Baron and Feme-Reversionary Interest in a Fund-Alienation-Surrender or Release-Petition. A sum of 2,000l. stock had become vested in trustees in trust for A. for his life, and after his decease in trust for his wife for her life, and after the decease of the survivor upon trust for their only child. The husband and child executed a surrender of their estates to the wife, and those three parties joined in a petition that the trust fund might be transferred to the son, and praying a transfer accordingly, or that such other order might be made as the nature of the case required. The Master of the Rolls, however, after consideration of the authorities cited, dismissed the petition, and the Lord Chancellor, upon appeal, affirmed the decision. Latchom v. Vincent (1) and Hall v. Hugonin (2) overruled. (1) Reported nomine Lachton v. Adams, 5 Law J. Rep. (N.s.) Chanc. 382. (2) 14 Sim. 595; s. c. 16 Law J. Rep. (N.S.) Chanc. 14. The particulars of this case, and the decision of the Master of the Rolls upon it, will be found reported in 17 Law J. Rep. (N.S.) Chanc. 151. The application was afterwards renewed, before the Lord Chancellor, by way of appeal. On the marriage of Mr. and Mrs. Henning, in 1822, a sum of 2,000l., to which she was entitled, was vested in trustees, upon trust for the husband for his life, and after his decease upon trust for the wife for her life, and after the decease of the survivor, upon trusts for the issue of the marriage as Mr. and Mrs. Henning should appoint. And a clause was contained in the settlement authorizing the investment of the trust fund in the purchase of freehold hereditaments, with the consent of Mr. and Mrs. Henning. The trust fund was invested in 31. per cent. consols. There was issue of the marriage one son only, John James Henning, who attained twenty-one in December 1846. In November 1847 Mr. and Mrs. Henning executed an indenture, by which they made an irrevocable appointment of the trust fund in favour of the son, subject to their own life interests. In March 1848 an indenture was executed between John James Henning of the first part, Mr. Henning of the second part, and Mrs. Henning of the third part, by which John James Henning assigned all his interest in the trust fund to Mrs. Henning, to the intent that the interest for the life of Mrs. Henning might merge in the immediate absolute interest of John James Henning therein. And by another witnessing part of the same indenture Mr. Henning assigned and surrendered his life interest to Mrs. Henning, to the intent that it should become merged and extinguished in the interest of Mrs. Henning immediately expectant thereupon, and that the said sum of consols should become absolutely vested in her in possession. Mr. and Mrs. Henning and their son joined in a petition praying that the trust fund might be paid to the son, and the Master of the Rolls dismissed the petition. Mr. Batten appeared in support of the petition, and repeated the arguments made use of in the court below. He cited the following authorities : Doswell v. Earle, 12 Ves. 473. Lachton v. Adams, 5 Law J. Rep. (N.S.) Chanc. 382. Bean v. Sykes, 2 Hayes on Conv. 640, 5th ed.; 14 Sim. 593, n. Hall v. Hugonin, 14 Sim. 595; s. c. 16 Law J. Rep. (N.S.) Chanc. 14. Box v. Box, 2 Con. & Law. 605. Bishopp v. Colebrook, 11 Jurist, 793. Story v. Tonge, 7 Beav. 91; s. c. 13 Law J. Rep. (N.s.) Chanc. 191. Wilson v. Oldham, 14 Sim. 594, n. Creed v. Perry, Ibid. 592. Purdew v. Jackson, 1 Russ. 1; s. c. 4 Law J. Rep. Chanc. 1. Stiffe v. Everitt, 1 Myl. & Cr. 37; s. c. 5 Law J. Rep. (N.S.) Chanc. 138. Dec. 21.-The LORD CHANCELLOR, after stating the nature of the case and the details of the transaction, said that the first thing the Court had to consider was, how the rights of the parties could be affected by the machinery which they had adopted. Under the settlement the wife was to have the dividends for her life, subject to the prior life interest of her husband, and therefore she had an interest in reversion which this Court would not allow her to part with during her coverture. How, then, could this interest of the wife be affected by the deeds which had been executed? Whatever protection the wife would be entitled to against the interest which her husband might take jure mariti, she would not be deprived of by such a contrivance as had been resorted to in the present case, otherwise it would not be practicable in many cases for a father to make any provision for his daughter so as to protect her against her husband. This Court had, however, adopted many rules for the protection of the wife, and so far interfered with the rights of the husband as to refuse him any assistance in obtaining property which belonged to his wife, unless he made what the Court considered a proper provision for her. If the property was reversionary the Court would not permit her to make a disposition of it, but refused to take her consent; that rule was laid down by Sir Thomas Plumer in Purdew v. Jackson. In Stiffe v. Everitt his Lordship (Lord Cottenham) had held that where a married woman had a life interest in property which was not limited to her separate use, the interest to which she would be entitled in case she survived her husband was of a reversionary nature, and therefore that the case was within the rule as to reversionary interests as laid down in Purdew v. Jackson. If this decision were correct, the husband and wife could not dispose of the trust fund; the husband was entitled to the dividends so long as the coverture continued; and if he died before his wife, she would then become entitled for her life. This Court certainly would not, if the case rested there, allow the husband, with or without his wife, to dispose of her reversionary in terest. But it was contended that in this case the wife had not a reversionary interest, but that she had a present interest for her life, with an absolute interest in remainder, and that the former was merged in the latter. But it assumed that her reversionary life interest had become merged in the estate which she took from her husband and her son, that is to say, that this Court would consider that an equitable merger had taken place for the purpose of depriving the wife of the protection which the Court was, in most other cases, so anxious to afford to her. In Hall v. Hugonin the Vice Chancellor stated that he did not put the case as one of merger. It was quite clear that there was no legal merger-Thorn v. Newman (3), Nurse v. Yerworth (4); and if there was no equitable merger the decisions in Purdew v. Jackson and Honner v. Morton (5) must regulate the present case, and the able argument of Mr. Rendall, in Hall v. Hugonin, shewed very strongly the claim of the wife to the protection of the Court in such a case. His Lordship referred to the observations of Sir William Grant in Richards v. Chambers (6) as bearing on the case now before him, and also to Doswell v. Earle, which was cited as an authority in support of the petition. The last-mentioned case related to the reversionary interest of a married woman, subject to a life interest; and the claim of the widow, who survived, was not sustained. But in Pickard v. Roberts the husband had a life estate, and his wife was entitled to the reversion expectant upon the determination of it, and there was no important difference between that case and the present one. (3) 3 Swanst. 603. (4) Ibid. 608. (5) 3 Russ. 65. (6) 10 Ves. 580. What the Court was now asked to do was opposed to that decision; but he should have thought that when a married woman had such an interest provided for her by a marriage settlement, the Court would not adopt such a plan as here proposed, as being in violation of the rules of this Court for the protection of married women; although, if the husband had any legal rights, the Court might not interfere with them. But in considering the recent decisions, his Lordship had the judgment of the Master of the Rolls in this case; and he had also his refusal to make such an order in Story v. Tonge. He had, on the other hand, several cases decided by the Vice Chancellor of England, giving effect to such claims. The first case is one on the 13th of August 1836, reported in 5 Law J. Rep. (N.s.) Chanc. 382, and the report stated that his Honour made the order for the payment of the fund and the Vice Chancellor having risen, the married lady, with her counsel, came before him (Lord Cottenham) to take her consent. The report was that he there said that the life interest had merged, and that the interest of the lady was no longer reversionary. He had no recollection of the transaction; but if the order had been made, and all he was asked to do was to take the consent of the married woman, it was not very probable that he should have entered into the merits of the case and if any such expression was used it was much more likely to have been used by counsel. Moreover the application was ex parte: and, at all events, if such expressions were made use of (which he greatly doubted) they were made without consideration, without argument, and without reference to any authority. The next case was one of Wilson v. Oldham (7), in which it might be presumed that some principle would be laid down. But there did not appear from the report to have been any union of interest or any possibility of merger. That was in 1841. In 1845 Creed v. Perry was decided, in which case there was a fund in court to which Ann Taylor was entitled for life, and her children were entitled to the principal after her death. One of them was a married woman, and her consent being taken in court, her share of the fund was paid to the husband. (7) 14 Sim. 594, n. Will, Republication of—Codicil. A testatrix, by her will, gave the residue of her real estate to trustees, in trust for her nephew for life, and, afterwards, for his children. She subsequently purchased certain leasehold property, which was conveyed to a trustee to such uses as she should appoint; and by a codicil she appointed the leaseholds in trust for her said nephew and his children. After this the testatrix purchased the reversion in fee of the leaseholds, which was conveyed to another trustee to such uses as she should appoint. The testatrix then made a second codicil to her will, whereby, in pursuance of all powers in her vested, she revoked a specific devise in her will, but expressed no intention of affecting the property purchased subsequently to her will:-Held, that the second codicil did not act so as to re-publish the will. That the leasehold and reversion in fee did not pass under the gift of the residue, but descended to the heir-at-law. This case came on upon petition for liberty to except to the Master's report. The suit was instituted for the administration of the estate of the Countess of Winterton, who, having power under her marriage settlement to dispose of her separate property, made her will in March 1823, and thereby gave, devised, and appointed certain glebe lands, which were contained in her marriage settlement, and all the messuages, lands, tenements, hereditaments, and real estate, whatsoever and wheresoever, which she had in anywise power to give, devise, direct or appoint, or otherwise dispose of for any estate of freehold and inherit ance in possession, reversion, remainder or expectancy, unto and to the use of R. Board, J. Eldridge and J. Hanley, their heirs and assigns for ever, in trust for her nephew W. Crawford and his assigns, during his life, and, after his decease, for his children, in manner therein directed. The testatrix, after making her will, purchased out of her separate estate the residue of a term of ninety-nine years in certain leasehold property, which was assigned to R. Board, his executors, administrators, and assigns, in trust to pay the rents thereof to her for life, and then to convey the same to such persons and in such manner as she should appoint. The testatrix made a codicil to her will, dated in 1828, and thereby, in exercise of the power reserved to her in the assignment of the leaseholds, demised, bequeathed, directed, limited and appointed the said leasehold premises unto the trustees of her will, their executors and administrators, upon trust to sell the same, and stand possessed of the proceeds upon trust for the said W. Crawford and his assigns during his life, and after his death in trust for his children, in manner therein directed, and the testatrix ratified and confirmed her said will in every other respect. After the date of this codicil the testatrix purchased the reversion in fee of the before-mentioned leasehold property, and the conveyance was made unto and to the use of John Jones, his heirs, and assigns for ever, upon trust to pay the rents, issues, and profits arising therefrom to the testatrix during her life, and after her decease to such persons as she should by deed or will direct or appoint, and in default thereof upon trust to convey the said hereditaments, upon her decease, to her heir-at-law in fee. The testatrix subsequently made another codicil, dated the 7th of October 1829, and thereby, in virtue of the power given her by her marriage settlement, and of all other powers and authorities enabling her in that behalf, revoked her will so far as it related to the glebe lands mentioned therein, and devised the same to the said R. Board in fee. The testatrix died in April 1831, and the said W. Crawford was her heir-atlaw. The trustees, in pursuance of the directions contained in the first codicil, sold the estate of which the testatrix had purchased the leasehold interest and the reversion, and paid to the said W. Crawford the sum of the 500l. as the proceeds of the sale, upon belief that the term had merged in the reversion, and that it had not been disposed of by the testatrix, but had descended to him as heir-at-law. This suit having been instituted for administering the estate of the testatrix, the Master made his report, and stated that the trustees were not justified in paying the sum of 500l. to W. Crawford, for that the property had been vested in the trustees for the benefit of W. Crawford and his children. A petition was now presented for liberty to except to the Master's report. Mr. Rolt and Mr. Elmsley appeared in support of the petition; and— Mr. Bethell, Mr. Lewin and Mr. Rogers for other parties. - Nov. 12. The VICE CHANCELLOR. This is rather a singular case, and it stands in this way: the testatrix in question was a married woman, and by virtue of her marriage settlement she had the power of disposing of certain property, and I shall, for the sake of distinction, call that power the settlement power, and that property the settlement property: and having that power, she made her will on the 21st of March 1823, according to the power, and thereby made some specific appointment in the nature of a specific devise, and made a disposition of the residue in full execution of the power. After that she purchased a leasehold tenement, and that leasehold tenement was assigned to Board in trust for her, virtually for her separate use, giving her a power of appointment. She then, in execution of what I will call the leasehold power, made a codicil of the 21st of April 1828, by which she disposed, in the nature of a specific bequest, of that leasehold. She then purchased the reversion in fee of the leasehold, and that reversion was conveyed not to Board, but to Jones, a different trustee, in fee, in trust for her separate use, giving her a power of appointment. She then made what was called the second codicil, but, in fact, on looking over the Master's report, it turns out to be a third codicil of the 7th of October 1829; and that codicil in terms refers only to that portion of the specific property which was the subject of the first settlement; and the instrument in question was executed in pursuance of the settlement power, and the language is, I admit, "and of all other powers in her vested" (and it could not be well otherwise); and in pursuance of the settlement power, and of all other powers in her vested (although it does not appear she had any other power which would affect that specific property specifically appointed and devised by the first will, except the original power), she revokes the testamentary appointment in the nature of a specific bequest which she had made by will, and makes a different disposition of the property; and that is the whole of the third codicil, and there is not one word or expression in it which goes to shew that she intended that there should be any other alteration whatever in the effect of her testamentary appointment, save and except that which was confined to the specific object of revoking the first specific bequest. Now it appears that upon a reference to the Master to see what had become of certain money which arose from the sale of divers tenements, the Master had treated a surplus sum, or some fractional part of 500l., as if it did under the circumstances that I have stated, necessarily belong to the residuary appointees in the first testamentary instrument; and he has gone on the supposition, as I collect from Mr. Rogers's argument, that, inasmuch as the lady did make this third codicil, it had the effect of making the will speak from the date of the first codicil as to the residuary devise in the will. Well, suppose it had, in the first place, the residuary devise in the will was nothing more than an appointment of the residue of the settlement property, after dealing with the specific part which was first appointed; but the truth is, that in order to make the will speak from its date, so as to vest the property in the residuary appointees under the will, you must find a clear intention to execute the power which affected the reversion of the leasehold tenement for that purpose. Now, there is not a single allusion whatever, either to the power which was reserved, for the purpose of enabling the lady to appoint the leasehold in question, or of enabling her to appoint the reversion in question. And my opinion therefore is, that being the only point which has been made as a matter of law against the claim of Mr. Rolt's clients, who have presented a petition for the purpose of correcting the blunder in the report, my opinion is, that that blunder has been untouched and uncorrected, and it remains as a blunder, which must be set right on this petition. I have read through the whole of the Master's report, and it appears to me the Master has taken notice certainly of the will and the different codicils; but it does unfortunately happen that this particular view of the subject presented by Mr. Rolt, which I think is the correct view, never was presented to the Master's mind; consequently there is an error in the ultimate finding, which error, however, is capable of being corrected, by duly adverting to the instrument which is embraced in the body of the report, and consequently it does appear to me that this was a proper case to be brought before the Court by way of petition for leave to except, for it is quite immaterial in what form the Court hears the discussion. If the report had been brought forward without any attempt of that kind, still it would have been competent for the party to have made the argument. But I think there is a great deal of reasonableness in allowing a petition to be presented which, stating the facts of the case in detail, and with as much clearness as this petition, does shew at once to the Court what is the true view to take of the case; and it appears to me it is not necessary to send it back to the Master; and, therefore, I shall at once direct on hearing this petition, that that sum which constitutes the real sum due to Mr. Rolt's client should be paid to him, or retained by him, whatever the proper form of words may be; and then my opinion is, that the costs of this petition ought to be paid by those who are Mr. Rogers's clients. |