VI1 W.L.C., 124 WHICKER v.

HUME [lSSS]

Lord Wensleydale.-But the second Appellant is the person who ought t o bear
the burden of that.
Lord St. Leonards.-We cannot enter into their respective merits. I think the
behter way will be to say that there shall be no costs; it is hardly possible to do
justice otherwise.
The Attorney-General.-Our appeal was first. I do not desire to ask anything,
but what is in conformity with what I understood fell from your Lordships with
regard to the Appellant’s costs, that he would be entitled to his costs out of the residue.
Lord St. Leonards.-Your appeal was against the intention of the testator, and
after the decision in favour of that intention.
Lord Wensleyda1ei.-Certainly the Appeal was brought upon very fair grounds.
The arguments which have been now used in support of the decree are not those
which were used in support of it when it was made.
The Attorney-General.-If one set of costs should be given, of course the Re-
spondents will take their costs out of the estate.
Lord St. Leonards.-No costs are given.
Lord Wensleydale.-I should rather have thought that it would be right to give
one set of costs, to be divided between the two parties.
Sir Richard Bethell.-If your Lordships give one set of costs to the Appellants,
you must dismiss the second Appeal with costs.
[I241 The Lord Chancellor (after consultation with the other Lords): It is the
opinion of their Lordships that there should be no costs.
Decree affirmed without costs. Lords’ Journals, 15 July.

WALTER G. WHIC PH HUME and others,-Respondents

16, 18581.
[Wews’ Dig. i. 108; iii. 3 443, 462, 506; viii. 233, 247, 273; xv.
. 28 L.J. Ch. 396; 4 Jur. N.S. 933;
and, below, 1 De G. 1 L.J. Ch. 406; 16 Jur. 391; 14 Beav.
509. On point (i.) as to effect n t of probate, adopted in Bradford v.
Young, 1884, 26 Ch. D. 667; D v. Concha, 1885-86, 29 Ch. D. 300; 11
A.C. 551 (Concha v. Comha), and I n re Patience, 1885, 29 Ch. D. 981 ; (ii.)
as to Mortmain Act, approved in Jex P. M’Kinney, 1889, 14 A.C. 7 7 ; and
Canterbury (Mayor, etc., o f ) v. W y b u r n (1895), A.C. 89 ; (iii.) as to charitable
bequest, cited in Beaumont v. Oliueira, 1868-69 L.R. 6 Eq. 537 ;L.R. 4 Ch. 314 ;
(iv.) as to change of domicile, see Moorhouse v. Lord 1863, 10 H.L.C. 283 ; and
Douglas v. Dougbs, 1871, L.R. 12 Eq. 617.1
Domicile-Probate-Mortmain Act-New South Wales-Practice-LL Advancement
and Propgatiolz of Education.”
A will must be executed according to the law of the country where the testator was
domiciled at the time of his death.
The grant of probate not appealed against, oonclusively established that it was
so executed.
A. was born in Scotland: when a young man he went to the East Indies, where
he remained above 20 years in the Company’s service: he then returned
to Scotland and lived in Edinburgh, where he putz his name on the books
of the municipality, married, took a house, entered into business as a partner
in a banking-house, and became a member of various societies there established.
At the end of a few years he left Edinburgh in anger, the banking business had
come to an end, and he took off his name from the books of the municipality
and of the various societies, and declared his intention never to return to
“ Auld Reekie ” : he lived in London, first in lodgings, and then i n houses
hired f o r different periods, lectured on Oriental literature, and endeavoured
thereby to increase the sale of some books which he had written on the
Hindostanee language. At the end of some years he went to Paris to avoid
50
 some annoyances i n London, but never made any such declarations with
respect to London that he had made with respect t~ Edinburgh, and he
left his works in London, and likewise! some o r n a m e n ~ lf u m i t u r ~which
he desired a friend to keep for him till his “return.” He died in Paris,
having just before made a will in the English form:
Eeld, that he had lost his Scoteh, and obtained an English, domicile.
Cl251 The Mortmain Act, 9 G ~ Q2,. 36, does not extend to New South Wales.
The 9 Geo. 4, c. 83, s. 24, refers to the laws regulating the administration of
justim i n the courts of Bew South Walefi, and not to the general law of the
colony.
A testator gave to trmtees funds to be applied by them ‘‘ according to their
discretion for the advancement and propagation of education and learning
all over the world :”
Beld, that this was a valid c ~ r i t a b l bequest,
e and vas not void for uncertain~~y.
John Bay Gifchrist, was born in Edinburgh, i n June; 1159. In 1775 he went to
the West fndias, r e ~ a i n e dthere two years, and then returned to E d i n ~ u r ~In ~.
1782 ha went to the East Indies and entered into the Company’s service. He acted
ab first,as a surgeon ;but afterwards devoted himself to the study of the Hindwtanee
and Persian languages, and was a~poiiitedto give lessons in them to the junior
civil servant8 of the Company. On the e s t a b l i s h ~ of t College of Fort William
~ ~the
in Calcutta, he was appointed Profewor of Hindoshnea there, and hdd that
appoin~menttill 1804, when he resigned i t and came to England, his then intention
being merely to recruit his health. Be never ret-umed to India. Be received a
pension from the Company for past services. In 1804 he presented to Gwrge
Heriot’s Hospital, Edinburgh, the sum of 2100 “ as a small testimony of gratitude
for his edueatsion there? S e got himself admitted a- burgess and guild brother
of the city, had his armorial bearings recorded in the o&ce of Lyon King of Arms,
obtained a diploma of the Company of James VI., and in 1804 embarked in the
wbolesale linen trade a t Edinburgh. During all this time, howevers his principal
actual residence w a ~in the n e i g ~ ~ u r h o oofd London. Ha busied himself about
literature, and on the 22nd February 1806, was appointed Professor of Oriental
Languages at Baileybury, but resigned that appointment a. few [126f months after-
wards. ~ l a i m ~ ntog be connected with the noble Sootck family of Borthwick, ha
obtained a licence under the sign manual t o use the name of Bo&wick, i n addition
t o his own, and procured a grant of arms from the Heralds’ College, in which he
was described as “John Borthwick Gilchristi, of Camberwell, in %&e munty of
Surrey, Doctor of Laws, Late Professor of the B i n d ~ s t a n elanguage
~ in the College
of Fo& William, a t Calcutta.” In the latter end of 1806 he went ko E d i n ~ u ~ h ,
enrolled his name on the books of the municipality, and entered into business
as a banker, with J a r ~ e sInglis, for 14 years, tn> commence from 1 January 1807,
w i t h a pmviso, that either party might dissolve the partn~rshipat thc end of hhe
seventh year. I n 1808 ha married a Scotch lady, and had a residence in Nicholson-
square, and became a member of several societtias established in Edinburgh. In
1815 the banking partnership, which was not succmsful, was dissolved, as from the!
30th June of that yew. I n June 1817, on account of some real OF supposed affront,
he quitted Edinburgh and eanm to London. In 1818 he again obtained from the
East India Company tka a p p o i n t m ~ tof professor and lecturer in Hindostmee.
These labours in teaching Oriental languages Bad for their chief object to sell
his books on that subject, which had always remained in London, This continued
till the 20th June 1825, during the courxe of which time he wrote letters declaring
his intention n0ver to see. “Auld Reekie again,” and, speaking on ocoasion of a
p a ~ i c u l amattw
~ which had otxurred in Edinburgh, he described it as a blowii

which dissolution cannot efface fmm a conscious retrospective mind, wherever it

may wing its flight, and one that impels me to disown and deny niy country as a
r ,whom, since my return after a long a.bsence, I owe noughe
hyrann~cal~ 0 p ~ o t h eto
save the deepesb disgust.” Be sold his house a t Edinburgh, and most of his furniture;
but brought the rmt to London; be likewise removed his [I271 name from the books
of the municipality and from the various societies of which he had previously
become a member. He visited ~ d i n ~ u ronce g ~ or
~ twice aft~rwardsduring the
51
VI1 H.L.C., 128 W H 1 ~ ~
‘U. ~EUME
R [1858f
life of his mother, and niemorialised the sheriff depute and the inhabitants of
Nicholson-square to have the name changed into Borthwick-square, but he was un-
successful in this object, and he never expressed any i n ~ n t i o nof ~eturningto reside
in Edinburgh, I n 1826 he took part in Bstablishing the University of London,
became a proprietor of shares therein, and accepted the office of professor of
, resigned that oEce in 1828, and h a m e a
~ ~ n d o s t a n etoe the ~ n i v ~ r s j t ybut
private lecturer on Oriental language. In 1833 he set up in London a newspaper,
which failed; and in January 1834 he executed in London, a will according to the
English forms. Re had in the meantime paid some short visits to the continent,
but in May 1834 he went to reside near Paris; and befom going, wrote 8 letter,
in which he said his reason for going to tkf: continent was, that he was unwilling
prematurely to expose either his wife or himself to those annoyances in the metropolis,
where f o r six months they had both suffered severely in h d y and mind, also to say
nothing of his purse, which his arch enemy was determined to sink to the lowest ebb,
to torment him while labouring under a complication of evils, and one of them a
dangerous disease, “ when he was very far from having yet escaped, and that to
flee froin similar visitations in future, was the, grand object of his wish, and he
had requested his kind helpmate to cross the Charnel once more in search of
that tranquillity which he could not expect in his own country, while beset as
he had been by needy and greedy blood relations, dl sighing for his deat-h.”
In July 1837 he took a residence, with coach-house and stables, at Paris, on
lease for three, six, o r nine years, [128] determinable, on six months’ notice given
before the expiration of the three or the six years. The lease also contained the
following proviso, not to assign “ ia whole or in part without the consent, in writing,
of the lessor. Only i n the case of unforeseen events which shall force the lessee
to quit Paris, or in another case also unforeswn, the interests of his family, the
house may be let conjointly by the lessor and the lessee, the latter ~ e ~ ~ n i n g
responsible for the rent; o r even the present lease may be c~ncelleda t the end of
six months’ notice after one year of holding; and provided that the hiring shaU
only cease in the month of January.” I n 1840, being in London, he instructed
his solicitor to prepare a will for him, which was a ~ r d i n g ~ done
y in the c o r n o n
form, and sent to Paris, but before its arrival there, Mr. Lawson, an English
solicitor, practising a t Paris, had prepared another. On the arrival of the English
will, a codicil was added by Mr. Lawson, and the will and codicil were twth executed
on the 8th December 1840. The description of the testator inserted in the mill was,
“ J. B. Gilchrist, of the1 city of Edinburgh, but now residing at 10, Bue Mategnon,
in the city of Paris.” At the time of making his will, he was possessed of the follow-
ing property :---A freehold estate, at Sydney, New South Wales; a freehold Bat, or
floor, in Hunter-street, ~ d i n b ~;r100 g ~shares
~ in the Commerc~alBank of Scotland,
valued a t 217,450; m d 22000 cspital stock of the Bank of England; household
furniture in Paris; and 5842 copies of his Oriental works, and some ornamental
furniture, which were in London, the last having been expressly left with friends
to keep till his “ return ” to London.
The will gave to his wife his household goods, furniture and plate, linen, glass,
china, carriage, horse8, jewels, trinkets, wines, etc., and money i n his house for
her abs~[l29~-lute use and benefit. And his estate at Sydney and in Edinburgh,
and all his residuary, real and personal estate, he gave to Joseph Hume, Esq., M.P. ;
Charles Holland, Esq., K D . ; John Macgregor, Esq., one of the Swretaries of the
Board of Trade; and John Bomring, Esq., LL.D. (all of London); and Bobert
Veritz, Esq., M.D., of Paris, physician to the British embassy there, OR trust to
convert the same into money, and to invest the produce (but so that it might btj
disposed of to charitable purposes), on trust to pay certain annuities, and then
on such trusts as by any codicil he might direct. By the codicil he directed and
appointed “ t h a t the trustees or trustee for the tinie being, shall stand possessed
of, and interested in, the rwidue or surplus of the trust monies, stocks, funds, and
securities thereby tu them beq~ieathedin trust. Upon trxst, to aLpplyand appropriate
the same in such manner as they, my said trustees o r trustee, shall in their absolute
and unmntrolled discretion think proper and expedient, f w the Fenefit, and ad-
vamememt, and propagation of education. and learning in. every part of the world,
as for as eir~umstancesmill pennit.”
52
 WHICKER 27. ~U~~ f18581 VIZ H.L.C., 130

The testator died a t Paris on the 8th January 1841, and on the 13th January
the will and codicil were proved by all the exemtors except Dr. Veri& in the Pre-
rogative Courti of Cante~bury. I n August 1841 they were duly regisbred and con-
firmed in Scotland.
On the 30th July 1841 the Appellant, as heir-at-lsw and one of the next of kin
of the testator, filed his bill (which was afterwards amended) in Chancery against
the executors (and other necessary parties), and the Attorney-General, alleging that,
by the law of Scotland, the real &ate of the testator did not pass by the will and
codicil, that the real estate at New Sotuth Wales did not pass [I301 thereby, but that
all the real estate, after satisfying lawful charges thereon, belonged to the heir-at-
law; that the trus& thereof were inoperative ancl void; that the residuary wta% was
undisposed of, and that, subject to the debts of the testator, the same by the law
of the testatar's domicile, belonged to his ne& of kin (exclusive of the widow's
interest) and he prayed f o r a declaration accordingly, and f o r an account.
In November 1842, the executors filed their bill, praying that it might be
declared that the will was well proved, and that the trusts thereof ought to be
carried into eEwt.
By an order of the Court made in both causes, in January 1843, it was referred
to Master Richards to inquire where the testator was domiciled a t the time of his
death, and who were his heir-atrlaw and next of kin. In December 1844, the1 Master
reported, that the Appellant was his heir-at-law, and that certain other persons
were his next of bin; and in Novembelr 1849 he made a farther report, by which
he found that the testator was domiciled in London.
The Appe~lantexcepted tch this report, insisting that it ought t o have been found,
tha&the domicile was either Scotch or French. The exceptions were overxuled by
Lord Langdale (January 1851) (13 Beav. 366). The cause WM heard before S i r
John Ramilly, who (April 30, 1861) declared the' will to contain a good charitable
bequest, and decreed accordingly (14 Bew. 509). The\ case was taken on appeal
before the Lords Justices, and the decree of the Master of the Rolls affirmed (1 De G.
Macn. and Gord. 506). The prment appeal was then brought against both these
decrees.
[I311 Mr. Rolt and Mr. Greene (Mr. Morris and Xr- Springall Thompson were
with them) for the; Appellant.---!Phere is. not in this case, aa in F o d e s v. Forbes (1
Kaye, 341), any d i ~ c u l t yupon the queetion of domicile arising from two, rwidences
having been occupied a t the same time by the testator. Here his domicile was French
by virtue of residence at the time of his death, o r i t was Sco,tch as his domicile of
origin. The Appellant contends that it was Scotch. That domicile of origin was not
changed facto et ~ ~ both ~of which~ must 0 be ,conjoin^ to produce such a result:
Dalhousie v. .@'Dozcall ('7 Glark and Fin. SlCr), Mzcwo v. Mwwo (S.842); and a man
cannot be said to have lost one domicile till he has adopted another, ~ o ~ r v,v ~ ~ e
~ o ~ e ~(5v Ves. ~ e This. is the result of the cases wlle&d on this subject in
~ l 750).
" PhiIlimore on Domicile " (p. 100, e t seq.).
[Lord Wensleydale: Is it open to you to argue the question of domicile in this
case; after the grant of probate?]
It is. The first order made in this case by the Xaster of the 1;Eolls was a direction
for an inquiry what was the domicile of the testator a t the time of his death. That
order was never appealed against, but the inquiry waa entered upon and a report
made, and the c a n f i ~ a t i o nof that report. on the Master's finding, is the first subj%t
of this appeal.
[Lord Wensleydale: But is not the grant of probate conclusive i m rem upon the
question of domicile?]
It is not. The grant of probate is conclusive tts to nothing except that a par-
ticular person is entitled to bear the [132f chai-actcr of executor, Tkornton V. l;r2C&&y
(8 Sim. 310), where; Lord Eldon considered himself at liberty @ exmine into the
question of the domicile. "here may be a power created, giving A. authority $0
make a will. A. executes some paper; the EccIesiastical Court admits that paper to
probate; so far it appears to be a will; but a court of construction may afterwards
say, that there has not been a due execution of the: power, and that the paper is not,
in law, a will a t all. Again: a married woman "a7 make a will, and the person
named as executor may obtain probate in the; EccleBiastical Court, but in the Court
53
VI1 H.L.C., 133 WHICKER v. HUME [1858]
of Chancery, a court of construction, it may be shown that, the1 will is the1 will of a
married woman who had no special power reserved to her to make it, and then the
executor, who has obtained the probate and the property in virtue of that probate,
will hold it as a trustee for the person lawfully entitled. The decision of the Court
of Probate and that of a court of construction may be the same, but they may also be
opposed to each other. The former is not binding on the latter.
[Lord Wensleydale: Do you find any authority for that except the dicta of Lord
Eldon in Thornton v. Curling? Can you question the validity of this instrument
anywhere except in the, Ecclesiastical Court? The question of domicile was open t o
you therel. Probate would not have been granted, unless the will was in the form
required by the law of the1 domicile : Stanley v. Bernes (3 Hag. Ecc. Rep. 373).]
That was a case which arose whelre there were two residences and it was doubtful
which was the testator’s domicile, and where he had executed a will and codicils
both in the Portuguese and the English forms.
[The Lord Chancellor: The case of Bremer v. Free-[133]-man. (10 Moo. P. C.
C. 306) decided that the maxim, rMobilia sequuntur personam, is park of the jus
gentium, and, therefore, that the post mortuary distribution of the effects of a
deceased person must be made according to the law of his domicile1 a t the1 time of
his death ; and, consequently, if the law of the country allowed the deceased to make
a will, that will must be made as that law required.]
But there is no legal title conferred by such a document which can prevail
everywhere and for all purposes. Here the executors had t o 1go to Scotland to get
a confirmation of their title with respect to the property there. The Ecclesiastical
Court may decide who is entitled to administer the estate, but other courts will have
to decide in what way the property is t o be dealt with. Where a probate is granted
by one court, as on a single domicile, the grant cannot conclude all other courts for
all purposes whatever.
[Lord Weasleydale: For any other purpose with respect to a claim under the
will.]
Then, as to the construction of the! will; first, the will and codicil, supposing
them to be unimpeachable in all other respects, did not have the effect of passing
the freehold lands. By the will the testator directed his lands to be sold, and the
produce to be invested and disposed of as he should direct by his codicil. Now, the
codicil contains no words which affect freehold lands, the testator speaks only of the
“ trust monies, stocks, funds, and securities bequeathed ”- by his will ; he never
mentions lands. Yet he well knew the1 meaning of the words het employed, for, in
his will, when speaking of his lands and his personal property, he uses the words
properly applicable to these two things, and says, “ devise and bequeath.” [I343
He has- himself, therefore, made a marked distinction between these two sorts of
property, and the Court cannot by mere implication attribute to him an intention
which the words he has used negative. The lands, therefore, have not been disposed
of, Roe v. Walker, where this point was, in fact, thus decided, though, from the
erroneous omission of the word “ n o t ” from the marginal note it appears t o be
decided the1 other way (3 Bos. and Pul. 375. The mistake exists in the 8vo. Ed. 1826,
but not in the folio Ed. 1804).
[Lord Wensleydale: The trustees are to sell the land and invest the produce for
the purposes of the trust; and then the codicil directs that they shall dispose of
the “ trust monies, stocks, funds, and securities.”]
The land at New South Wales cannot pass by this will. Assuming that the land
is disposed of by the, words used in the will and codicil, then the devisle as to the
land there is void, f o r it is a devise of land to charity, and is void under the Mort-
main Act (9 Geo. 2, c. 36). It is a settled principle of colonial law, that in a country
peopled from England, the law of England is in force there,: Blackstone (1 B1. Corn.
107. See this subject considered, Clark’s Summary of Colonial Law, p. 7, et sep.
and 53, 54). It will be said that the Mortmain Act is not in force in New South
Wales, first, as a matter of fact, because it has not been adopted by the local legis-
lature there, as stated in an affidavit of Mr. Robert Lowe, formerly a barrister,
practising in the colony; and next, as a matter of law, because, it is not applicable
to the condition of things in the colony; and the1 case of the Attorney-General V.
Stewart (2 Mer. 143) decided by Sir W. Grant, will be relied on t o show that, under
54
 R [l858]
W ~ I ~ Kw. ~HEXGXE VI1 H.L,C., 135

such circumstances, a statutory law of England does not apply to a colony. It is

desired to bring the authority of that case under the review of this House. In that
case [1135]Sir W. Grant founds his judgment on this reasoning, that the Mortmain
Act was passed in this country on account of circumstances of a peculiar character;
that those circumstances did not exist in the colony of Greaada, as to which he
, consequent~ythe ground for the applicability of the
was then a d j u d i ~ a t ~ n gand
statute did not exist. That reasoning is fallacious.
The actual mischief which occasioned the Act in this count.ry might not yet have
come into activity, but the same1 causes which gave rise to it really exist in the
colony as they did eirist in England, and the1 reason for having such a statute is the;
same in both places. If a case of this kind arose, the Courts in New South Wales
would, no doubt, therefore a&once declare its applicability as they haye the power
to do under the 9 Geo. 4, c. 83.” Besides. the case of A ~ ~ ~ ~ e y - Gv.e Stewart ~~ral
applies only to coIonias governed by foreign laws ; it relates to Grenada, which was
governed by the French law, having been conquered from the French in 1763, but
it cannot apply to New South Wales, which is a colony planted by [136] En~lishmen,
and in all such colonies the English laws aiel immediately in force.
[The Lord Chancellor: Grenada was formerly a French island, b u t after its con-
quest the English laws were introduced there.]
The will is void for uncertainty. The Crown has nothing t o do with the matter,
f o r here is a distinct trust, to be carried into effect by known trustees. Where; there
are conjunctive words, denoting several matters which may o r may not be properly
described as trusts, the words must be! disjo-ineid, in order to test what mould be1 the
power of the trustees in execution of the supposed trust. If that is done here,
there will not be found any trust that the law can recognise as of a charitable
nature. The funds are placed in tho absolute discretion of the executors, to be
employed ‘ I for the benefit, advancement, and pro~agatio-nof educatioiI and learning
i n every part of the world as far as circumstances will permit.” This cannot he
called a gift in charity. In Wi2Liums v. Eershaw (5 Clark and F. 111 E) the words
were, “ for such benevolent, charitable!, and religious purposes ” as the trustees should
think fit. The Master of the Rolls thought he could not construe all these terms
conjointly, and so held the residue1 to be1 undisposed of. So in EZZiS v. Selby (1 Myl.
and Cr. 286), the words “ to and for such charitable o r other purposes,” were hejld to
create a trust, but a trust of so i n d e ~ n ~at enature that it could not be carried into
effect. Here the words ar0: ‘‘ Education and learning.” Though the former may be
within the statute of Elizabeth (43 Elk. c. 4), the latter i s not, for it may apply t o
rewards to be given to the successful exhibitors of matured science, which certainly
were not within the intention of that statute. [I371 Morice v. The Bishop of
Durham (9 Ves. 399; 10 Ves. 521) was a case) where the words were “objects cxf

benevolence and liberality,” and they were held to be inoperative to create a valid
charity. And in James B. Allen Mer. 1%) the words ‘‘ bei~evolentpurposes,” were
held invalid. So in Ommalzey v. Bdcher (Turn. and Eum. 260), “to be given in
private charity,” were held insufficient.
[Lord Cranworth: You say that learning may receive a limited significat~on
from being connected with othelr words?] Certainly. A trust to bet valid, as a
charitable trust, must be one that not merely may be, but must be capable of execu-
* S. 11, invests th0 courts of New South Wales and Van Diemeds. Land with the
powerb o€ courts of equity, and s. 21, enacts “ t h a t all laws and statuka in force
within the realm of England a t the time of the passing of this Act { I I O ~ being in-
consistent here wit^ o r with any charter, etc. issued in pursuance hereof) sIz& be
applied in the administration of justice in the courts of Neiw South Walea and Van
Diemen’s Land respectively, so far as the same can be applied within the said
colonies; and as oftea as any doubt shall arise as to the application of any such
laws or statutes in the said colonies respectively, it shall be lawful for tile Governors
and Legislative Councils, eta.,” to establish then?, toge$her with any necessary modi-
fications. “ Provided that in the meantime it shall be the duty of the supreme
courts, as often as any such doubts shall arise upon the trial of any inforllzation or
action, o r upon any other proceeding before them, to adjudge and decide as to the
application of any such laws or statutes in the said colonies respectively.”
55
VIE H.EC*, 138 ~~~~~~ 3. ~~~~ [lSSS]
tion. In itforice v. T h e ~ ~ of ~ h ~ the previous
# ~~ ncase of zB r o m e v. Peal2 (7
Ves. 50 m. Sw also 10 Vm. 27, per Lord EIdon) is referred to. There the words
were: “ I n the purchasing of such books as, by a proper disposition of them under
the foIlowing dirffitions, may have a tendency to promote the interests of virtue and
religion, and the happiness of mankind;” and this c h a n g ~ b l esort of discretion
was to be exercised under the directions of the Court of Chancery. That was held
to be too indefinite. in Bezey v. Janzsom (1 Xi. and St. 69) tbe gift ‘toas
charitable or public purposes, or to any person or p e m n s in such shares, etc.” as the
tinistees shouId think fit, m d that was held to be tool indefinite for th0 Court to
execute the trust, the Vice-chancellor there adopting the principle stated in Morica
v. T h e Bishop of Dzcrhum. That principle is directly applicable here, for this
testator might have desired the money to be Iaid out in printing the works of Con-
fucius, and certainly would have deemed the pub~ishingof his own works within the
words of the charity.* [13$] But the law would not give any such effect too the
words. If there i s one purpose in the bequest which the law does not treat as
charitable, the who10 bequest fails.
Mr. R. P a h e r (Mr. dnderson and Mr. Ragshawe were!with him) for the1 Respond-
ents.--The decision of the EcclesiasticaI Court is conclusive as tor the question of
domicile. That CourG could not have proceeded without reference to tlje domicile,
in deolaring that the will was to be admitted to proof, and thant question of domicile
was d i ~ i n c t ~raised,
y for it was alleged that the testator was domiciled in England,
and that &e wilI ww t o be d e ~ ~ i n by e dEnglish law. The dppe~lanttherefore
cannot deny that the validity of the will itself was a question depending in the
Ecclesiastical Court. If so, the decision of that Court i s conclusive1 in the1 present
appeal. Tliorntom v. Curling (8 Sim. 310) is not an authority the other way, for,
on reference to the report of that case when it was in the Eccles~asticalCourt (Curt-
img v. ~ ~ o m t o2 Adams,
n ~ 6), it appears that Sir J. Nicholl treated the question of
domicile as iri-elevant 11391 with reference ta the factum of %he will, as he thought
Colonel Thornton incapable of creating a, French domicile, or as having had an
English. domicile, at %hetime of making the will, being then in London, and he
threw on the Court of Chancery the necessity to examine into! and to decide tlie
question of domicile. But that mode of treating the quwtion was completely over-
thrown by the decision in ~ ~ u nv.l Bemes e ~ (3 Hag. Ecc. Rep. 313).
As .to the fact-the testator here acquired an Indian domicile; then reacquired
his scotch domicile of origin ; t h m lost it, and acquired an English domicile, and
never acquired m y otber.
[me Lord ChancelIor.--~eir h r d s h i p s are of opinion that the1 Scotch domicile
is entirely out of the question. The contest i s between an English and a French
domicile.] The French domicile was a mere afterthought, and the opinion of their
Lordships, in effect, puts an end to the question. For here there was no evidence o f
that acting animo et facto, by which alone a domicile nan be acquired. The case of
De B o ~ v. eDe ~~ o ~~ z ~? (1 ~ a ~ 856), shows that ~ o u length
~ eCurteis, g ~ i d time is
an ingTedient in domicile, it is of little value if not united ta intention, and is
nothing if contradicted by intention.
The Lord ChanceIlor intimated that their Lordships were of opinion that the
* The idea which the teshtor himself appeared to attach to the words of his wil1
was in wme measure ~ndicatedby the following paper found after his decwm:--
“It having becm for a long time my intention, after discharging the various
claims as specified in my aforesaid will, and such farther annuities, grants, o r
bequests, as I, by this amendment, or codicil, thereto, give to1 the several persons
named therein, to devote the remainder of my fortune’ for the, encouragemennt of
moral education, on the most benevolent principle, connected, nevertheless, with
my system of a universal languagel, as set-forth by me in a work,* the greatest part
of which i s already in print, as r e ~ a i n d e rof the whole residue of my property, aft;er
discharging the several claims as enumerated in my said will, and this my amend-
ment, or codicil thereto, may be applied to the purpose$: aforesaid.
(Signed) J. B. G~LCHRIST.”
* ‘‘ The Tuitionary Pioneer.”
56
 VIP H.L.C., 140

learned counsel need not trouble himself upon this point, nor as t o thel applicability
of the Mortmain Act to New South Wales.
The property here is validly given for a ohar~tablepuqwe. The ‘‘ benefit of
learning ” must mean the advancement of learning. Now a devise for the mainten-
ance of a s c h d is good. A. gift for the advancement of ‘ I education m d of learning ’‘
cannot be bad; for they are, if not actuBlly s y n o n ~ ~ uats ,least not opposed
b each other.
The cases cited on the other side do not affect the present. I n Morice T. The
B i s J ~ o pof Durham (9 Ves. 399 j 10 Ves. 522), it was deteirmined that benevolence did
not necessarily, and liberality did not at all, signify charity. That cannot apply to
education and learning. So in Tesy v. J m o n (1 Si. and St. 69), the bequest was to
charitable or publio purposes, or t o such private persons as the e;secutors Gght
t f ~ i l anything charitab~ewas intended.
think fit; which left it entirely d o ~ ~ ~ whether
So in $U& v. Moriey (5 Beav. 177), where the devise was for the benefit of “ poor
pious persons, male o r female, old or infirm, BB the executors see fit, not omitting
large and sick familiw of good character,” and the doubt was, whether the word
“ poor ” ran through the whole sentence, the devise was held good. En O ~ ~
P. Butcher (Turn. and Russ. 260), the devise; of the residue was held void because
it was to be given in private charity,” which vas held t o be an objeck too indefinite
to g h e the Crown jurisdiction, or to enable the Court to execute the trust; and in
~ ~ ~v. dGranger u ~ ( 5l Beav, 300), where &e words were ‘‘ for the relief of domestic
distress, assisting indigent but deserving individuals, o r encouraging undertakings
of general utility,” Lord Langdale held the gift void, f o r the words “general
uhiility ” would compr~hendmany things that were not at all in the nature of charity.
But such cases as these do not touch the present, whem the gift is for the propagation
of education, a purpose that the Legislature has recognised as legd.
It m%ybe doubted wbther Browna P. Peall(7 Ves. 50 a; 9 Ves. 406; 10 Yes. 27)
would recdve the same decision if now, f o r the first time, p r ~ [ l ~ l ] - s e n t e dt o the
Court, as indeed Lord Eldon more than once intimated. Tbese and many other cases
were collected in that very useful work, Shelford on Mortmain (p. 68, et seq.). In
~ o ~ v. Cams
~ s (3 eHare,~ 267), the trust was for such purposes having regard
to the glory of God in the spiritual welfare of his creatures, as the trustees, should,
in their discretion, think fit; We gift was held to be g o d for religious p u r p ~ m ,
but was restrained to them. In ~ ~ w e r s v,c ~~ o~ r~ ~~ ~( 1rMoll. ~ c616),o uthe~ trust
~
was t o lay out “ &2000 per annum Gill my son comm of age, in the service of my
Lord and Master, and, I trust, Redeemer;” and it was held goad as a charikable
devise, because, as Lord Manners said, it could not be distinguished from a bequest
to pious uses, which was good. ~ ~ g T. G~ o t ~ (5~~Hare, ~ ~ n2 Phill.
~ g 484; ~
* 594) following ~ ~ o g g T.~ ye g ewe^^ (7 Tes. 36), shows that i t i s no criterion of B
charitable bequwt that it is not Gapable d baing administered by the Court 5f
Chancery, for that that must be the case with every charitable gift Byhich was to be
admin~steredunder the sign manual. There We bequest wag of residue to “the
Queen’s Chancellor of the1 Exchequer for the time being, to be by him appropriated
to the benefit and advantage1 o f my beloved country, Great Britain,” and it was held
t o be good. So in Loscombe v. ~ ~(13 Beav. 87;~ see the notet t o this case,r
p. 83) a gift to the society f o r the increase and encourage men^ of good servant5
was held valid. And in The President of the Zrrtited S ~ e v. s ~ ~ (a&the ~ o
Rolls, 12 &Iay 1838, M.S.), a gift of residue to found at ~ a s h ~ n ~under o n , the name
of the ~ ~ ~ t h s ~nstitution,
o n ~ n an ~ t a b l ~ s h m e nfor
t the incream and d ~ f f u s i ~ofn
knowledge arnorg men, was sustained, [I421 on the ground that knowledge must
mean sound and useful knowleldge, and anything for the benefit, advancement and
propagation of that, was for the advantage of mankind.
Extent of purpose in the bqumt, and las-genw of discertion vested in the trusbes,
do not constitute an objection, of w&eh the strongest possible instance is furnish&
y HOT& v. I;wd ~~~0~~ (2 MyL and K. 59), where the gift was of &l80, to be paid
annually to a lady for her life, to be by her d ~ ~ r i b u in , discretion, to private
~ dher
individuals or public institutions, without limitation o r control ; and after her
death, to be paid t o another person, and the survivor, etc., and “tcr be given away
in charity in the same manner as th0 rest of the money as P have direct& my
executors, etc.” This was held & good charitable gift, and being left to the absolute
57
VI1 H.L.C., 143 WHICKER 'U.HUME [1858]
discretion of the legatees, rendered a scheme unnecessary. The1 general result of
the cases is that where the bequest clearly points to what the law considers to be a
charity, effect is to be given t o it. That is so here.
The Solicitor-General (Sir H. Cairns), with whom was Mr. Wilkins, was heard
in support of the validity of the will.
Mr. Rolt replied.-The very large and indefinite words of this will would be
satisfied by the trustees founding scholarships i n Turkey and Persia, for the acquire-
ment there of the languages of those countries, which certainly could not be called
a charitable purpose in an English will. The bequest in Nightingale v. G o u l b u m
was good, because it was for English purposes only.

[I431 The Lord Chancellor (Lord Chelmsford) after stating the terms of the will
and codicil, said.-Upon the argument a t the Bar three main questions were raised :
first, upon the domicile of the testator ; Secondly, whether the Statute of Mortmain,
9 GIO. 2, e. 36, applied t o a devise of lands, situated in New South Wales, and rendered
the devise for charitable uses void ; and, thirdly, whethr the trust upon which 1he
residue was given, constituted a valid chraritable bequest. Upon the1 point of
domicile, an objection was made on the part of the Respondents, that i t was n o t
competent to the Appellant to enter into that question, inasmuch as it was conclucled
by the probate of the will which had been granted by the Prerogative Court. And
ary, theirefore, very shortly to consider what is the effect of a grant of
probate upon a quest,ion of this kind.
Now, there is no doubt that it is the province and the duty of the Ecclesiastical
Court to ascertain what was the domicile of the party whose will is offered for probate,
in order to ascertain whether that is a valid will, the testator having complied with all
the requisites of the law of the country in which he1 was domiciled. But if probate
is granted of a will, then that conclusively establishes in all courts that the will was
executed according to the law of the country where the testator wax domiciled.
Supposing the fact t o be, that the testator was domiciled in a foreign country, and
the will was not executed according t o the law of that country, still, if it had been
admitted t o probate by the proper Ecclesiastical Courts here, no) other Court could
go back upon the, factum and raise any question with respect, to the validity of the
will.
That seems to be exemplified and established by the case of Douglas v. Cooper ( 3
Mylne and K. 378). There a married woman, under [I441 the)power of appointment
in a marriage settletment, which was to be exetrcised by a will, to be executed with
certain formalities, made a n instrument, which was admitted to probate by the
Ecclesiastical Court, and the1 Master of the Rolls held that he was concluded by the
judgment of the) Ecclesiastical Court granting probate, from considering the ques-
tion, whether it was a will; namely, %?hetherit v a s such an instrument as was required
by the power, and that the office and duty of the Court were confined t o the considcra-
tion of the question, whether that instrument was executed with the formalities which
were required by the powers.
Therefore, I apprehend, that this will having been admitted to probate, it must
be taken to be a valid will wherever it shall turn out, that the tmtator was residing
a t the time of his death, but that the place of domicile is still open for consideration,
and also the validity of the bequest contained in the will, and the effect of it according
to the law of the domicile of the telstator. The question, therefore, beling open for
consideration as t o wheire the testator was domiciled a t the time of his death, it will
be necessary to enter shortly into the consideration of the evidence upon that subject,
upon which I apprehemd that, your Lordships, will felel no very great difficulty.
The testator was a native of Scotland, born thejre in the year 1759. I n the year
1782, being then of the) age of 23, he went t o India, and shortly afterwards entered
into the service of the1 East,India Company as a>medical officer. He continued in the
service of the East India Company i n India till the1 year 1804, and by his serv,lces
with the East India Company, he acquired what has been called i n several cases an
Anglo-Indian domicile. He returned t o his native country i n the year 1804, married
there i n 1808,and shortly after his return he retired from the service of [I451 the
East India Company upon a pmsion which he1 enjoyed down to the time of his
death, which was in the month of January 1841.
There is no doubt that his domicile of origin, rewived by h& return to, and
68
 WHICKER ‘U. HUME [1858] VI1 H.L.C., 146

residence in, his native country. But it is unnecessary to pursuer the circumstances
of that residence, because your Lordships have already intimated a very strong
opinion that in the year 1817, and in subsequmt years t h e circumstanceis showed
that he had relinquished that domicile of olrigin, and thatl the real contest was
between two alleged subsequently acquired domiciles. I n the yeiar 1817, as I have
already stated, he quitted Scotland, never permanently to return, and established
himself in London. He was a pelrBon well skilled i n Oriental languiagasi and
literature ; he was the author of several Oriental works, and, a t the time he came to
London, he had a large stock of those works on hand at, his booksellersl. And it was
alleged that the reason of his coming to London was to promote the sale of those
works. He seemed to have considered that the best, model of advancing his object was
t o give public lectures on Oriental literaturei; and about the year 1821 he obtained
employment fram the Dirmtors of the East India Company, as professor of the
Hindostanee language, for three years, which was renewed a t the expiration of thlat
time for a farther term of three years, and, afterwards, for one year, which brings
us down to the year 1828. At the expiration of his! employment under the East
India Company, he lectured gratuitously, as it is said, for the purposel of facilitating
the same object which he had i n view, and which brought him to London.
Upon his first arrival in London with his wife, he went into furnished lodgings,
and continued to reside with his wife in furnished lodgings down to the year 1822.
He then took a furnished house i n Clarges-street a t a rent of [I461 2400 a year,
and he lived in that house for five years, at the end of which time he removed to
another ho’use, No. 38, in the same street, which he occupied for another year.
That again brings us down to the year 1828. During the time) he was residing in
Clarges-street, in the yeiars 1825, 1826, and 1827, he made, excursions to the continent,
but kept on his house in London, and returned froin time to time to his residence.
In the year 1828 ha went abroad and lived in various parts of the continent for three
years, down to the year 1831. He then again returned t o London. He appears
to have remained a very short time in London in that year, 1831. He went abroad in
the same year, whether for pleasure o r for health is wholly immaterial; but he
remained abroad upon that, last occasion froin tha year 1831 down to the year
1833, and again he returned to London. In the! month of May 1833 ha proposed to
establish. a newspaper, and for that purpose he took a house in the Strand, and he
continued to hold that house, having employed persons1 to assist him in this under-
taking o r speculation, of a newspaper. He held that, house1 for a year, but the
speculation entirely failed. In the year 1834 he abandoned it, and in that year,
1834, he quitted England for Paris, and he only returned to England occasionally
from the year 1834 do-n to the1 period of his death in 1841, namely, in the years
1839 and 1840.
Kow, my Lords, the question is, whether, during the long period which I have
mentioned, from the year 1817 down to the year 1834, the testator having clearly
abandoned his domicile of origin, he had not acquired a new domiciile in England.
And I think your Lordships will entertain very little doubt that such a domicile was,
in point of fact, acquired. It seems to me, that the nature of his residence!and his
(constant returns from the continent, bring that residence completely within the
definition [147] of domicile which is; given in the Dige8st (Bk. 50, tit. 16, s. 203):
‘‘ Unde cum profectus est, peregrilzari v i d e t w ; quod: si red& peregrinari jam
destitzt.”
If, then, he had acquired a domicile in England, the queetion is, whether he ever
lost that domicile by the acquisition of another. And that will depend upon whether
the former domicile had been abandoned by the acquisition of a new one, intentionally
and actually, animo et facto. And it will be necessary, therefore, to consider what
were the circumAances undeir which it was alleged that the French domicile was
acquired. I have stated, that he went abroad i n the year 1834. In the year 1837,
he took a second floor in the Rue Martignan, i n Paris, for a period of
three, six, or nine years, determinable, after the first year’s occupation,
upon a six months’ notice, a t a rent o’f 3500 francs, amounting to 2140 a year, and
with a stipulation that he should place in the apartments sufficient furniture to be
a security for the rent. But the question, first of all, arises, did he manifest any
intention of abandoning the English domicile which he had acquired ?1
Now, let us abserva what happens with relference t o the1 English domicile. At the
59
mr H.L.c., 148 ~ ~ ~ ?A rH CU ~~ 81
[185 E~ ~

time he went abroad, in the p a r 1834, he left with his mIicitor a number of private
papem and his library oIf books. %herewas a large stack of books still re~aining-on
hand at his b o o b e k s . I do not lay niuch stress upon +&atcimmstance. There
wa~,axl insurance upon the books to the extent of &3000, but, of courw, he; could
not remove theitn, it would not have m m e d his objec& Re also left several trunks
and boxes and packages and a bookcase at €Io~land’sw a r e ~ o oin~Great Pulteney-
street, it appean, whwe the? had been wa.rehou& asi ion ally fmm the p a r 1837,
and they were left there down to the year 1540, he paying war~[l4~]-house rant for
them during the time. And in the:year 1540, nine of those paoka,w were rmmved to
Tilbury’s, 1 think, in High-street,, Maqlebone, where thtvg remained till nfier the
death of the: testator, whm, a year o r two altevrwards, they were removed by the
widow, m d warehouse rent paid fer &a.
Sow, the ~ ~ ~ of his
u leaving
~ ~ p c ~ pe in~ ~ n~g I ya n dappears to me
this
very strongly to indicate an int~ntionto return ta this country when c i r c u m s ~ n c ~
rendered it dmimble for hini to do so. He was very f a r advanced in life a t that Gme,
and he died at the age of 52, and if he had intended ta make Frame his permanent
re&deaca, he would of CO-urse have, removed ail his property, and would never have
been a t the expense of having to pay warehouse mnt for it. And there is one
circumstance upon this mbject which appears to me to be almost conclusive w i t h
respect to the f a t 0-f his d o m i c ~ l ~in, the evidence 0;f Rlr. Alleq &e b ~ k s e ~ ein r,
which he says, ‘‘ that on the occasion of the testakds going- abroad in or about the
year 1839, he depoeitd with me a haadsome ornamental clock and some pictures,
in order that I might keep the same for the said testator during his: absence, and
unril his return to London, aad that the same1 remained in my possession a t the time
of khe demease of the said testator.” Therefore, I think it is quite d e a r &at there is
no evidence whatever of an intention to abandon the domicile whicth he had c1arly
acquired in England.
Then, was there any i ~ t e n t to ~ oreside
~ t ~ ~ so as to acquire
p ~ ~ a n e inn France,
a domiciIe there$ Now, I $eat-e out. of Gomideration the expressions which may be
sc~~ttered hem and there through letters which are h be found in tiha v o l u ~ i ~ e u ~
correspandence printed in $he Appendix, because I bekwe your Lordships wiII .find
expressions with respect to each country of an intention to regide permap[149]-nmtly
there. I think it i s rathey more important to cons.ider what is the actual evidence
upon this subjecii, upon vhich it appears ta me %i be ~ x t r e ; ~ difEcult el~ for the
A ~ ~ ~ lnow a n t ot contend tha%the domicile: was French. For what was the coume
which he took? Whm the case was before the Kaster of the Rolls, the AppeIlant does
not appear a t that,time to have ever d ~ a nof~ the t testator having acquired a French
damicile, for t7hewhole oi! the evidence, from the beginning t o 1 the end, i s prmwted
for the purpose of establishing that his heart clung t o Scotland, that ha had no other
views in life but retGurningthere, and dying at home at last,
Now, my hrds, I intimatd my opinion, o r rather threw oat a ~ u ~ ~ m t in i othe
n
course of &e a ~ u m e n tthat , the evidence which was given by the A~pellantin this
respect oornpIot&y destroyed any evidence in favour of French doniicile; that. every
expremion, every ind~cationof a wish aad i n ~ n t i o nto return ton Scotland, and end
his days there, fomeaed the idea of his inteation to acquire1 a French domicile. And
if your Lord&ips look through the whoh oi the evideincec upon this subject, I think
it will be found, that with the exception of some of the casud expremiens, which I have
adverted tcp in the letbm, the o d y evidence which c m be rested upon for p m f
&at he &en intended tcr wquire B French domicile, is the ~ r ~ g e : for m ~ taking
t ~
the apartmmta in Paris, for three, six, o r nine years, upon which, a t ail events, he
hung with suEcimt l ~ e n e $ t so enable; him ta detach himself from t.hem at a very
diort notice after the fimii year of occupat~0;n.
What, then, is the xesult? The1 domicile of origin was abandoned, and a nev
domicile was acquired by his residence in Engla-nd ; that new domicile was never
r e ~ i n ~ u i s no
h ~fresh
, domicile was obtained in Frame ; c o n s ~ u ~ n t the~ y ,English
d # ~ i G i r~ee~ a ~ n und~sturbed,
ed and E150l that was the domicile of the testater at the
time e€ his death,
That brings me to the second question, which i% a8 tcp the eEect of the Statute
of ~ o r upon ~ of~ lands
t a~devise ~ in New South Wales. In the1 coume of the
argurnmt, your Lordships intimated a strong opinion that the1 Mortmain Act did not
60
 WHICKER U. HUME [1858] VIZ H.L.C., 151

apply to the colonies, at all events not the colony of New South Wales. It will,
thcrefore, be nemssmy for me b address your Lordships only very shortly upon
at subject. I consider that this question is almost determined by the opinion of
the &Iashrotf the Rolls, S i y William Grant, in the case! of the AttoP.ney-Gerberul v.
~ ~ e (2w Mer. ~ r143), ~ h a u s e , though a distinction waa sought to be established
between that case and the prwent by reason of the island of Grenada, which was the
colony in that case, being a conquered count^, and this being a settled colony, yet
I apprehend i t will be found, that unless the Act of 9 Gm. 4, c. 83, applies t o this
particular case, the principle involved in the decision crf Sir William Grant would
be completely conclusive!on the present question. It is t’ruethat the inhabitants of a
conquered country have those laws only which are wtablished by the S o r e r e i s of the
cotl.quering country, and that the colonists of a planted colony, as it is said, carry
with them such laws of the mother count.ry as are adapted to their new situation.
Rut the opinion of Sir Williazn Grant related gmeraily, I think, to the Statute of
sortmain, as applicable to all ccrloniw, for he says, ‘‘ Whether the Statute of Hort-
main be in force in the island of Gmnada will, as it S W ~ Rto me, depend on this
consideration, whether i t be a law of local policy adapted solely to the country in
which i t was made, or a general regulation of properiiy equally applicable to [151]
any country in which it is by the rules of English lam that property is governed.
I conceive that the object of the Statute of Martmain was wholly political ;that it grew
~ , was meant to have merely a local operation. It was
out of local c i r c u m s t ~ n cand
passed to prevent what was deemed a public mischief, and not to regulate as between
ancesbr and heir the power of devising, o r to prescribe as between grantor and
grantee the forms of dienation. It is incidentally only, and with reference to a
particular object, that the exercise of the owner‘s dominion over his property is
abridged.”
Now, I think, upon general principles, if the question were without reference to
any act of the Legislature, whether the Nortmain Act wm a p p l i ~ ~ bto l ethe situation
of New South Walm, I xhould most decidedly, without any hesitation, come to the
conclusion that it was not; and &erefore, I think it would be nmssary for the Appel-
lants to show that under some Act of Parliament that particular law was transplanted
to the colony, and was ingrafted upon the law and institutions there. Now, the
Act which they apply to this case appear8 to me t o have been entirely m~sunderstood.
I do not think that the 24th section of the 9 Gm. 4, 0. 83, applies %athis partieicular
case of a law of policy being applicable to the colony.
Vhss i s the Act of 9 Gem. 41 It i s an Act “To make fm-ther pmvision for the
administration of jur3Giee,” and for t b t p u r p w s Court is mtahlished. The greakr
part of the Act consists of regulations and rules for the government of &at Court,
and then the 24th wxtion provides, ‘ I That all laws and &stutes in force within the
realm of England at the time of the passing of this Act (not being inconsistent here-
with, or with any ohart%ror letters patent, o r Order in Council, which may be imued
in pursuance hereof), shall be applied in the a d ~ i n i ~ t r a t i oofn justice in [lsz] the
Courts of New South Wale8 and Van Diemen’s Land ~ ~ p ~ ~m ~far~asethel same y ,
can be applied within the said colonies; ” and then it provides for ordinancm being
rnsde in doubtful cases, to say whether the law shall eEtend to khe colony or not :
*‘Provided alwap, that in tha mean time, and before any such ordinanceis shall be
actually made, it shall be the duty of the said Supreme Courts, a8 of& as any such
doubts shall arise, u p ~ nthe trial of my information or action, o r upon any other
proceeding before them, to adjudge and dmide a8 to the application of any such
laws or atatatss in the said eolonim respectively.”
Kow it would be a most extraordinary thing that this provision should apply to
those gelneral laws .ta which the a r ~ u ~ e crf n t the Appellant smks to apply it, and
that the colonists of New Soiuth Wales should not at all know under what law they
were living, until they had brought an action, and until in &e course of a a t action
they had ascertained by the d e t e ~ ~ i n a t ~ofo nthe Judges, that the p&icutar Iaw
about which they were ignorant, was really applicable to the col~ny. 1 mllsidtt.r that
there is a l i n ~ i t ~ t ~
with
o n regard to the particular laws, which are mferred to by this
Act’ of Parliament; aad that it. applies to I a m for the administration of justice in
the Courts of New South %Vales, that if any question asises as to the laws which
are applicable to the modes of proceeding in the Courts there5 the Judges are to
61
VI1 H.L.C., 163 WEICKER g. HUME [I8581
decide upon that question, incidentally arising in the course of thei trial of any
information or action brought before them, whether the law is or is not applicabls
t o the colony.
Then that being so, it being n ~ ~farsthe aA p ~p ~ l Ito~ show t that there is some
A& of Parliament which applies the Martmain Act to the colony of New South Wales,
aiid this Act being referred to as &e only authority upon the subjwt, I apprehend
that it redly has 110 applicatio~to E1531 this case; that it hw becm m i ~ u n d e ~ ~ o d ,
arid that neither by oonmon law nor by Act of Parliament, is the Mortmain Act
ap~licableto a devise of lands in New SouUi Wales.
My Lords, the only remaining question that arises upon the words of the bequest
in the d i o i l is, as to whether this is a good, charitabl~bequest of the testator, by
which these stocks, funds, and sscuritiw, are iven to trustem ‘‘ upon txust to apply
and appropriate the sanie in such m n n e r
their absolute and u n ~ n t r o l discretion,
l~
k tha said trustees or trustee &a& in
t@nkproper and ~ p e d i e n t for , the benefit,
advancemeat, and propagation of edu nd learning in etvery part of the world.”
And it appeared to be conceded in of the argumenl, that if the bequest had
stopped short a6 the word “ educat ift would have been good. But it is said
that the! word ‘(learni temive s i ~ i f i c a t i o nand
, that you may
benefit lewning in va charit&le. And in the course
of the argument, an i the argument of counsel bcrfors
the Master of the Roll It was suggested iii the course
of the argument there one instance in which learning
might be benefited by applying the funds in a, way that would not, come within the
description of a charitabk object, that woluld make the bquesrt invalid and void.
Kow it appeared to me, when that a r g u ~ e n wast put forward, $hat, that wa8 rather
begging the qumtion ; b a u s e it was first of all putting tt construction, and a very
extensive conxtructian, upon the word “ learning,” which pmdAy it may be found not
necessarily to bear j and it was only by putting that wide con~truo~ion upon it, that
you could w.~ppose[I541 that there were purposes to which the fund might be applied,
which would not come within the description of a charitable object. The word
‘( learning ” is a word which is susceptible of various meanings. It is rather extra-
ordinary that in Archbi~hopWhatdey’s work upon logic, it1 is placed anioag the
equivocal words, that is words which have two s-ignifications,. Re says, ‘‘ ‘ learning ’
signifies either the act of acquiring knowledge, or the knowledge itself. Exempli
yrati& he neglects his learning ; Johnxon was a man of learning.” Now the question
is, in what sense did the testator use this expression? I apprehend that if thelre are
t w o meanings of a word, one of which will effectuate and the other will defeat a tes-
tiltor’s object, the Court is bound to select that meaning of the word which will carry
out the intention and objects of the testator ; and T think that your Lordships are not
without aid i n giving the particular limited interpretation (if I may use the mpres-
sion), to1 the word learning ” which is required for the purpose of establishing the
((

validity of this bequat, because when you find that the teatator awociates with that
word “ learning ” the word “ educntion,” I think that from the society itself in which
you find the word, your LordRhips may gather .the meaning which it is necessary to put
upon it, and tliat he means the word learning ” in the sense of imparting knowledge
by inskruction or teaching. Well, if this construction be correct, then I apprehend
there is no di&culty whatever, bscnuse it will range itself pretty much within the
meaning of the word ‘‘ education,” although not precisely synonymous with it, and it
is admitted in the argument that if the word hlad stod alone, the
bequest would hare been valid.
But then it is said, that the bequest is of such an exten8ivt.l nature, that i t i s im-
possible that it can b carried into effect ; that it extends over the wllole habitable
world. [1&3] But, I apprehend, my Lords, that there is no difficulty whatwer with
regard t o the extensive chara&er @f this gift, k a ; u s e of the trust, far the wbjwt upon
which the discretion of the trust= i s to: be exercised is specific and limited, It is
for ‘‘ education ” and for “ learning ” in the 8enso of teaching and indruction. And,
in that sense, it appears!t@me, that the case which w88 cited by the Respondents, and
which is printed in the Respondent’s case of The Presideat of the United States of
Aineriea v. Drummolzd (at the Rolls, 12 May EL%), may be! applicable, where Lord
Langdale decided, that a gift to the United States of America, to found, at.Washing-
ton, under the name of the “ ~milhsonianI ~ i t u t i u n an , e s t a b l ~ s ~ ~for
e n tthe in-
62
 WKICKER v. HUME f1858] VI1 H.L.C., 186

crease of knowledge among nien," was a valid charity. There the area was as
spacious and extensiva as in the present case. The p a ~ i c u l a mode r in which the
object of the testator was to be carried out was detwribd, namely, by founding an in-
stitution. for the increase of knowledge among men. Here it i s to' instruct, to beach,
and to educa& t h ~ u g h o u the t world. Then the mere cireu~stanceof this spacious
area being open tor the discretion of the trustees, would not prevent the1 gift from
being available as a good charitable bequest, the discretion being sufficiently pointed
and specific to make it definite and certain.
Under thew circu~stances,my Lords, without going into the different nuthorities
that have b e n cited, because I do not think it is at nll necmsary, it appears to me,
tha*tgiving that interpretation t o the word '' learning," which, I think, we are entitltad
to give to it, and to which its assoc~ntionwith the word education^ seems to me nee--
sarily to point, this, according to all the authorities, is a valid charitable bequest.
And, therefore, upon the whole [156] of the1 case, I siubmit t o your hrdships that the!
decrees1 of the Court below ought t o be affirmed, and aErrned with costs.
Lord C ~ a n ~ o r t h . - ~Lords,
y my noble and learned friend has gone through this
case 80 very fully, that it. seems to me I shall be best discharging my duty by adding
vcry little to' what he has: already said. I will, therefore, only allude very briefly to
all the d i f f ~ ~ epoints.
nt
The firs6 question made ie onet that was extremely important, namely, the point,
whether probate was or was not conclusive evidence of the domicile. Now, I have no
hesitation in saying, that the afirmative of that proposition cannot be a correct expo-
sition of the law. A probate is conclusive evidence that the instrument proved wils
t e s t ~ e n t anm~ r d i n g to the law of this country. But it provw nothing else. That
may be illustrated i n this: way. Suppose there was a country in mhich the form of a
will exactly eimilw to that in this: country, but in which. no person could give
away more than half his propelrty. Suck an instrument, made. in that country by a
person there domiciled, when brought to probate1 here, would be admitted t o probate
as a matter of course. Prob&te would bv conclusivei that it was testamentary, but it
would be conclusive of nothing more, for after that there would then arise the ques-
tion, how is the court that is to adminiater the property to afmrttzin who is entitled
to i t ? For that purpose you must look beyond the probate1 to know i n what country
the testater was domiciled, fer, by the law of that country, the property must be^ ad-
stered. Therefore, if the testator, in the case I Imvel supposed, had given away
all his property, consisking of $10,000, it wojuld be the1 duty of the Court that, had to
construe the1 will t o say [157] $5000 only can go according to the directio
will, the other g5000 must go in some other channel. Therefore, I think it
that that propo~itionis one that cannot be maintained. I n truth, howev
present ease, i a my cpinion, it is utbrIy unimportant with reference to the rmult,
k a u s s , from the first mQment when I underrstactd this ease, and saw my may into
the very great mass of Ieitters and papers and evidmce in it, I could not entertain
a moment's doubt that there is nothing here to lead to the notion of anythinq but an
English domicile.
I will not go into the circumstanaes prior to 1817, and only very few of them
afterwards; but in 1817,I think the evidence is conclusive, that this gentleman
quitted Scotland, intending to quit i t for ever. I d e not niean that he did not con-
template at some time or other going back again to visit Scotland, but that he never
meant to be otherwise than a n ~ n - s ~ t c h m a an n , ~ n g l i s ~ in
~ truth,
~ n , bwnuse: he
came and settled himself in London. It is said that he was only in lodgings. That
4s not true ; for five or six of the last years he was in England, he was in a house in
Clarpes-street, first i n one. and then in another. I am not prepared to say that it
mouId make any diberence if he had been in lodgings only, or, to use a eon~nlo~l eax-
premien, only lying at single anchor, so thnt he could easily go away. That inay be
R tircmnstanw making it less probable that he meant to establish a residence in &at
place. It is, however, only a c i r c u n ~ ~ t a n ~Why,
e. how many people are there who
havc Iiired all their lives in Chambers, in Tnns of Courts. Nobody can doubt that
they are doiniciled there, although that may not be the sort of place i n which pergong
marrving or settling are in the habit of being found. This gentleman, however, ,j
1817, came to London ; he was here for four or five yews, El581 at different todgi~ip,
in brlington-street, and a€termards in two successive houses in Clarg-street, all this
time prosecuting his avocations in life, endeavouring to make the1 knowledge which
63
VI1 H.L.C.,159 WHICKER w. HUME [1858]
he had acquired, and the works which he had printed, available1 for profit, and en-
deavouring t o get an increase of income by pensions1 from the East India Company;
in short, conducting himself t o all intents and purposes as1 being at home. After
that, undoubtedly, he passsd a considerable portion of the remaining years of his
life abroad. I think he first went abroad for a short time, and then, returned again,
and was in London up to 1833. And he then endeavoured, a,si my noble and learned
friend has pointed out, to establish a newspaper in London, another indication of
this being his place of residence. That did not answer, and from that yeas, 1833 o r
1834, he was principally in Paris, where he died in January, 1841 ; principally in
Paris, but continually ooming to London. And I think the circumstance which has
been pointed out by my noble and learned friend proves to demonstration that he
never abandoned the intention of coming back t o this country. He was a person
above 80 years1 of age, and when m e sees a man of that age1 providing f o r what shall
oome after a lease of three o r six years, one cannot help feeling that the great proba-
bility is that he would be in his grave before that time has expired. But that was not
this gentleman’s view of the case, because he left his library hero in the custody of his
solicitor, Mr. Braikenridge, to be taken care of till he returned; and in the most
marked manner, in the year 1839, Mr. Allen, the bookseller, says, ‘‘ He deposited with
me a handsome ornamental clock and some pictures, in order that I might keep the
same f o r the said tehator during hie absence, and until his return t o London.”
How can you doubt that he looked to London as the place, to, which, as i t were, he
belonged 1
[159] That being so, I might leave that part of the case; but I think it is not in-
expedient o n questions of this sort t o say, that I think that all Courts ought to look
with the greatest suspicion and jealousy at any of these questions as t o change of
domicile into a foreign oountry. You may much more easiily suppose, that a person
having originally been living in Scotland, a Scotchman, means permanently to quit
it and come to England, or vice versa, than that he is quitting the United Kingdom,
in order t o make his permanent home, where he must f o r ever k e a foreigner, m d in
a country where there must always be those difficulties which arise from the, compli-
cation that exists, and the conflict between the duties that you owe to one country, and
the duties which you owe t o the other. Circumstances may be so strong as t o lead irre-
sistibly to the inference that a person does mean puatenus in i l h exuere patriam.
But that is not a presumption at which we ought easily t o arrive, more espwially in
modern times, when the facilities for travelling, and the various1 inducements f o r
pleasure, for curiosity, or for economy, so frequently lead persons to make temporary
residencesi out of their native country. It appears to me, therefore, preposterous to
suppose that this gentleman did not look to return to this oountry.
Upon the subject of the domicile, my noble and learned friend has1 alluded to one
definition which he said came from the Diged. It is also t o be found in the Codes
(Bk. 10, tit. 39, s. 7), and was a principle of Roman law. There have1 been many
others, but I never saw any of them that appeared to me tot asslist us a t all in arriving
at a conclusion. In fact, none of them is, properly speaking, a definition. They are
all illustrations in which those who have made them have sought to rival one another
[160] by endeavouring, as far as they can, by some epigrammatic neatness or e l s
gance of expression to! gloss over the fact that, after all thky are endeavouring to
explain something clarum per obscumm. By domicile we mean home, the perma-
nent home; and if you do not understand your permanent home, I am afraid that no
illustration drawn from foreign writers, o r foreign languages will very much help
you to it. I think the best I have ever heard is one which describes the home as the
place (I believe there is one definition in which the ‘‘ lares ” are alluded to), the place
“wnde non s i t discessurzcs s i nihil avocet; umde cum profectus est, preregrinari
videtur.” I think that is the best illustration, and I use that word rather than
definitiom, to describe what I mean. It is perfectly clear that, in this case, it was
competent t o those who questioned this will, t o go into this matter, and t o ask where
he was domiciled, with a view to see how the1 property was to be distributed. But
having done so, they have failed t o show that he was domiciled anywhere else than in
this country, where, therefore, the property would hava to be administered.
Then comes the other question, that of the Mortmain Act, which is new to me,
because there was!no appcal upon that subject when I had the honour of being one of
44
 WHICKER v. HUME [1858] VI1 H.L.C., 161

the Lords Justices (1 De G. Macn. and Gord. 506). The other two points were before
us, and therefore are not new to me; although I did not express my opinion at length
upon that occasiion, because I entirely concurred with my learned colleague i n the
view he took of the case. And nothing that has happened in this argument has a t all
tended to shake me in the1 opinion that the conclusion a t which we arrived is a per-
fectly correct one.
With regard to the question of the application of the [I611 statute of Geo. 2 to
the colonies, I think the decision of Sir William Grant upon that subject is1 perfectly
conclusive. Nothing is more1 difficult than to know which of our laws is to be re-
garded as imported into our colonies. But thers, again, like the definition of domi-
cile, we are always driven to explain by something that itself wantx explanation just
as much as the subject we are endeavouring to explain. The Act says, “All the
laws adapted t o the situation of the oolony.” Who is to decide whether they are
adapted or not? That is a very difficult question. But with regard to this Stahute
of Mortmain, ordinarily so called, I cannot have the least doubt that that cannot be re-
garded as applicable to the colonies. One thing that the Act requires is, that the dwd
is to be enrolled in Chancery within six months. When that statute was passed, I
believe people would have thought it very chimerical to1 imagine that they could get
from the antipodes to this country, and back again to the antipodes in six mofnths.
It might possibly have been done, but it would have been thought a remarkably good
voyage; and to suppose that an Act of Parliament is to be held tot be in force which
requires something so difficult t o be performed, as applied tot thoee distant colonies,
seems to me very chimerical. But, h i d e s that, there is the eixception in favour of the
Universities and the Colleges of Eton and Winchester. It is absurd to suppose that
any ena&ment of this sort could be meant t o apply to those distant possessions of the
Crown. And more particularly there is no evidence whatever that the evil which that
statute was meant to remedy, namely, the increase of the disherison of heirs, by
giving property to1 charitable uses, was a t all an evil which was1 felt or likely t o be
felt in the colonies. I think it therefore quite clear that that statute dom not apply
to New South Wales.
Then, with regard to the charitable gift for education Elm] and learning, it is
iaid that “ benefit of learning ” would not be1 charity; but what is the meaning of
education ” and learning ” ? If I remember rightly, Lord Justice Enight Bruce
((

said, I think it means just the same as if he had said, ‘(education in learning.” It
was objected, you cannot say that, because that would alter the words. Now, you are
not to alter the words of a will if by doing so you give a different meaning to it. But
where you have expressions so1 very vague a8 these used, for the benefit, advance-
((

ment, and propagation of education and learning,” you mu& see what the words
mean, looking a t them in their context, and there I think, n o s c i t u r a sociis, learning
there is the correlative of teaching; it is the being taught. It isl for the benefit of
educating and teaching only, that, instead of teaching,” the correlative verb is used,
((

namely, the being taught. The meaning is elxactly the same. My noble and learned
friend has pointed out that ‘(learning ” is a word of very equivocal meaning. YOU
talk of having had a “ learned education.” Strictly, that is nonsense ; still less is
there any sense in talking about (‘the learned languages.” What is the meaning of
that? It means the languages that are learned by people of high education. But,
coupling the word learning ” with “ education ” here, it is evidence that it means
((

education, and education f o r the benefit of those who are t o be taught; and I think
that, impliedly, it means this, that they are t o be taught that which mmmonly passes
i n the world under the name of learning; that is, they are n o t to be taught how to
tame horses, o r (I was going to say) how to guide ships, but perhaps that is something
which might be taught. Rut it is for education, as connwted with learning, that
this charity was meant t o be established.
Well, then it is objected that it is extended all over the world. I can only say that
H think that was a silly prof1631-vision; but4I cannot say that it creates a fatal
objection to the validity of the will, because the testator has said not that, it shall be
applied all over the world, that would be absurd ;but that it shall be f o r the benefit of
mankind in general, in every part of the world, as far as circumstances will permit. I n
settling the scheme for this charity, it will be the duty of the Court to see that the
H.L. XI. 65 3
VI1 H.LC., 164 WHICKER W. HOME [1858]
trustees make it as atensive as the nature of the income will permit. Therefore, in
conclusion, I cannot have any doubt whatever that i t is a perfectly valid charity.
Lord Wensleydale.--My Lords, in this case I agree entirely with my noble and
learned friends who have preceded me, and I really wish t a offer very little in
addition to what they have said. The main and principal question in this case
is one oi fact, and i t has been very properly determined by the Mab&er of the Rolls
upon the facts in evidence, that the deceased at the time of his death was domiciled
in England. It is perfectly clear that he had lost his Scotch domicile =Id acquired
an English one; and therefore the only remaining question was, heth her, after
having acquired an English domicile, he lost it by acquiring a French domicile.
It is perfectly clear to me, that it is as distinctly proved as i t can be, that when the
testator began to reside a t Paris, in the year 1837, he did so. without the intention
of making that city his permanent place of residence. The very terms in which he
took the lease for three, six, o r nine years, with the option of quitting at any time
upon giving six months’ notice, or of quitting it before, the apartments being let
jointly by the lessee or lessor, shows that he had a t that time no intention of fixing
his permanent residence there. And there is other evidence, concluding with that
of Mr. Lawson, who made his will, showing distinctly that he never went [164] to
France w i t h the intention of permanently residing there.
I think it is quite unnecessary to enter into the question of domicile, thwgh I
do not quite agree in the difficulty presented by my noble and learned friend who
fast spoke as to the definition of “ d o ~ i c i l e ~ There’ are several definitions of
domicile, which appear t o me pretty nearly to approach correctness. One very good
definition i s this : Habitation in a place with the i n t e n ~ ~ oof~ nremaining there for
ever, unlem some circumstance should occur to alter his intention ; I also take the
definition from the Code, which is epigrammatically stakd, and which I think will
be found perfectly correct, that domicile is (‘in eo loco singulos habere domiciliuni
non ambigitur, ubi quis larem rerumque ac fortunarum suarum suimara constituit ;
unde rursus non sit discessurus si nihil avocet ;unde cum profectus est, peregrinari
videtur, quod si rsdiit, peregrinari jam destitit.” I think that definition, if ex-
amined in all its parts, will be found to be tolerably correct, and that, if well applied
in this case, it will lead to a proper conclusion as to where the testator’s domicile was
at the time of his death. I perfectly agree with my noble and learned friend t‘hat,
in these times of visibing abroad, transferring oneself even far years abroad, you
must look very narrowly into the nature of the residence abroad before you deprive
an ~ n g ~ i s h ~ a n abroad of his English domicile. In this case, I apprehend i t
living
to be perfectly clear, and the evidence alluded t o leaves no doubt upon my mind that
he went‘ over to Paris for a t e ~ p o r purpose;
a~ that he never meant to reside there
permanently ;that his domicile, his establishment, his principal residence, was meant
to be in this country ;and he never abandoned it. Therefore I think that conclusion
to which the &faster of the Rolls came, with respect to his domicile, was perfectly
right.
[1@] Then it becomes quite unnecessary to discusa the p ~ p o ~ i t i oasn t o the
effect of the probate of the will in the Court of Canterbury. I do not know whether
I should not agrm with my noble and learned friend opposite, with a little esplana-
tion I have to give UPOR that subject, though I do not entirely agree with the pro-
position as laid down by him. I take it, that probate of a will in common forin is
conclusive evidence of the title of the executors ta all personal property of which the
teetator was capable of disposing j it is dso conclusive evidence that it was execukd
in due form according to the law of the country where he was domiciled at the time
of the dehth, bttcause it is beyond all question that the principle of mobdia sepuz&ntug-
~ ~ r i s completel~
s o ~ and ~ entirely
~ e ~ ~ a b l i ~ eIdtake
. it to be a perfectly clearly
established proposition at this day, eonfirmed by the case of Stanley v. Berries (3
Hag. Ecc, Rep. 373), that the succession must be regulated according to the law of
that country where he was domiciled at the time of his death, and that to make a
valid will it must be executed according to the forms of the law of & a t countW.
Therefore, a probate given in ant er bury, until revoked, must be c ~ n s ~ as d p&f
e ~ ~
of the will being the mflof a fully capable tastator, and that it was executed according
to the f o m s of the country in which he was domiciled at the time of his death, That
I apprehend to be perfectly clear. If the will is proved in solemn form, as this was,
66
 CONBON 21. CONRON [1858] PI1 H.L.C., 166

the probate is incapable of being revoked, and the law of the domicile must be taken
to be the law regulating the succession. At the same time, euppming it should
turn out that in some particular country (which is, inded, the case in France under
certain circumstances, and in Scotland) that the testator had not the power of dis-
posing of the whole of Cl&) his personal property, then I agree with my noble and
learned friend, that this instrument will only convey such property as, by the law
of the country, he was entitled to dispwe of by will. But it is conclusive evidence
for that; purpose. If it could be shown that there was a part that- belonged to the
widow rcnd children by the law of that country where he was domiciled, the will
would have not effect upon that part. It would be a nice question, what would be
the effect of the probate if he died domiciled in a country where there was no power
to make a will at all. My impression i s still, that, until the probate was revoked
in solemn form, i t would still pass, as far as England was concerned, all the property
to which the English law applied, and that the objecstion that he could not make any
will ats all ought t o be set up in o p p ~ ~ t i oton the will in the ecclesiastical court;
and that i t could not be set up in any way afterwards. I apprehend that my noble
and learned friend will hardly dispute the qualification which I have added to the
proposition which he has stated.
There remain, therefore, to be consider^ only two questions upon the construc-
tion of this will; and the masons which have been given by both my noble1 and
learned friends axe so very clear and satisfactory, that it i s really unnecessary for
me to add anything. With respect to the property in New South Wales being liable
to the Act of the 9th Geo. 2, it seems tcr me to be quite out of the question, for the
reasons given by both my noble and learned friends, and in the Court below, which
I think are perfectly satisfactory.
With respect to the c~nstructionto be given to the words in question in the will,
I agree entirely in the opinion that the testator did not mean any part of his property
to be devoted t o the purposes of learning, unconnected with education, but that he
meant it for education and E1671 learning connected with educ~tion,i t being part
of the office of education to teach. The word “ learning ” i s an equivocal word, not
merely to the extent stated by my noble and learned friend on the woolsack, but to
a much greater extent, for it means not only to learn in the ordinary sense, but also
to teach. In the translation of the Scriptures, in the Psalms, for example, there are
many insbnces of that sort. ‘‘ Learning,” therefore, I consider, in this case, equivalent
to teaching j learning, as part; of education. No portion of this charitable f und can
be devoted by the trustees for the purpose of rewarding learned men, u n c o ~ ~ ~ t
with education. It seems to me, therefore, that the, conclusion which has been
arrived at by the Master of the Rolls is perfectly right, and I agree entirely in the
advice which has been given to your Lordships by my two noble and learned friends,
bath with respect to the constr~ictionof the will and with respect to the will not
being subject to the Statute of Mortmain.
Mr. Greene.-Will your Lordships permit me to make an observation with regard
to coststsp ‘ h a original Appellant sued i.n fo& p a u ~ e that
~ ~ continued
, d o m to
the time of his death ; therefore, I preaume, your Lordships’ ordert as to costs will
begin from the time when the cause was revived.
The Orders and Decree appealed from were affirmed, and ‘‘ the Appellant ordered
~ , have answered the said appeal, the costs incurred by
to pay to the R ~ p o n d e n who
them in respect of the said appeal since the 24th August 1857, the date of the Order
of this House, reviving the appeal in the name of the Appellant.”-zOrds’ Joumalg,
July 16, 1858,

[la]PHILIP R. ~ ~ ~ ~ O ~ , C- ~~ ~ ~I eS T~ E, OZ CONRON
Pa ~ ~~ ~~and; Others,
Respondents [July 26, 27, 30, 18551.
[Hews’ Dig, X’Y. 1646, 1659, 1660. ~ i s t i n ~ u i in
sh~cor^^^ T. Xaurim, 1886, 17
L.R. Ir. 595; and see Robertsom v. Broadbent, X883, 8 A.C. 812; Bank of Ire-
land v. M‘Garthy (1898), A.C. 181.1
67