The Sun.
London, England, 1848-02-12 00:00:00

V.O tea 7Ztettion

CHANCERY.—(THIS DAY.)
The Lord Chancellor sat to-day in the Old Hall,
Lincoln's Inn, at eleven o'clock.

FORDYCE V. BRIDGES.-JUDGMENT.

The LORD CHANCELLOR gave judgment at great
length to-day on this case, which came before his
Lordship in Nov ember last, upon an appeal from the
decision of the present Master of the Rolls. The case,
which was stated by his Lordship to be one of perfect
novelty and great difficulty, has been in this court
since the year 1833, and the facts of it may be thus
stated :—The bill, which was filed by Alexander
Dingwall Fordyce in July, 1844, prayed that it might
be declared by the Court that a claim made in the year
1833 was not binding upon him. John Dingwall
being possessed of large real and personal estates
in Scotland and England, by a deed of entail in
the Scotch form settled his Scotch estates on his
grand nephew, John Dingwall, and on failure of
his issue, he limited the estates to the other branches
of his family in strict entail. On the lath of
January, 1808, he made his will, giving his English
estates to trustees, for the use of his grand nephew,
John Dingwall, with the usual remainder, in strict
settlement to his issue, and with remainder over strict
settlement to other branches of his family, on whom
he had settled his Scotch estates. And the testator
gave his residue and personal estate to the same
trustees, whom he appointed his executors in trust
to lay out the same in the purchase of lands in
England and Scotland, as they should think proper,
and to settle the lands purchased in England to the
same uses as his English estates were limited by his
will, and the lands purchased in Scotland in the same
manner as he had settled his Scotch estates. And
power was given to appoint new trustees who
were to has e the same discretion, power, and
privileges, as was given to the old trustees.
The testator died on the 28th of April, 1812. J.
Dingwall entered into possession of the English and
Scotch estates, and the executors proved the will and
administered the personal estate. They had in their
hands a large residuary personal estate to be laid out
under the trusts of the will, in lands in England or
Scotland. An unlimited discretion, in this respect,
was given to the trustees. After the testator's death
they laid out 172,4431. in the purchase of lands in
Scotland, and only a small stun in the purchase of
lands in England. For twenty years and upwards
the estates were enjoyed by the grand-nephew, during
whose life all the trustees died, the last survivor being
Alexander Croaibie, whose personal representative
became the trustee of the will. John Dingwall, the
grand-nephew, died in January, 1833, leaving an
only child, John Duff Dingwall, an infant, seventeen
years of age. There was at that time a large unin-
vested portion of the residuary personal estate. As
things then stood, John Duff Dingwall was entitled,
as tenant in tail of the estates purchased in England
and of the estates purchased in Scotland ; he was
the first heir substitute without power or alienation,
with remainder to other persons in succession. As
to the uninvested residue of the personal estate, J.
D. Dingwall was entitled to have it invested, and the
trusts of the will executed for the benefit of himself
and those entitled in succession, according to the
laws of the two countries respectively. He having
no guardian, and the representative of the lest sur-
viving trustees being desirous of being discharged
from the trusts, it became necessary to apply to the
Court. Accordingly a bill was filed on behalf of the
infant by his maternal grandfather. The bill alleged
that the trust had not been properly performed by the
trustees, who had invested a larger portion ci the
personal estate in lands in Scotland than they ought
to have done, and it asked for inquiries respecting
thi., and for investment of the rest of the personal
estate in lands in England, and for the appointment of
a guardian and new trustees. A. Dingwall Fordyce,
who was entitled as heir-substitute in remainder,
and as tenant for life under the will, was a party to the
suit, and in his answer he insisted that the purchases
had been properly made, and ought not to be disturbed.
In 1833 the cause was heard on bill and answer be-
fore Sir J. Leach, then Vice-Chancellor, and a
guardian was appointed, and the representative of this
last personal trustee was discharged from the trust,
and it was referred to the Master to approve of new
trustees; and it was declared that the residuary
personal estate, which had been brought into court,
ought to be invested in the purchase of real estates in
England, having regard to the purchases already
made ; and that the new trustees and guardian of the
infant were to be at liberty to lay proposals before
the Master on the investment of it. The plaintiff
alleged that this decree was not binding upon him, as
he was no party to the suit ; and that he ought to be
relieved from the effect of it. The proceedings were
carried on with notice to A. D. Fordyce, who died in
April, 1834; and a few days after his death the
Master made his report, from which it appeared that
the residuary estate was of large amount; that he
had approved of new trustees; but that no proposals
had been laid before him for investment in real estate.
By the order on further directions of the Ist of
June, 1834, it was referred to the Master
to approve of conveyance to the new trustees.
On the 15th of October, 1836, John D. Dingwall
attained 21, and he executed a disentailing deed, and
petitioned the Court for a transfer of the funds to hint,
which was ordered on 21st November. This order,
it was admitted, must follow the fa `e of the decree.
J. D. Dingwall died in October, 1840, without issue,
having, by his will, given all his real and personal
estate to the defendant, Sir Henry Bridges, who
proved his will. Arthur Dingwall Fordyce, the
elder brother of the plaintiff, having become the next
heir substitute, filed his bill to have it declared that
he was not bound by `-the decree. But he having
died, the present plaintiff then became heir-substitute,
and he filed this bill on the 22d July, 1844. The
Master of the Rolls, in giving judgment in the case,
which had been argued before him at great length,
said the first question was, whether the plaintiff was
bound by the decree? and if he was not, then, whe-
ther he had endeavoured to obtain relief in the proper
form. He was of opinion that he was not bound
by the decree, and that his interest was
material at the date of the decree, and was not pro-
perly protected, and that the bill was in a proper form.
The plaintiff did not seek to alter a decree made
against himself, or those under whom he claimed.
The testator had given a discretionary power to his
trustees, and he was of opinion that new trustees
might have been appointed with the sanction of the
Court, and that they would have had the same dis-
cretionary power as the original trustees. But the
power given to the trustees was such as the Court
ought not to have executed without the trustees. The
only person having legal authority to act as trustee
was discharged, and no provision was made for the
appointment of new trustees in the manner directed by
the will. The Court took upon itself to exercise a dis-
cretion which the testator intended to be exercised by
the trustees alone. He must, therefore, declare that the
plaintiff, and other persons interested after him, were not
bound by the decree. The defendant :oust pay the
funds into court, and if he did not adroit assets of J.
D. Dingwall, h,.0 must account in the usual way. And
he must also declare that the trustees were not pro-
perly appointed, and that 'Jew trustees ought now to
be appointed, according to the directions of the will.
And there must be an inquiry as to what part of the
funds transferral consisted of capital, and what of
interest. From this decision the defendant appealed
to this branch of the Court, and upon that appeal his
Lordship now gave judgment. The Lord Chancellor,
after going at considerable length into the case, st :ted
his opinion to be that it was impossible that
the decree in its present shape could stand. He
was of opinion that the parties were bound by the
decree of 1833 upon the merits ; that the discretionary
power given by the testator ceased to exist in 1833 ;
that the Court had no right to exercise it, and that
half of the surplus fund ought to have been invested
in lands in Scotland, and half in lands in England;
and that the plaintiff had the right to say that upon
the separation of the two estates the discretionary
power did not exist.

IN TDB MATTER OF UNIVERSITY COLLEGE, OXFORD

His LORDSHIP stated that it might be convenient to
parties in the country to know that he intended
giving judgment in this case on Wednesday next.

EXCHEQUER.--(THIS DAY.)
(Sittings before the LORD CIE BARON and Special

Juries.)

MAYOR AND BURGESSES OF ROCHESTIR V. LER AND

ANOTIIER.

This was an issue directed to be sued by the Vice-
Chancellor, for the purpose of ascertaining the
rights of the Corporation of Rochester to levy a toll
of 4d. per chaldron on all coals brought into that
port.
The Attorney-General, Mr. Martin, Mr. Peters-
dorff, and Mr. Lewis for the plaintiff.
Sir F. Thesiger, Sergeant Shee, Mr. Deedes, and
Mr. Bovill for the defendants.
The ATTORNEY-GENERAL, in opening the case,
stated the Corporation of Rochester had been en
titled from a period beyond that of legal memory to
receive the tolls upon all coals brought by water into
the port of Rochester. The city and port of Roches-
ter had been incorporated before the reign of Richard
rI. The corporation were by prescription owners of