SHAW

v.

LAWLESS.

the bill which Lawless had filed. He was pleased to declare, that as to so much of the suit as related to evidence of the fitness of Lawless for the situation, each party should pay his own costs, but that as to the rest, the bill should be dismissed with costs. The cause was afterwards reheard before Lord Chancellor SUGDEN, who was of opinion that the judgment which had been pronounced by his predecessor was not correct, and he therefore reversed it, declaring that Lawless was entitled to act as agent for the estates then held, and likewise for those that might in future be purchased, and the costs of the suit were given to him. These two conflicting decisions naturally brought the case to your Lordship's Bar, and it was argued, when my noble and learned friend (Lord BROUGHAM) was present; and I am happy to say, that we entirely concur in our conclusions as to the conflict between the two decisions. There was a great variety of cases cited, and the grounds on which the title of Lawless was rested were, that the words in the will created a trust in his favour; that the testator, who had an undoubted right to dispose of the estate as he thought proper, had given an interest in it to Lawless, whom he described as his friend, and of whose conduct he spoke in terms of strong approbation. The question for your Lordships to consider is, whether these words *amount to [ *153] a trust, or only to an expression of opinion and advice.

All the cases upon a subject like this must proceed upon a consideration of what was the intention of the testator. Now the first observation that strikes one with reference to that matter is, that during the life of the testator Lawless was his agent. But then he was agent only during the testator's pleasure, and, by the terms of the will, the testator desired that he should continue in the agency. Is that desire to be considered a command? if so, for what length of time is he to continue? If he is to continue to act as agent, the natural presumption is, that he is to continue on the same terms as during the life of the testator. If so, that is during the pleasure of the holder of the estate. But then that negatives the presumption of an estate or interest created by the words of the provision, and vested in this respondent. The appellant

SHAW

v.

LAWLESS.

[ *154]

[155]

is the tenant for life; he has the legal estate. If Lawless' title is what it has been argued to be, he has an equitable charge on the legal estate of Shaw; and as he is to have the usual fees of 5 per cent. the result would be, that Lawless would not only be an equitable incumbrancer to that amount, but would have a right to manage and direct the estate, and would have full power over the conduct of the property. If so, the testator must have intended that Shaw, to whom he gave the estate for life, should not have the direction of his own estate, for the two powers of direction and management are inconsistent with each other. He must be taken, on this view of the case, to have intended that the legal devisee for life should not have the management, but that the equitable incumbrancer on the real estate should have the control and management of the property. But the trustees of the will are, during a considerable *part of the time, to have not only the management of the estate which the testator devised, but are authorised and directed to lay out part of the personalty, the residue, in the purchase of other lands. If Lawless is the equitable incumbrancer to the amount of one-twentieth part of the income of the estate, he has a clear interest in the residue, for he might take onetwentieth part of the residue; he might file a bill in Chancery in order to control the application of the residue, and claim to be absolutely invested in what he is entitled to receive, namely, this one-twentieth part. When your Lordships see to what extent, and I might almost say to what absurd extent, this construction of the will necessarily leads, you cannot hesitate in coming to the conclusion that it is at least very doubtful how far this could possibly have been the intention of the testator.

There is, it is true, a great variety of cases in which the expression of a wish has been held to create a trust; but the rule of construction in these cases is, that there should be certainty in the object and in the subject of a trust so created; that the expressions in the will should not leave the matter in a doubtful ambiguity. [His Lordship then referred to the cases which had been cited, but held them to be inapplicable to support the respondent's case, and he concluded his judgment by saying: It is true that all that the Court requires is, that the

subject and the object shall be defined and certain. Then what is the subject in the present case? It is the right to be employed in the receipt of the rents and the agency and management of the land of another person upon the usual fees. What is the necessary effect of this alleged right? It goes to exclude Shaw from the management of his own estate, or from the receipt of the rents themselves. Then this question arises: Suppose that he parts with the estate, would it, in the hands of a purchaser, be subject to the same liability to this claim of agency on the part of Lawless? Was it the desire or the wish of the testator that it should be so? or did he merely wish that his devisee should employ a man whose conduct had given satisfaction to himself? Some cases of difficulties of another kind were put in the course of the argument. It was asked, among other things, whether, if a testator should say that he desired his son to be educated at a particular school, that would create a trust in favour of the schoolmaster? That would certainly be a matter for the advantage of the schoolmaster, but it could not be contended that he would have a right to enforce the performance of this desire of the testator. It would be an expression of desire made for the benefit not of the master but of the scholar.

The cases arising out of the wills relating to the Bridgewater and the Dudley Estates have been referred to, but they do not apply to the present case.

Having examined all the cases, and quite satisfied myself that there is not a case which comes at all near the present,-I mean, indeed, that all are against the construction contended for by the respondent,-I am of opinion that the judgment pronounced by Lord PLUNKET was correct, and I am of opinion that the decree of Lord Chancellor SUGDEN must so far be reversed.

Then as to costs. Thinking as I do, that the claim of the respondent was unfounded, I think that the appellant should be indemnified for defending himself against that claim to the extent of taxed costs, but that he should not have the costs of that part of the case which related to the fitness of Lawless for the situation; for as it was said in the Court below, the case R.R.-VOL. XLVII. 4

SHAW

v.

LAWLESS.

[ *156 ]

SHAW

v.

LAWLESS.

1836. April 28. 1837.

June 19. Nov. 27, 30. Dec. 1, 4, 7.

Lord COTTENHAM,

L.C. Lord LYNDHURST. [163]

[164]

might have been argued on demurrer, and that question need not have been discussed; I think, therefore, that that part of the decree was correct, and I move your Lordships accordingly. I ought to add, that I am instructed by my noble and learned friend to say that he concurs with this judgment.

Order accordingly.

APPEAL FROM THE COURT OF CHANCERY.

MORRIS v. DAVIES (1).

(5 Clark & Finnelly, 163-269; S. C. 1 Jur. 911; affg. 3 Russ. 318; 8 L. J. Ch. 120.)

Legitimacy-Evidence.

A husband and wife, after living together for ten years, and having one child, agreed to separate. They accordingly afterwards lived apart, but within such distance as afforded them opportunities of sexual intercourse, the husband not being impotent: Held, that the presumption of law in favour of the legitimacy of a child begotten and born of the wife during the separation, may be rebutted, not only by evidence to show that the husband had not sexual intercourse with her, but also by evidence of their conduct, such as that the wife was living in adultery, that she concealed the birth of the child from the husband, and declared to him that she never had such child; that the husband disclaimed all knowledge of the child, and acted, up to his death, as if no such child was in existence; and also, that the wife's paramour aided in concealing the child, reared and educated it as his own, and left it all his property by his will.

The doctrines laid down in the Banbury Peerage case, examined and approved of, and held applicable to this case.

THE question in this case was, whether the appellant was the legitimate son of William Morris, late of Argoed, in the county of Montgomery, deceased, and of Mary Morris. In the year 1778 William Morris, then of Shrewsbury, surgeon, and about 30 years of age, was married to Mary Gwynne, who was about 17, with consent of her mother and guardian, her father being dead. By indentures of lease and release made previous to the marriage, certain estates in Montgomeryshire, belonging to William Morris, and to his uncle Thomas Morris, were settled, subject to life estates for them respectively, and to an annuity of 100l. for the intended wife for her life in bar of dower if she should survive her said intended husband, and

(1) The Aylesford Peerage (1885) 11 App. Cas. 1; Burnaby v. Baillie (1889) 42 Ch. D. 282, 297; 58 L. J. Ch. 842; 61 L. T. 634.

have issue; and also to a term for raising portions for younger children; to the use of the first and other sons of the marriage, in tail general, with divers remainders over, with ultimate remainder to William Morris in fee. And by the same indentures and by a recovery, which was suffered in 1781, when Mrs. Morris attained the age of 21, certain other estates, her property, situate at Llanfair, in the said county, were settled to like uses, subject to certain incumbrances in the indentures mentioned, and to a provision for younger children, and an annuity for Mrs. Morris for life if she should survive Mr. Morris. They lived together in Shrewsbury for ten years, during which they had one child, the respondent Harriet Davies, who was born in 1781. They separated in 1788, and by an indenture then executed by them and a trustee for the wife, reciting, among other things, that in consequence of unhappy differences they had agreed to separate, and that their said daughter should be under their joint control, and educated at their joint expense, Mr. Morris secured to his wife, for her own support and maintenance, the rents and profits of certain property therein described, situate at Llanfair (formerly her own property), producing about 400l. a year, for the time they should continue to live separate. Soon after the execution of this indenture Mrs. Morris went to reside at Llanfair, taking with her some of the servants, among whom was a young man named William Austin, and Mr. Morris went to reside at Argoed, which was between 14 and 15 miles from Llanfair.

On the 5th of January, 1793, Mrs. Morris was delivered of a child (the appellant), who was taken immediately after his birth to Wem, in Shropshire, about 30 miles from Llanfair, and given to the father and mother of William Austin, poor persons, by whom he was brought up for several years in ignorance of the circumstances of his birth. Ann Evans, a servant of Mrs. Morris, and Ann Gwynne, a relation, were the only persons present when he was born. By the same Ann Evans and William Austin he was taken to Wem. He was there baptized as "a base child" by the name of Evan Williams, and to that entry in the parish register was added a note that he was supposed to be the child of a son of Edward Austin, a weaver

MORRIS

v.

DAVIES

[ *16 ]