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Went to pieces. The bodies of rescue. Upon both 'grounds, Taylor and his wife were found therefore, of principle, and of close together, and it further ap- fact, the court must conclude, that peared that she was a woman of the husband was the survivor, and a very robust constitution, and in accordingly grant the administrathe habit of enduring great fa- tion to the next of kin. tigue by her management of the On the part of the wife's next officers' mess, as well as that of a of kin, it was contended, that the great many of the soldiers, whilst presumption of law alluded to he was rather sickly, and had was only applicable to cases been latterly much alficted with where parties perish together, in an asthma.
such a manner as to preclude the It was contended on the part of possibility of obtaining any evithe husband's next of kin, that dence as to which of them was by the principles of the Roman the survivor. Where, however, civil law, which had been adopted evidence as to that fact was prointo the law of this country, and duced, as in the present case, the were in fact the only principles case must be decided upon that governing a case of this kind, it evidence only. Here it appeared was laid down that where two that the parties had perished by persons perished together in a the same accident, and their bocommon calamity, and it became dies were afterwards found togea question which of the two was ther, and that the common course the survivor, the presumption of of nature had, in this instance, law should always be in favour been inverted by the wife being of the person possessing the more the more strong and robust of robust constitution and greater the two. The court must, therestrength, as being thereby the bet- fore, necessarily conclude that ter fitted to struggle with the dif- she was the survivor, and accordficulties of his situation, and re- ingly grant the administration of sist for a longer time the opera- her husband's effects to her retion of death. Thus where the presentatives. father and son shall perish toge- Sir John Nicholl observed, ther, the presumption of survi- that this case presented itself for vorship is in favour of the son, decision under very singular cirif above the age of puberty, but cumstances. He recapitulated of the father if under; the same them; and observed, that the quesas to a mother and daughter; and tion as to the administration hadore as to husband and wife, the pre- not been gone into; but that with sumption is in favour of the hus- respect to the general administraband. This, however, like all tion, the counsel had argued upon other legal presumptions, was lia- the legal presumption of survible to be repelled by evidence to vorship, and whether or not that the contrary ; but in this case it presumption was sufficiently rewas contended, from the situation pelled by the facts in evidence. of the wife at the time the acci- He agreed in the doctrine that dent happened, it was most pro- has been laid down, of the prebable that she had perished be- sumption being in favour of the fore her husband descended to her husband, but it was a necessary VOL. LVII.
preliminary question upon whom on the other hand, though a the burthen of proof rested. The bouring under the bodily aftlicadministration to the husband tion of an asthma, might still rebeing the point in issue, his next tain his manly firmness in resistof kin had prima facie the first ing impending destruction, parright to it; but there being a re- ticularly as, from his situation in siduary legatee, this right became life, he must have often faced superseded. The parties claim- death in various shapes. He was ing under this latter character therefore in no degree satisfied were not residuary legatees them- by the proofs in the cause that selves specifically, but merely de- the wife survived the husband, rivatively r om
and should therefore decree the They were, therefore, one step administration to his next of kin. further removed from the pro- In thus deciding the law, how. perty. The presumption of law ever, he did not mean to affirm was certainly always in favour of positively which of the two was the heir at law with regard to the survivor, but merely that there freehold, and equally so of the was not sufficient proof that it next of kin with regard to per- was the wife, to repel the presonal property; the statute of sumption of law that it was the distribution disposing of an intes- husband. The administration was tate's property amongst his next accordingly granted to the husrelatives, solely upon the pre- band's next of kin. sumption that such was his intention, unless the contrary should The Attorney-Generalv. Mills and be expressed. It was therefore Freeman. This was the second ar, incumbent upon the repre- gument before the Lord Chancel. sentatives of the wife, in this lor in this case, which came before case, to prove her survivorship, his Lordship in appeal from his as the party in whom the pro- Honour the Master of the Rolls. perty vested, and from whom, The point in argument was this : in consequence, they derived their a testator devised the residue of claim to it. He then entered into all his effects for the purposes of an examination of the facts in promoting the propagation of the evidence, and was of opinion, that Gospel in foreign parts, and in they were insuflicient to repel the England, for bringing up clergy. presumption of the husband's men as missionaries, and such having survived the wife, which other charitable purposes as he the court was bound to assume should thereafter by any codicil from the circumstance of their appoint. No such appointment, having been overwhelmed by one however, was made; and, therecommon calanity, and perished fore, the question was, whether, together; observing in particu- by the ancient rules of law, the lar, that though the wife might Crown could supply the appointbe very active and laborious in ment, by nominating some other her domestic duties, yet the na- charity to participate with the tural timidity of her sex might two which the testator had speciprevent exertion in the moment fied, so as to exclude his next of danger, whilst the husband, of kin. His Honour pronounced
a decree in favour of the lat- this omission, the court could not ter.
tell in what manner to act. He Sir Arthur Pigot now contend- submitted, however, that as the ed, that as the difference between testator named no other charities, legacies to charities, and legacies he meant to confine his bounty to individuals, had been recoge to the two which he had specinized for centuries, it was quite fied; by naming no others, it idle to contend that they were to was evident, that he had changed be governed by the same rule. his mind; and the two must He claimed, for the Attorney- either take the whole, or the General, all the principles on court would appoint another chawhich those cases had been de- rity to have a third. cided; he claimed the benefit of Mr. Leach, on the other side, them as part of the law of the contended, that as the testator land. Siderfin's case had esta- died without perfecting his gift, blished the rule of construction, no court could supply the uncerwhich the Court was bound to tainty. In Siderfin's case, the adopt. He knew the Court could testator had perfected his gift; not make a will for a man ; but and accordingly the court disthe Court must take it for grant- posed of his property to a charity, ed, that a testator knew the rules and excluded his next of kin. of law. In this instance, the tes- Upon the whole, if the prescat tator had devised to two chari- case were considered on the lanties, which he named, and others guage of the testator, it must be which he intended to add; but as evident that he meant to give to he neglected to specify the parti- certain specific charities, and havcular objects of his bounty, the ing neglected to name them, his rule was, that he had sufficiently next of kin were entitled. demonstrated a charitable pur- The Lord Chancellor said, that pose to enable the Court to act when he considered the weight of upon it. But then, it was asked, authority by which this case had in what proportions should the been decided, he felt the most property be distributed ? The anxious wish that he should not learned counsel was of opinion, be wrong in pronouncing his that if a testátor made a bequest judgment. When the first arguto the Foundling-hospital, the ment was concluded, his LordLying-in-hospital, and the Blue- ship had no difficulty in saying, his coat-school, in such proportions mind was still so assailed by scruas he should thereafter name, and ples, that he directed the second then die without naming the pro- argument, which he had heard portions, the court would give that day. He should have been the property in equal thirds. In glad if the case had been reheari the present case, the testator did hefore the Master of the Rolls; not name all the objects of his but as he was bound to discharitable purposes; but as he charge his duty, he meant to give had specified two, the want of judgment on Monday next, and nominating others could not de- was not quite satisfied that he stroy his intention. But it had ought to affirm the decree. In been said, that, in consequence of executing wills, the court was
bound to adopt such construc- to his views, or modified at itre tions as the rules of law prescrib- discretion of the court. In the ed; but the same words would present case, there was no doubt receive a different construction that the objects were legitimate, in the case of charities, from that but they were not definite. There which the law adopted in cases of were two sources of uncertainty individuals. A case more strongly and difficulty. In the first place, in point than that of Siderfin's the sunis or divisions of the procould not be cited. His Lordship perty, allotted to the different had formerly seen almost all the purposes, mentioned by the testaprivate papers in that cause, and tor, were not fixed ; and, in the though the testator's gift was not second place, all the objects for complete, as the note by which which it was destined, were not he intended to specify the objects specified. Neither of those cirof his bounty was not found, yet cumstances, however, could affect the court disposed of his property the decision of the court, in any to a charity, and excluded the question regarding the rights of the next of kin. The present case testator's next of kin. The will resolved itself into this : Did the here was pointed and definite. Itde. testator, looking at this clause in signated two objects for the behoof his will, intend to say, “I mean of which the property of the testo give to these two charities, and tator was destined,--the propasuch other charities as I shall gation of the Gospel in foreign name;" thereby declaring that parts, and the instruction of mishe gave to charities : or did the sionaries. The third was not clause mean this," Unless I specified, because the testator had name other charities, I mean not not, at the time he made it, deto give to charities at all?" termined what it should particu
His Lordship had now only to larly be ; but he had left no unsay, that with a mind formed to certainty with regard to its nasift and doubt, more than was ture ; namely, that it should be consistent with his own comfort, a charity. This third division of he would pay as much attention the property therefore was left as to the case as the human mind little at the disposal of the next could devote to any subject; he of kin, as if it had been actually had a severe and arduous duty to destined for the propagation of perform, and should always feel the Gospel, or any other definite the utmost pain in differing from end. His Lordship therefore gave persons on whose authority he it as his judgment, that the third placed a much greater value than proportion of the legacy should on his own.
neither be absorbed by the two The Lord Chancellor afterwards specific distinctions mentioned in gave judgment at great length, the will, nor revert to the natural and with a full explanation of heirs of the testator, but be dethe law upon the subject. His voted to such charitable purposes Lordship stated the cases, in as should be thought proper by which the property of a testator, the court; and that the master left for general purposes, might should point out such as might be carried into effect, acoording be beneficial.
MATRIMONIAL CAUSES. the family of the Earl of Moray. Fellowes, falsely called Stuart, By these means he succeeded in V. Stewart, otherwise Stuart.- This gaining Miss Fellowes's affections; was a proceeding at the instance but her mother positively refused of Miss Jane Fellowes, of St. her consent, from a dislike she Clement's Danes, describing her- had taken to Captain Stewart, self as falsely called Stuart, and which was so strong, that she dewife of William Dundas Stuart, clared she would not have him against Capt. Wm. Stewart, of herself if he was to offer, even Dorer, Kent, otherwise William though he should succeed to the Dundas Stuart, for nullity of a title and estates of which he marriage that had been had in boasted. The parties availed themeffect between them, on the selves, however, of a temporary ground of an undue publication absence of Miss Fellowes from of bans.
home to effect their purpose, The defendant was the son of a and a marriage accordingly took gentleman's servantin Edinburgh, place between them on the but who afterwards became a re- 30th of October, 1811, at Saint tail dealer there in spirits and to- Margaret's Westminster, in his bacco. He was born on the 15th assuined name of“ William Dunof September, 1783, and baptized das Stuart,” she being then but soon afterwards in Tron Kirk pa- 18 years of age, and he 28. The rish, Edinburgh, by the name of marriage took place in pursuance Wm. Stewart only. He was edu- of a publication of bans, effected eated at Heriot's Hospital, and at through the medium of Miss a suitable age apprenticed out by Elizabeth Myne Jones, a friend that institution, but disliking his of Miss Fellowes's. He gave her situation, left it for the army, and his name for this purpose, in the rose to his present rank of Cap- course of a morning's walk with tain. In the autumn of 1811, be- her and Miss Fellowes, as “ Wil. ing resident in Eaton-street, Pim- liam Douglas Dundas Stewart;" lico, he renewed an acquaintance and she, on her return home, he had formerly had with a Mrs. committed them to paper, and the Corbet of the Strand, a country- publication accordingly took place woman of his, by whom he was the first Sunday in those names. introduced to Miss Fellowes, who He afterwards, however, for some then resided in Nelson-square, reason, thought proper to call on Blackfriars-road. To this lady he the church officer, and representrepresented himself as the son of a ing this as an error, persuaded him gentleman of large landed pro- to omit the name of “ Douglas," perty in the county of Perth, and and the bans were, in consequence presumptive heir to the title and published the two following tịmes estates of the Right Hon. the Earl with his names as “ William Dunof Moray, in Scotland, and Baron das Stuart," instead. The mother Stuart, of Castle Stuart, in Eng- did not think proper to institute land. He also described himself by any proceedings to call the valithe names of “Wm. Dundas dity of the marriage in question Stuart," and assumed the arms of during her daughter's minority;