1853. NEATHERWAY v. FRY. Judgment. the gift in default. Mr. Russell says, that the subsequent (a) Sugd. Pow., App., No. 23. 1853. V. FRY. Judgment. not give anything, by his will to the children of deceased children who might be then dead; and, therefore, the di- NEATHERWAY rection could not be applied solely to the gift in default, which must be to persons in esse; and the testator directed that the children of cousins who were then dead or should die in his wife's lifetime should stand in the place of their parents. That clause, however, does not contain the word "share" which occasions the difficulty in this case. It only provides that the children shall stand in the place of their parents. The testator had given to his wife a power of appointment among cousins; then he recollects that he may have had cousins who may have died, or may afterwards die, leaving children; and he directs that such children should be put in the place of their parents who so died; and the Court held, that the direction applied to the power, and that the execution was bad, because no proper appointment was made to the children of the deceased cousins. I think that that is extremely wide of the case now before the Court. The testator here attempted to provide for Alfred, and omitted one contingency. Alfred survive the wife, and the wife should make an appointment, he is to be included; if Alfred should die in the lifetime of the wife leaving children, and the wife should make no appointment, Alfred's children are to take his share. There is a third case, which has happened, namely, that Alfred has died in the lifetime of the wife, and she has made an appointment, and in that case no provision is made for Alfred or his children. It frequently occurs, even in wills constructed with elaborate care, that some one of the numerous contingencies to which human life is subject, is in this manner unforeseen and unprovided for. There must be a declaration that none but the surviving children took under the appointment; and the costs of all parties, as between solicitor and client, must be paid out of the fund. If 1853. Dec. 20th & 23rd. Statute-Con struction Power of presenting to a THE ATTORNEY-GENERAL v. THE EARL OF POWIS. KING EDWARD the Sixth, by letters patent dated the 10th of February, in the sixth year of his reign, A.d. 1552, Living-" Cæteris paribus” referred to Qualifications before mentioned. By the 38 Geo. 3, c. lxviii., intituled An Act for the better government and regulation of the Shrewsbury School, the preamble of which recited certain grants to the bailiffs and burgesses of Shrewsbury, including that of the presentation to the living of St. Mary, as having been made for the advancement of the school, and referred to certain rules and ordinances touching the revenues and government of the school (some of which rules prescribed that the persons from time to time appointed to serve the ministry in the church of St. Mary should be such a fit man as had been brought up at the school, and a graduate, being a burgess's son of Shrewsbury, if any such could be found); and also recited, that many of the existing rules had been found inexpedient; and that it would tend to the advancement and good of the school that other rules better adapted to the present situation of the school, and more calculated for the due management of its revenues, should be established: it was enacted, that the existing rules should be repealed; and, amongst other things, it was declared, that the right of nomination to St. Mary's was in the mayor, aldermen, and assistants of Shrewsbury, and their successors; and it was enacted, that they should appoint" a fit and proper person duly qualified according to law," provided that in such appointment such person should be preferred, cæteris paribus, who should have been brought up at the school, and should be a graduate, and also the son of a burgess of Shrewsbury; and if there were no burgess's son of that description, then a preference should be given in like manner to such person of the above description born in C. Except that it should be lawful to bestow the living upon either of the masters of the said school after he should have resigned his mastership, notwithstanding any such claim or preference as aforesaid; and that such master should be capable of holding the living "equally the same as if he had been of the descrip tion hereinbefore mentioned:"-Held, that the words "cæteris paribus" in the statute referred to the previously specified qualification of being fit and proper, and duly qualified according to law, and not to the general qualifications of a candidate for the duties of a clergyman. In construing an Act of Parliament or any other instrument the Court is at liberty to regard the state of the law at the time, and the facts which the preamble or recitals of the Act or instrument prove to have been the existing circumstances at the time of its preparation. Construing this statute by the aid of the preamble, it was intended to benefit the school; but it would not be a benefit to the school, if, by the words "cæteris paribus," the scholars, in the competition for these livings, were to be brought into comparison with any other candidates who might offer, and the trustees were directed to choose out of all the candidates the one whom they might think possessed the highest qualifications for the office of a clergyman. Such a trust would be extremely vague and unsatisfactory, and might lead to an absurd result, for the general qualifications for holy orders are so numerous, and the trustees might differ so much as to their relative importance, that it might happen that they would concur to elect some person not a scholar, each for a different reason, when all thought the school candidate to be superior in every respect save that which influenced their respective votes. The direction to the trustees to appoint a "fit and proper person" is not mere surplusage, but restricts their choice within narrower limits than that of an ordinary patron, who may appoint any one, subject only to the bishop's power to reject the nominee; for instance, these words would render it improper for the trustees to appoint a very old man, which the bishop could not prevent. The words "cæteris paribus" are necessarily limited by the subject to which they apply. In this statute they were applied not to the qualifications of a schoolmaster, or any other profession but that of a clergyman, and there is authority as well as reason for limiting these words further to those qualifications only which were previously specified in the Act; and although the word "paria" implies comparison, yet, as no mode of examination was suggested in the Act, and as the power of nomination was given to a body not peculiarly well fitted to conduct such an examination, and it was not required in terms that they should select the most fit person, it was most probably the intention of the legislature that the words should be so limited. upon the petition as well of the bailiffs and burgesses and inhabitants of the town of Shrewsbury, as of other his subjects of the whole neighbouring country, granted that there should be a grammar school in the said town, which should be called "The Free Grammar School of King Edward the Sixth," for the education and instruction of boys and youths in grammar; and he thereby founded such school, to consist of one master and one under-master. And the King further granted to the bailiffs and burgesses of the town and their successors certain tithes then lately belonging to the then dissolved college of the Blessed Mary in Shrewsbury aforesaid, and certain other tithes, formerly belonging to the then lately dissolved college of St. Chad, in Shrewsbury, to hold to the said bailiffs and burgesses, and their successors, by fealty in free soccage. And he granted to the said bailiffs and burgesses, and their successors, full power to appoint a master and under-master of the school whenever the said places should be vacant; and that the said bailiffs and burgesses, with the advice of the Bishop of Lichfield and Coventry for the time being, might make fit and wholesome statutes in writing, touching and concerning the order and government of the masters and of the scholars of the said school, and the salary of the masters, and of other things concerning the school, and the ordering and disposition of the revenues appointed and to be appointed for the support of the said school; and the King declared that the rents and profits, as well of the tithes and premises thereinbefore granted, as of all other hereditaments thereafter to be acquired, should be wholly converted and disposed to the support of the said school for ever. By an indenture, dated the 23rd of May, in the 13th year of the reign of Queen Elizabeth, A.D. 1571, and made between the said Queen of the one part, and the said bailiffs and burgesses of the other part, the Queen, as well for the advancement and maintenance of the said Free Gram 1853. ATT.-GEN. v. EARL OF Statement. 1853. ATT.-GEN. v. EARL OF Statement. mar School, as for the maintenance of the service of God |