John Plews are the trustees: and whereas the said Ludvig Peter Christian Hansen hath received, to his own use, the share of his said wife in the residuary personal estates of her said father and mother respectively, and hath also received, from the said Sir Edward Banks and John Plews, the sum of 400 l., being part of the said sum of 900 l., which said sum of 400 l. was paid to him upon the understanding that he should settle, for the benefit of his said wife, the sum of 500 l., residue of the said sum of 900l.: and whereas, in pursuance of the said understanding, the said Ludvig Peter Christian Hansen hath requested the said Sir Edward Banks and John Plews to pay over the said sum of 500l. to the said William Miller and John Norman, for the purpose of being invested as hereinafter is mentioned, and which said last-mentioned sum the said Sir Edward Banks and John Plews have so paid accordingly; and the said William Miller and John Norman have, this day, invested the said sum of 500 7. in the purchase, in their names, of the sum of 573 l. 1s. 4 d. three per cent. consolidated bank annuities; and it hath been agreed that the said William Miller and John Norman shall stand possessed of and interested in the said sum of 5737. 1s. 4 d. three per cent. consolidated bank annuities upon and for the trusts, intents and purposes, and with, under and subject to the powers, provisoes, agreements and declarations hereinafter declared concerning the same." The deed then empowered the trustees to change, from time to time, the securities in which the trust-fund should be invested, with the Plaintiff's consent in writing during her life, and, after her death, at their own discretion; and declared that they should stand possessed of the securities in trust, until the Plaintiff should attain twenty-one, to pay and apply the income thereof in such manner for 1844. HANSEN v. MILLER. 1844. HANSEN 0. MILLER. her benefit, exclusively of her husband, as they in their discretion should think fit, and, after she should attain twenty-one, and during the remainder of her life, to such persons, and for such purposes only as she, notwithstanding her coverture, should, by any writing signed by her, appoint, but not so as to deprive herself of the benefit thereof by sale, mortgage, charge or otherwise in the way of anticipation, and, in default of appointment, to her for her separate use; and that, after her decease, the capital should remain and be upon and for such trusts and purposes &c. as she, notwithstanding her being under coverture, should, by her will to be signed and published by her in the presence of and to be attested by two witnesses, appoint, and, in default of such appointment, in trust for the person or persons who, under the statutes of distribution, would, at her death, be entitled to the fund in case she had died possessed thereof, a feme sole and intestate, and to be divided amongst them (if more than one) accordingly. The bill, after stating as above, alleged that the aforesaid settlement was made for the sole purpose of securing the 5737. 1 s. 4d. stock, to the Plaintiff, free from the control of her husband, and that no provision was thereby made for any child or children of the Plaintiff, and that she was the only party intended to be benefited and protected thereby; that the 500l. with which the stock was purchased, was the Plaintiff's property, and that the provision enabling her to dispose thereof by will, was intended only to give her power to bequeath the same during her coverture, and was not intended to control her power over the fund in case she should survive her husband: that, during his lifetime and since his death, the Defendants had paid the dividends of the stock to the Plaintiff; and that she was advised that, in the events that had happened, she was entitled to the capital, and, accordingly, had requested the Defendants to transfer it to her; but they had refused, pretending that she was entitled only to the dividends during her life, although they well knew that the settlement was made with the sole view and for the sole purpose of excluding Hansen's marital control over the fund, and not with the object or intention of interfering with the Plaintiff's control over it, in case she survived him. The bill prayed that the Plaintiff might be declared to be entitled, in the events that had happened, to have the stock transferred to her, and that the Defendants might be ordered to make the transfer. Mr. Bethell and Mr. Glasse, for the Plaintiff, said that the 500l. with which the trust fund had been purchased, was the Plaintiff's chose in action: that it had not been reduced into possession by her husband, but had been, merely, handed over by one set of trustees to another; and that the disposition that had been made of it, was voluntary, and, therefore, not good as against the surviving wife but, if the Court should consider that the husband had reduced the chose in action into possession and that the settlement was binding on his wife, then that, under the trusts of it, she was entitled to the fund, absolutely; for she had power to dispose of it by will, and, if she did not exercise that power, the fund was to go to her next of kin according to the statutes of distribution, which were words of limitation and not of purchase, and equivalent, in their effect, to executors and administrators. Robinson v. Dusgale (a), Godsal v. Webb (b). 1844. HANSEN V. MILLER. 1844. HANSEN V. MILLER. Mr. Stuart and Mr. T. H. Hall, appeared for the Defendants; but The VICE-CHANCELLOR, without hearing them, delivered the following judgment: It appears, from the recitals of the settlement, that Mrs. Hansen, on her mother's death, became entitled to certain sums in the hands of Banks and Plews, amounting together to 900l.; and, if those sums had remained in their hands, there could have been no doubt that Mrs. Hansen would have been entitled to them on her husband's death, as her choses in action which he had not reduced into possession. The settlement, however, recites that Mr. Hansen had received, from Banks and Plews, 4007., part of the 900/., which was paid to him upon the understanding that he should settle the residue of the 900 7. for the benefit of his wife; and that, in pursuance of that understanding, he had requested Banks and Plews to pay over the 5007. (which was the residue of the 9001.) to Miller and Norman, for the purpose of being invested as thereinafter mentioned, and that they had paid the same accordingly. Therefore, Hansen was to make the settlement; and Banks and Plews were to have no control over it: and they, at his request, paid over the 500l. to new trustees, who had been nominated by him, and were to hold the money upon new trusts. And my opinion is that the effect of that transaction, was to destroy, entirely, the character which the fund previously bore, namely, that of a chose in action of the wife. The other argument in favour of the lady's claim, was founded on the trusts of the settlement: I mean, the trust which gives her power to dispose of the fund by her will, and the ultimate trust in favour of her next of kin. But my opinion is that, as the law now stands, neither of those trusts can be held to enlarge the interest which she takes under the first trust (c). And, if the case of Robinson v. Dusgale is correctly reported, I must say that it would require a great deal of argument to satisfy me that it was rightly decided. Declare that, in the events which have happened, the Plaintiff is absolutely entitled to the dividends of the 573 l. 1 s. 4 d. consols during her life. The costs of all parties, as between solicitor and client, to be raised and paid out of the capital. And all parties to be at liberty to apply. The cause having been placed in the paper to be again spoken to, Mr. Bethell and Mr. Glasse cited Ryland v. Smith (d); Wall v. Tomlinson (e); and Glaister v. Hewer (ƒ); relying, principally, upon Ryland v. Smith; which they said was not distinguishable from the case before the Court and showed that the settlement was not binding on Mrs. Hansen, and that the character of the fund, as her chose in action, remained unaltered. The VICE-CHANCELLOR: The effect of what was done with respect to the funds in Ryland v. Smith and Wall v. Tomlinson, was, merely, to change the persons who were the holders of them: but, in the present case, Banks and Plews, as appears from the recitals of the settlement, paid 4007. part of (c) See Anderson v. Daw son, 15 Ves. 532. (d) 1 Myl. & Cr. 53. (e) 16 Ves. 413. (f) 8 Ves. 195. 1844. HANSEN T. MILLER. 23d April. |