Governors of Stephen's Hospital Dublin v Swan

• Jurisdiction: Ireland
• Judgment Date: 27 March 1760
• Date: 27 March 1760
• Court: House of Lords (Ireland)

English Reports Citation: 2 E.R. 776

House of Lords

The Governors of Stephen's Hospital, Dublin

-Appellants

Daniel Swan

-Respondent

5 Bro. P. C. 446, 456

verown. stephen's hospital v. swan [1760] case 11.-The Governors of stephen's Hospital, Dublin,-Appellants ; daniel swan,-Respondent [27th March 1760]. On a bill brought to recover the estate of a person deceased, upon the allegation of his being a papist, and therefore unable to devise; the Court directed an issue to try whether he was at any, and at what time or times (distinguishing the times respectively) a papist, or person professing the popish religion. But on an appeal, the decree was reversed, and the bill dismissed. decree of the Irish Chancery reversed. It appears that the weight of evidence in favour of the Appellants, as to the fact of the deceased's being a protestant, was so strong, that the Court of Chancery were by no means justified in directing an issue; which is not on all occasions to be granted merely on the asking for; but the plaintiff may seek his remedy at law. See post, ca. 13, 14 [5 Bro. P. C. 446, 456]. Edward Cusack, who lived to a great age, was born of protestant parents. He had one brother and four sisters, who were all protestants. He was bred up by his father as a protestant till he was about five or six years old, when his father died. At 13 or 14 years of age, he was placed out apprentice to his uncle Joseph Fenton, a tanner in Dublin, who was likewise, as well as all his family, a protestant. To this uncle-and one Joseph Rabo, who was likewise a protestant, he served his apprenticeship. In 1703, he married Mrs. Ledwidge his first wife, who was a protestant. He lived many years at the town of Athboy, where, as well as elsewhere, he was a constant communicant at the sacrament, when administered in the parish church, till his death; particularly so long since, as in the years 1705, 1707, and 1708. Being bred a tanner, he went through and served all offices in the corporation of tanners, first as warden, and afterwards as master. In 1712, he was admitted to the freedom of the city of Dublin, to- which none but protestants are ever admitted, and took the several oaths required upon that occasion. After the death of his first wife, he married Diana Bunbury, his second wife, who was also a protestant of the established church, as well as her parents. In a word, he was born, bred, lived, and died a protestant, and was a religious observer of his duty at church, and a constant [430] communicant with both his wives, at the sacrament at his parish church in the town of Athboy and ,St. James's in Dublin, the different places of his residence during his whole life, which was extended to a period of about 70 years. The appellants, the governors of the hospital, were incorporated by act of parliament passed in Ireland, 3 George II. by which the corporation was to consist of the Lord Primate, Lord Chancellor, Archbishop of Dublin, Bishop of Clogher, Chancellor of the Exchequer, and the Lords Chief Justices and Lord Chief Baron, all for the time being, and several other respectable persons, with liberty to purchase or take any lands and hereditaments, not exceeding £2000 per ann. of the alienation, gift, or devise of any persons having a right, and not being otherwise disabled, to alien, grant, or devise the same, as well for the finishing the building of the said hospital, as for the relief, support, and maintenance of the sick and wounded persons to be placed therein. Edward Cusack made his will, dated the 23d of June 1753, by which (after1 directing his body to be buried in the church-yard of Athboy, and giving two guineas to the minister who should read the funeral service) he gave to John Hopkins esq. all his lands and hereditaments, and all other his estate real and personal, leases for lives and years, and other effects, subject to the payment of his just debts and funeral charges, upon trust, to stand seised and possessed thereof, for the use of such child of his body as should he living at his death. And if he should die without leaving issue living at his de^th, or born in due time afterwards, or if such child or children, should die before 21, without leaving issue of their bodies, then in trust to permit his wife Diana Cusack to dispose of £200 of his personal estate to whom she pleased ; and also to permit her to receive the clear rents and profits of all his estate and fortune during her life: and after her decease, in trust and for the use of the appellants, the governors of the hospital, for the use and benefit of the hospital for ever. The testator then devised to Henry Cusack, son of his brother William Cusack, 776 stephen's hospital v. swan [1760] v brown. an annuity of £20 during his life; and to the appellants the minister and churchwardens of the parish of Athboy, and their successors, the yearly sum. of £10 sterling, to be issuing out of his lands in Castletown, during so long time as his lease thereof from Richard Vincent esq. should subsist, to be by them applied for putting out the children of the said parish apprentices. And he appointed his wife Diana Cusack sole executrix in trust of his said will. On the 1st of October 1754 the testator died without issue, leaving Diana Cusack his widow and executrix, who survived him, and proved his will. In a few days after his death a bill was exhibited in the Court of Chancery in Ireland, in the name of the respondent, as a protestant discoverer, against Diana, Cusack, the widow and executrix, the appellants the governors of the hospital, as devisees of the testator's estates in trust for the charitable purposes aforesaid, [431j expectant on the death of Diana Cusack, his Majesty's Attorney General of Ireland, the appellants the minister and churchwardens of the parish of...