"tice of grants made to the archbishops by bishops of their province, of those rights of presentation well known by the name of options (a), furnish at least the inference, that though the right to present comes to an ecclesiastical person, by virtue of his ecclesiastical character, still there is no rule of law that it must be exercised in person, but that the law allows it to be transferred to another. It may indeed be said, that this is not a transfer to a layman or a stranger, but merely to an ecclesiastic of the same or higher dignity; and therefore this ecclesiastical trust may be presumed not to be violated by such transfer of its execution. Admit it to be so, still how can we reconcile to that principle the right which the archbishop has to devise these options to any one he chooses to select? And that such power exists, appears from the case of Potter v. Chapman (b), where the only question before Lord Hardwicke is made upon the propriety of the particular appointment by the trustees under the archbishop's will, but none whatever upon the right of the testator to bequeath them to his trustees. If then the bishop may sever and disannex from his bishopric a right of presentation to which he becomes entitled jure episcopatus, and no otherwise; still further, if the archbishop to whom the grant hath been made may bequeath it to a stranger by his will; or, what is an identical proposition, if it would devolve upon his personal representative in case he had made no such bequest; it will surely be dangerous to build an opinion that the presentation now in dispute must belong to the successor, on the ground that it is of an ecclesiastical character, in the nature of an ecclesiastical trust, and by reason thereof must be exercised by the person who fills the prebendal stall, and by him only. So that the doctrine laid down in Doctor and Student would appear to be correct, where no distinction whatever is introduced between presentations made by laymen or presentations made by corporations; between advowsons appendant to manors, or advowsons appendant to offices of the church; but it is laid down generally thus (c): It is holden in the law of the realm, that the right of presentment to a church is a temporal inheritance, and shall descend by course of inheritance from heir to heir, as lands and tenements shall, and shall be taken as assets, as lands and tenements be.' And again, the goods of spiritual men be temporal, in what manner soever they come to them, and must be ordered after the temporal (a) See now p. 93, supra. (b) Amb. Rep. 98. (c) See Dial. 2, cap 26. C. J. Tindal's judgmentcontinued. "law, as the goods of temporal men must be.' Now if the vacant turn in a benefice be a chattel interest, as the authorities above referred to seem abundantly to show, if it passes by grant, is devisable by will, or, in case of no bequest, goes to the personal representative; then indeed is the passage above cited a strong proof of the opinion of learned men at the early period when that book was written, that no just distinction can be taken between a right of presentation vesting in a spiritual man, by whatever means it may come, and a similar right in a layman. It affords a further argument that the right to present to the vacant living cannot devolve upon the successor, and go along with the prebend, that a prebendary is a corporation sole, and that by law a corporation sole is incapable, except by custom, of taking in succession chattels real or personal, either in possession or action (c). If this be the law, how can this vacant turn, once severed from the prebend, become re-united, and descend with the corporation sole? "That such would be the case as to some of the profits of the prebendal stall, where they fall due in the lifetime. of the predecessor, appears clear. Rent which accrued due in his lifetime would go to his executor. For the statute 28 Hen. 8, c. 11, gives to the successor the rent only which accrues during the vacancy; leaving the right to the rent due in the predecessor's lifetime where it then stood, that is, as a chose in action or a personal chattel, which would go to the personal representative. But it is very difficult to draw a sound distinction between rent which has fallen due, and a right of presentation which has attached during the life of the former prebendary, except upon the ground that the one is a right of a temporal nature, the other of a spiritual; and whether that be a sound distinction or not, I must lean upon the names and authorities which I have before given. "The case of the donative, cited from 2 Wils. Rep. (d) does indeed furnish some inference for a different opinion from that which I have formed; but I must confess myself unable to see the ground upon which that judgment proceeded in so short and unsatisfactory a report, with such degree of clearness as to place it in competition against the other principles to which I have referred, and which lead my mind to a different conclusion. "I have therefore felt myself bound by the analogy to be drawn from cases decided as to lay advowsons, to adopt the opinion, that the right of presentation in this case (c) Co. Litt. 9 a, 46 b; Hob. 64. (d) See p. 325, supra. "belongs to the administratrix of the late prebendary. I must admit, at the same time, that it might be more fitting and expedient that it should devolve upon the successor; but I am not asked by your lordships what is most expedient, but what the law at present is upon the question submitted to us " (e). But, in the case of a bishop, the void turn of a church, Peculiar case the advowson whereof belongs unto him in the right of his of deceased bishopric, by his death does not go to his executor; but bishop. when the temporalities of the bishopric are seised into the king's hands, the king shall present (f). This is said by Baron Bayley to be the "single exception" to the rule laid down above (g). So if the parson of a church ought to present to a vicarage; if the vicarage becomes void during the vacancy of the parsonage, the patron of the parsonage, and not the executor of the deceased parson, shall present (h); but if the parson be made a bishop, in such case he shall present (i). A grant of the next avoidance to one without his privity Advowson in is held a resulting trust for the grantor, no other trust trustees. being declared (k). A. seised in fee devised his lands and tenements to trustees, to apply part of the rents in augmentation of eight several vicarages. The church of B. became vacant, decreed that the heir of A. shall present (1). R. S., rector of B., devised his perpetual advowson of B. with the appurtenances to G. S., willing and desiring her to sell it to Eton College, and, on their refusal, to Trinity College, and on the refusal of both, to any other college in Oxford or Cambridge, being the best purchaser. This is not a resulting trust of the advowson to the heirs of the testator, but a devise of the beneficial interest therein to G. S., with an injunction only to sell to particular societies, and on an avoidance by the death of the testator, the devisee, and not the heir, shall present (m). Where there are several cestui que trusts of a presentation, they must all agree, or there can be no nomination (n). Trustees had an advowson, with directions to present in a certain time. This is directory only, and they may do it afterwards, but they must join in the pre (e) 8 Bingh. R. 550–563. (f) 2 Rol. Abr. 345. (g) 8 Bingh. 550. (h) 2 Rol. Abr. 346. ()7 B & C. 134, 149. (k) Duke of Norfolk v. Browne, Pre. in Ch. 80. (1) Kensey v. Langham, Ca. temp. Talb. 143. (m) Hill v. Bishop of London, (n) Seymour v. Bennet, 2 Atk. Advowson in trustees. sentation. General disusage is evidence to lay aside that part of their constitution which arose by consent (p). Where trustees have a power to elect a vicar, they must all join, or the bishop may refuse their nominee. Election as well as presentation is requisite on the part of the trustees, and they shall give notice of their meeting, and if the election be not fair, the court will not compel all the trustees to join in the presentation. The election in such a case is a personal trust, and cannot be executed by proxy (q). R. devised his manors, advowsons, &c., to pay his son 1,000l. a year out of the rents and profits, and directed the rest to be laid out and settled. By a devise of lands, tenements and hereditaments (subject to a term of eleven years) in trust to receive the rents, issues and profits, from time to time, and to dispose, &c., an advowson in gross passes, and a sale of the next presentation within the term by direction and for the benefit of the cestui que trust was established (r). Where, by neglect, the number of trustees to present to a living was not filled up at the time of an avoidance, the court could not by an injunction prevent the effect of a presentation under the legal title of the heir of the surviving trustee without special ground, but the court will take care that the trust shall be properly filled up in future (s). Where the trust of an advowson is to present some fit person, such as the inhabitants and parishioners, or the major part of the chiefest and discreetest of them, should nominate, the right of election is in the inhabitants above the age of twenty-one, paying the church and poor rates, and popular election by a majority of such voters and others not so qualified has been established (t). There has been also another case where the doctrine of a resulting trust was holden not to apply, as the whole estate had been devised away from the heir; and where it was said that if a person seised of an advowson be also incumbent, and devises it, the devisee, and not the heir, shall nominate after his death (u). Charitable trustees are expressly excepted from the act of 1 & 2 Vict. c. 31 (x). If trustees have (p) Attorney-General v. Scott, 1 Ves. 415. (q) Wilson v. Dennison, Amb. 82; Attorney-General v. Scott. 1 Ves. 415. (r) Earl of Albemarle v. Rogers, 2 Ves. jun. 477. (8) Attorney-General v. Bishop of Lichfield, 5 Ves. 828. (t) Fearon v. Webb, 14 Ves. 13. See other cases where the principles of election are discussed, 10 Ves. 335; 3 Atk. 596; 1 Ves. 43. (u) 1 Atk. 622; cf. also 1 Nev. & P. 314, 328; 6 Ad. & Ell. 153. 394. (c) See infra, p. 369. the right of presentation only upon the nomination of others, they are in the case of a donative to judge of the fitness of the person nominated, as a bishop does, and may absolutely reject on the ground of his being illiterate; but if rejected on the ground of immorality, that might be tried by a jury on a return of the mandamus to the trustees to admit (y). In Bristow v. Skirrow (z), the testatrix directed her Bristow v. trustees to sell the advowson of F. immediately after the Skirrow. death of H., the present incumbent, but on no account to sell it to any member of the family of H.; the proceeds of such sale to fall into her residuary personal estate. It was holden that the next presentation was vested in the trustees, and that they must present. In Reg. v. Trustees of Orton (a), an advowson was Reg. v. Trusvested in feoffees, in trust, upon every avoidance, to tees of Orton. present to the ordinary such person as should be elected by a majority of the landowners in a parish. On motion for a mandamus to the trustees to present a clerk, on the ground that he had been so elected, it was holden that either the remedy of the landowners against the trustees was in equity for a breach of trust, or if the landowners had a legal right their remedy was by quare impedit, and that in either case the mandamus would not lie. It was holden, also, that the remedy, if any, of the clerk was in equity, and that he had no legal right. It was holden by the Lord Chancellor, Lord Cranworth, Johnstone v. and the Lord Justice Knight Bruce, reversing in part the Barber. decision of the Master of the Rolls, that where a testator devised to trustees an advowson, in trust to sell upon the death of the then incumbent and to divide the proceeds between seven persons equally as tenants in common, on the death of the incumbent the right to present was vested in the seven, and they, not agreeing among themselves as to its exercise, it must be determined by lot which of them should nominate the clerk to be then presented by the trustees (b). Where testator devised his manors, advowsons, &c. to Sherrard v. trustees to pay his son an annuity of 1,000l. for life, and Lord Harborough. the rest of the profits to be laid out in land during his son's life, and then settled, it was holden that the son had a right to present to a living when vacant, not under the devise, but as heir at law, it being a fruit undisposed of (c). (y) 3 T. R. 646. (z) 5 Jur. 1379 (A.D. 1859). G., M. & G. 439; 2 Jur., N. S. (c) Amb. 165, Sherrard v. Lord |