John Archbold, - Appellant; The Commissioners of Charitable Donations and Bequests for Ireland, - Respondents

• Jurisdiction: Ireland
• Judgment Date: 26 April 1849
• Date: 26 April 1849
• Court: House of Lords (Ireland)

English Reports Citation: 9 E.R. 1159

House of Lords

John Archbold

-Appellant

The Commissioners of Charitable Donations and Bequests for Ireland

-Respondents

Mews' Dig. iii. 259; vi. 802; xiv. 583. S.C, in C., 11 Ir. Ch. R. 187. Adopted on point as to allegation of fraud, in Hickson v. Lombard, 1866, L.R. 1 H.L. 331.

Charity - Trustee - Statute - Jurisdiction - Pleading.

[440] JOHN ARCHBOLD,-Appellant; THE COMMISSIONERS OF CHARITABLE DONATIONS AND BEQUESTS FOR IRELAND-Respondents [April 24, 26, 1849]. [Mews' Dig. iii. 259; vi. 802; xiv. 583. S.C., in Ch., 11 Ir. Ch. R. 187. Adopted on point as to allegation of fraud, in Hickson v. Lombard, 1866, L.R. 1 H.L. 331.] Charity-Trustee-Statute-Jurisdiction-Pleading. By the Act 7 and 8 Viet., c. 97, the power of the Commissioners of Charitable Donations and Bequests for Ireland to sue for the recovery of such donations and bequests, is expressly limited to cases where they are withheld, concealed, or misapplied; and the same, when recovered by the Commissioners, are to be, by themselves, applied to charitable uses, according to the donor's intention. And, although they obtain the sanction of the Attorney-General to their suit, as required by the said act, they must maintain it according to the power of suing thereby given to them, and are not entitled to the general jurisdiction which the Court exercises in suits instituted by the Attorney-General. A decree, therefore, made at the suit of the Commissioners, first, removing a testamentary trustee of a charity, on the grounds of his bankruptcy and residence abroad, but without proof of any improper witholding, or concealment, or misapplication of the trust property; and, secondly, directing the appointment of another trustee in his place, is wholly wrong. Semble, that neither bankruptcy, nor occasional residence abroad, disqualifies a testamentary trustee, to whom the testator has, unconditionally, confided a large personal discretion in the administration of the trusts, together with power to appoint a receiver of the rents of the trust estates. Where the fact of bankruptcy is not put in issue by the bill, evidence of it is not admissible at the hearing of the cause. If a bill alleges fraud, which is not proved, and also alleges other matters, which, being proved, are grounds for a decree, the proper course is to dismiss so much of the bill as is not proved, and to give so much relief, under the circumstances, as the plaintiff may be entitled to. (Infra, p. 460.) This was an appeal against a decree of the present Lord Chancellor of Ireland (11 Irish Equity Reports, 187). [441] Mathew Shee, late of the city of Waterford, by his will, dated the 25th of May, 1832, after giving to his wife Elizabeth Shee, among other things, all his interest in certain houses in the said city, devised and bequeathed to her, for her life, several towns and lands in the will described, situated in the counties of Waterford, Kilkenny, and Wexford, subject to head rents and to the payment of two life annuities of 20 each, and a sum of 50: And after the decease of his said wife, he devised and bequeathed the said several towns and lands to John Archbold (the appellant), of Waterford, his heirs, executors, administrators and assigns, upon trust, that he and they should, as soon as conveniently might be after the decease of the testator's wife, procure, on lease or otherwise, as he or they might think most advantageous, one or more house or houses adjoining each other, in the city of Waterford, or the environs 1159 II H.L.C., 442 ARCHBOLD V. COMMS. OF CHAE. BEQUESTS FOR IRELAND [1849] thereof, sufficiently large to lodge therein twenty poor men and twenty poor women, of sober and reputable character and habits; and on the .death or removal of them, or any of them, to fill up their places with persons of a similar description; and to pay each of them every year, by two half yearly payments, the sum of 4 sterling ; but if the rents or produce of the said towns, lands, and premises, so devised for the purposes aforesaid, should not be found sufficient to pay the said annual sum, then that the said J. Archbold should have full power to dismiss any number of the said men and women, and to limit the admissions so as to be enabled to meet the diminished rents and income of the said devised lands, or at the discretion of him, J. Archbold, his heirs, executors, etc., to abate rateably, in equal proportions, the said annual sums so payable to each of the said twenty [442] men and women, or such number thereof as he, his heirs, executors, etc., should think proper to retain or admit; it being, however, the will and desire of the testator that no greater reduction in the number of persons so retained or admitted should at any time thereafter be suffered to take place than would be annually found necessary, so as to afford, in the distribution of the annual income arising out of the rents and profits to each and every of the persons so admitted or retained, at least a sum of 3 sterling, annually, payable as aforesaid, and above the rents and other necessary charges. And the testator declared it to be his will, that the said trustee, his heirs, executors, etc., should not be liable for any loss that might happen relating to the trust, unless the same happened by his or their wilful neglect or default: And he gave them power to grant leases of any of the devised lands for twenty-one years in possession, at the full improved rent, without fines, and to apply parts of the rents and profits to repairs and improvements, and other necessary charges, and also to appoint a receiver of the rents, at such reasonable salary as they might deem proper ; " giving to the said trustee, and to his heirs, executors, etc., power to use his or their own discretion in the management of the said charity, as to such matters and things as he had not particularized herein, always keeping in view the exclusive interest and benefit of the said charity, and of the poor people to be maintained and lodged therein." The testator died in 1832, soon after the date of his will, and his widow, whom he appointed sole executrix, took out probate thereof in the same year, and entered into the receipt of the rents of the devised lands and premises. [443] Mr. Archbold had been at, and previous to the testator's death, one of the directors of the Provincial Bank in Waterford, and bore a, very respectable character in that city; but in the year 1834 he withdrew from the Bank at Waterford, and, a defalcation to a large amount having been discovered in the Bank funds, he was arrested on a charge, brought against him on account of the deficiency, but. was discharged, and no further proceeding was taken against him. He resided on the continent from 1834 until, on the death of Mrs Shee, the widow of the testator, in December 1844, when the devise became available for the charity, he returned to Waterford, for the purpose of entering on his duties of trustee under the said will. He accordingly took on himself the management of the trust property,-which then produced a rental of about 870, subject to 70 head rent,-got possession of the title deeds, and appointed a receiver of the rents, but did not take any effectual steps to establish the charitable institution by the will directed. In the course of the year 1845, in consequence of complaints made by some of the citizens of Waterford, the Commissioners of Charitable Donations and Bequests for Ireland, appointed under the act 7 and 8 Viet., c. 97, caused a letter to be written by their secretary, requiring the appellant to inform them what steps he had taken towards execution of the trusts of the said will, and to furnish them with accounts of his receipts and disbursements in respect thereof. Several interviews took place subsequently in the same year, between the secretary and the appellant., in the course of which the letter alleged, as a reason for not having founded the charitable institution, that he sought, but did not find, suitable premises for the purpose in Waterford. He [444] also made proposals to the respondents, the purport of which was, as they understood them, to secure a promise of some situation for himself, as a condition of resigning the charity trusts into their hands, intimating at the same time that it was in his power to pervert the charity to political purposes. In April 1846, the respondents, with consent of the Attorney General, filed their 1160 ARCHBOLD V. COMMS. OF CHAR. BEQUESTS FOR IRELAND [1849] II H.L.C., 445 bill against the appellant,* therein stating, among other things, the said will, and charging that upon the decease of Mrs. Shee, the testator's widow, the devised lands became available for the charitable purposes in the will mentioned, and the appellant became bound as trustee to carry into execution the charitable trusts thereby declared, but that instead of doing so, he altogether neglected his duties as such trustee. The bill further charged, that in the year 1834, the appellant, being dismissed from his situation of Director of the Provincial Bank of Waterford, and being [445] greatly embarrassed in his affairs, absconded from Ireland, and had since resided abroad, out of the jurisdiction; that although he returned to Ireland on the death of Mrs. Shee, he took no steps to establish the said charitable institution, but...