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preliminary question upon whom the burthen of proof rested. The administration to the husband being the point in issue, his next of kin had prima facie the first right to it; but there being a residuary legatee, this right became superseded. The parties claiming under this latter character were not residuary legatees themselves specifically, but merely derivatively T jm one who was. They were, therefore, one step further removed from the property. The presumption of law was certainly always in favour of the heir at law with regard to freehold, and equally so of the next of kin with regard to personal property; the statute of distribution disposing of an intestate's property amongst his next relatives, solely upon the presumption that such was his intention, unless the contrary should be expressed. It was therefore incumbent upon the representatives of the wife, in this case, to prove her survivorship, as the party in whom the property vested, and from whom, in consequence, they derived their claim to it. He then entered into an examination of the facts in evidence, and was of opinion, that they were insufficient to repel the presumption of the husband's having survived the wife, which the court was bound to assume from the circumstance of their having been overwhelmed by one common calamity, and perished together; observing in particular, that though the wife might be very active and laborious in her domestic duties, yet the natural timidity of her sex might prevent exertion in the moment of danger, whilst the husband,
on the other hand, though 7abouring under the bodily affliction of an asthma, might still retain his manly firmness in resisting impending destruction, particularly as, from his situation in life, he must have often faced death in various shapes. He was therefore in no degree satisfied by the proofs in the cause that the wife survived the husband, and should therefore decree the administration to hi6 next of kin. In thus deciding the law, however, he did not mean to afiirin positively which of the two was the survivor, but merely that there was not sufficient proof that it was the wife, to repel the presumption of law that it was the husband. The administration was accordingly granted to the husband's next of kin.
The Attorney- Generaly. Mills and Freeman.—This was the second ar* gument before the Loid Chancellor in this case, which came before his Lordship in appeal from his Honour the Master of the Rolls. The point in argument was this: a testator devised the residue of all his effects for the purposes of promoting the propagation of the Gospel in foreign parts, and in England, for bringing up clergymen as missionaries, and such other charitable purposes as he should thereafter by any codicil appoint. No such appointment, however, was made; and, therefore, the question was, whether, by the ancient rules of law, the Crown could supply the appointment, by nominating some other charity to participate with the two which the testator had specified, so as to exclude his next of kin. Iiis Honour pronounced a decree
■A' decree in favour of the latter.
Sir Arthur Pigot now contended, that as the difference between legacies to charities, and legacies to individuals, had been recognized for centuries, it was quite idle to contend that they were to be governed by the same rule. He claimed, for the AttorneyGeneral, all the principles on ■which those cases had been decided -j he claimed the benefit of them as part of the law of the kind. Siderfin's case had established the rule of construction, which the Court was bound to adopt. He knew the Court could not make a will for a man; but the Court must take it for granted, that a testator knew the rules of law. In this instance, the testator had devised to two charities, which he named, and others which he intended to add; but as he neglected to specify the particular objects of his bounty, the rule was, that he had sufficiently demonstrated a charitable purpose to enable the Court to act upon it. But then, it was asked, in what proportions should the property be distributed? The learned counsel was of opinion, that if a testator made a bequest to the Foundling-hospital, the Lying-in-hospital, and the Bluecoat-school, in such proportions as he should thereafter name, and then die without naming the proportions, the court would give the property in equal thirds. In the present case, the testator did not name all the objects of his charitable purposes; but as he had specified two, the want of nominating others could not destroy his intention. But it had been said, that, in consequence of
this omission, the court could not tell in what manner to act. He submitted, however, that as the testator named no other charities, he meant to confine his bounty to the two which he had specified; by naming no others, it was evident, that he had chauged his mind; and the two must either take the whole, or the court would appoint another charity to have a third.
Mr. Leach, on the other side, contended, that as the testator died without perfecting his gift, no court could supply the uncertainty. In Siderfin's case, the testator had perfected his gift; and accordingly the court disposed of his property to a charity, and excluded his next of kin. Upon the whole, if the present case were considered on the language of the testator, it must be evident that he meant to give to certain specific charities, and having neglected to name them, his next of kin were entitled.
The Lord Chancellor said, that when he considered the weight of authority by which this case had been decided, he felt the most anxious wish that he should not be wrong in pronouncing his judgment. When the first argument was concluded, his Lordship had no difficulty in saying, his mind was still so assailed by scruples, that he directed the second a'rgume.nt, which he had heard that day. He should have been glad if the case had been reheard before the Master of the Rolls; but as he was bound to discharge his duty, he meant to give judgment on Monday next, and was not quite satisfied that he ought to affirm the decree. In executing wills, the court was T t bound bound to adopt such constructions as the rules of law prescribed; but the same words would receive a different construction in the case of charities, from that which the law adopted in cases of individuals. A case more strongly in point than that of Siderfin's could not be cited. His Lordship had formerly seen almost all the private papers in that cause, and though the testator's gift was not complete, as the note by which he intended to specify the objects of his bounty was not found, yet the court disposed of his property to a charity, and excluded the next of kin. The present case resolved itself into this: Did the testator, looking at this clause in his will, intend to say, " I mean to give to these two charities, and such other charities as 1 shall name;" thereby declaring that he gave to charities: or did the clause mean this, " Unless I name other charities, I mean not to give to charities at all?"
His Lordship had now only to say, that with a mind formed to sift and doubt, more than was consistent with his own comfort, he would pay as much attention to the case as the human mind could devote to any subject; he had a severe and arduous duty to perform, and should always feel the utmost pain in differing from persons on- whose authority he placed a much greater value than on his own.
The Lord Chancellor afterwards gave judgment at great length, and with a full explanation of the law upon the subject. His Lordship stated the cases, in which the property of a testator, left for general' purposes, might be carried into effect, according
to his views, or modified at the discretion of the court. In the present case, there was no doubt that the objects were legitimate, but they were not definite. There were two sources of uncertainty and difficulty. In the first place. the sums or divisions of the property, allotted to the different purposes, mentioned by the testator, were not fixed; and, in the second place, all the objects for which it was destined, were not specified. Neither of those circumstances, however, could affect the decision of the court, iu any questionregardingthe rightsof the testator's next of kin. The will here was pointed and definite. Itdesignated two objects for the behoof of which the property of the testator wa3 destined,—the propagation of the Gospel in foreign parts, and the instruction of missionaries. The third was not specified, because the testator had not, at the time he made it, determined what it should particularly be; but he had left no uncertainty with regard to its nature; namely, that it should be a charity. This third division of the property therefore was left a» little at the disposal of the next of kin, as if it had been actually destined for the propagation of the Gospel, or any other definite end. His Lordship therefore gave it as his judgment, that the third proportion of the legacy should neither be absorbed by the two specific distinctions mentioned in the will, nor revert to the natural heirs of the testator, but be devoted to such charitable purposes as should be thought proper by the court; and that the master should point out such as might be beneficial.
Fellotces, falsely called Stuart, yr. Stetcart, otherwise Stuart.—This was a proceeding at the instance of Miss Jane Fellowes, of St. Clement's Danes, describing herself as falsely called Stuart, and wife of William Dundas Stuart, against Capt. Wm. Stewart, of Dover, Kent, otherwise William Dundas Stuart, for nullity of a marriage that had been had in effect between them, on the ground of an undue publication of bans.
The defendant was the son of a gentleman's servantin Edinburgh, but who afterwards became a retail dealer there in spirits and tobacco. He was born on the 15th of September, 1783, and baptized soon afterwards in Troii Kirk parish, Edinburgh, by the name of Wm. Stewart only. He was educated at lienor* Hospital, and at a suitable age apprenticed out by that institution, but disliking his situation, left it for the army, and rose to his present rank of Captain. In the autumn of 1S11, being resident in Eaton-street, Pimlico, he renewed an acquaintance he had formerly had with a Mrs. Corbet of the Strand, a countrywoman of his, by whom he was introduced to Miss Fellowes, who then resided in Nelson-square, Blackfriars-road. To this lady he represented himself as the son of a gentleman of large landed property in the county of Perth, and presumptive heir to the title and estates of the Right Hon. the Earl of Moray, in Scotland, and Baron Stuart, of Castle Stuart, in England. He also described himself by the names of "Wm. Dundas Stuart," and assumed the arms of
the family of the Earl of Moray. By these means he succeeded in gaining Miss Fellowes's affections; but her mother positively refused her consent, from a dislike she had taken to Captain Stewart, which was so strong, that she declared she would not have him herself if he was to offer, even though he should succeed to the title and estates of which he boasted. The parties availed themselves, however, of a temporary absence of Miss Fellowes from home to effect their purpose, and a marriage accordingly took place between them on the 30th of October, 1811, at Saint Margaret's Westminster, in his assumed name of " William Dundas Stuart," she being then but 18 years of age, and he 28. The marriage took place in pursuance of a publication of bans, effected through the medium of Miss Elizabeth Myne Jones, a friend of Miss Fellowes's. He gave her his name for this purpose, in the course of a morning's walk with her and Miss Fellowes, as " William Douglas Dundas Stewart;" and she, on her return home, committed them to paper, and the publication accordingly took place the first Sunday in those names. He afterwards, however, for some reason, thought proper to call on the church officer, and representing this as an error, persuaded him to omit the name of "Douglas," and the bans were, inconsequence published the two following times with his names as " William Dundas Stuart," instead. The mother did not think proper to institute any proceedings to call the validity of the marriage in question during her daughter's minority;
but upon the minority ceasing, the daughter herself did so.
It was contended on her part, that, though the stat.26Geo. II. commonly called the marriage act, did not expressly enact that all marriages solemnized by publication of bans, not in the true names of the parties, should be void, yet several cases had occurred in which the Court, in construing the two clauses, that the minister should not be ohliged to publish the bans unless the "true" names of the parties were delivered to him, and that all marriages solemnized without publication of bans or licence from a proper authority should be void, had held that by the "true" names of the parties was meant the names by which they are commonly known to the world, in order that all persons interested might have notice of what was about to take place; and, therefore, thatapublicationinany othernames, which should prevent parties from having that knowledge, was not a publication within the meaning of the act 5 and the Court was, in consequence, bound to enforce the letter of the law in support of its spirit, it being described <f an Act for the better preventing Clandestine Marriages;" and declare any marriage had in virtue of such a publication null and void: and the circumstances of this case being, as it was contended, such as to bring it within the range of this doctrine, it was submitted, that the marriage in question must be declared void.
It was contended on the other hand, that setting aside Captain Stewart's false representations of himself and circumstances, his
real rank in life was" fully equal to the expectations which Miss Fellowes was justified in forming; that she appeared herself very anxious for the alliance, and therefore the Court could not now, in a suit brought by her, consider these circumstances as forming a sufficient case of fraud to justify it in straining the letter of the law upon so slight a variation from the real name «s that in which the bans had here been publisher.!.
Sir John Nicholl observed, that the ground of nullity in this case was, that the publication of bans and the marriage had both taken place in false names. The party bringing the suit was a minor, her father dead, and her mother withholding her consent. This latter fact, however, was not a grou nd of nullity i n itself, if the publication had been in the true names; but it was material in a case of this description, as tending to shew a fraud against the spirit of the act. By the act, and the decisions which had since taken place under it, it was established that the publication mast be in the true names of the parties, which were the names <y which they are most usually known, and upon the ground that all parties whose rights are affected by what is to take place may have due notice. The parties themselves too have an interest in sueh a publication, as there might be concealed up to that time, circumstances which it'"8 of importance that they should know, and which might have a considerable influence on their determination relative to the marriage iself. What were the true names