of their omitting to supply a taper, according to his direction, he orders that penalty to be paid, not to the parish of St. Faith's, but to the parish of St. John.
Neither, as it appears to me, have the parishioners of St. Faith's acquired, under the act of parliament, any interest in the tenements devised by Burton. It is true, that, under the act, a church was to be built, sufficient to accommodate the inhabitants of both parishes; but the 68th section provides, that parishes, so united sith respect to their church, were to continue distinct as to all rights, taxes, parochial rates, charges and duties. The burthens to be borne, and the rights to be enjoyed by these two parishes, were not to be interfered with by the mere circumstance of their having thenceforth one common church; and, as before that act, the revenues arising from this property were applicable in ease of the burtheus to which the parishioners of St. Austin's would have been subject for the repairs of their church, it is impossible to contend, that the parish of St. Faith's acquired by such means any interest in the rents. It was never meant, that the parish of St. Faith's should be relieved from expenses out of emoluments derived by the parishioners of St. Austin's from property bequeathed for their use. Suppose, that the church of St. Faith's had been rebuilt, instead of the church of St. Austin's, and had become thenceforth the church of the united parisbes, could that church bave claimed any benefit from this fund, except so far as it was an accommo.