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Married Woman-Equity to a Settlement-Real and Personal Estate-Election -Compensation as to Part.

Under the settlement made upon the marriage of M, his daughter C. became upon his death, subject to the rights of her husband, tenant in tail in possession of certain real estate and absolutely entitled to a share of personalty. M. by his will gave to C. an annuity of larger value than her share under the settlement for her separate use, which she was required to accept in lieu of her share under the settlement. C.'s husband was an insolvent, and his assignee refused to give up her husband's interest in the settled property: -Held, that as to the share of personalty, which was outstanding in trustees, the Court, electing on C.'s behalf to take under the will, could order it to be made over in accordance with the testator's directions, but that, as to the realty, the Court could not affect the estate which had passed to the assignee, and that C. must make compensation to the amount of rents and profits withheld.

At the date of the settlement next hereinafter stated, Henry, late Lord Maynard, was seised in fee of the freehold and copyhold hereditaments and absolutely entitled to the personal estate therein specified.

Under this settlement, made upon Lord Maynard's marriage, certain freeholds stood limited immediately before his death to the use of Lord Maynard for life, with remainder to the use of the children of the marriage, in such shares and for such estates as Lord Maynard should by deed or will appoint, and in default of appointment to the use of such children as tenants in common in tail, with cross-remainders between them, with an ultimate remainder to the use of Lord Maynard in fee; and certain copyhold estates were settled by way of trust in a similar manner; and two sums of stock were vested in trustees upon trust for Lord Maynard for life, and after his decease for the children of the marriage, as he should appoint, and in default of appointment for such children equally, the shares of the sons to be vested at twentyone, of the daughters at twenty-one or marriage.

There were five children, one son and four daughters, of the marriage who at tained twenty-one. One of them died in February, 1865, without issue, and another of them, Charlotte, in the year 1834 intermarried with Adolphus Capel; no settlement was made upon the marriage, and as there had been issue of the marriage, Adolphus Capel was by the curtesy tenant for life of the real estate. Charlotte Capel and her husband were still living.

In 1850, and again in 1855, Adolphus Capel took the benefit of the Insolvent Debtors Acts then in force, and all his property became vested in Mr. Stansfeld, as provisional assignee.

Lord Maynard, by his will, dated the 29th of April, 1843, gave to Mrs. Capel an annuity of 1,2007. a year for her life, for her sole and separate use, and he declared that the provision made by his will for his son and daughters should be accepted by them respectively in full for any share or interest they might have in the property comprised in his marriage settlement, and that they respectively should execute such instruments and do such other acts as his trustees might think requisite for relinquishing such shares, it being his wish and intention that the same settlement so far as regarded his son and daughters, and any interest thereby given to them, should be annulled and made void.

The general residue of the testator's property was given to the trustees upon certain trusts in the will mentioned.

Lord Maynard died on the 19th of May, 1865.

The share coming to Mrs. Capel under the settlement was of much less value than the annuity given to her by the will, and, besides, was not secured to her separate use. Mrs. Capel had therefore declared that she accepted the annuity in full of her share and interest under the settlement, and that she was willing to do all necessary acts for relinquishing the latter to the trustees of the will. The assignee of her husband, however, alleged that all the interest which Mrs. Capel or her husband in her right took under the settlement was now vested in him, and he disputed Mrs. Capel's right to oust or disappoint him or Mr. Capel's creditors by her election.

Mr. Capel was willing to concur with his wife in executing a disentailing deed.

This was a petition by the trustees, praying, amongst other things, a declaration as to the course which they ought to take in reference to Mrs. Capel's annuity.

Mr. Rolt and Mr. Faber, for the petitioners.

Mr. W. M. James and Mr. Freeling, for Mrs. Capel. It is clearly for Mrs. Capel's benefit to take under the will in preference to the settlement, and the Court will elect for her accordingly.

Mr. Osborne and Mr. Briggs, for the assignee of Mr. Capel.-As to the personal property comprised in the settlement, we admit that it is subject to the wife's equity. The Court may therefore give up for her whatever it would settle upon her and her children. As to the real estate, however, the case is different, for the limitations of the freeholds are legal and the estate of the husband in right of his wife is actually vested in the assignee, and the Court cannot compel him to convey away his estate. Pulteney v. Lord Darlington, 7 Bro.

P.C. edit. Toml. 546, 547; s. c. 2 Ves. jun. 544, 560.

Gretton v. Haward, 1 Swanst. 409, see p. 413, note.

Brodie v. Barry, 2 Ves. & B. 127.

1 Roper on Husband and Wife, p. 30, note (2nd edit.).

Mr. Amphlett, Mr. Walford, Mr. Schomberg, Mr. Dewsnap and Mr. M. W. Hunter, for other parties.

Mr. W. M. James was heard in reply to the argument of Mr. Capel's assignee.

WOOD, V.C.-As to the personal estate, subject to the settlement, it is not reduced into possession, for the fund is outstanding in trustees. The Court can, therefore, lay its hands upon this fund and say, that, as the benefit of the wife requires, it must be made over to the trustees of the will. But as to real estate, I cannot divest the estate of the assignee. To that extent, therefore, the Court is unable to elect on Mrs. Capel's behalf in favour of the will, and she must therefore, to that extent, make compensation to the trustees of the will.

The minutes declared that Charlotte Mary Capel, electing to take the annuity

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Henry, late Lord Maynard, by his will, dated the 29th of August, 1843, devised his real estates to the use of his son Charles Maynard for life, with remainders over. The will provided that it should be lawful for the said Charles Maynard, at any time during his life, and for every other person thereby made tenant for life of the said estates, as and when they respectively should be entitled to the possession or to the rents and profits of the same estates, by any deed, or by their respective last wills, or any codicil or codicils thereto, to appoint unto all or any of their respective children, and whether he, she or they should then have attained the age of twenty-one years or not, any annual sum of money not exceeding 4001. for each of such children, to be issuing out of and charged upon all the said estates, and to be paid to such children during their respective lives. And the said Charles Maynard was further empowered to limit a term to trustees for better securing the payment of such annuities.

The said Charles Maynard, by a codicil, dated the 1st of December, 1864, after reciting that his father, Lord Maynard, who was then living, but who had authorized

him to see his will, had devised his real estates to the use of him Charles Maynard for life, with remainders over, and after reciting the power of charging given to him by the said will, and that he was desirous of exercising the said power in manner thereinafter expressed, so as effectually to charge the said estates with such provision for his children as thereinafter mentioned younger in case he should survive his father, fully believing that in the event of his dying in his lifetime, whoever might become entitled to the estates under the will would feel in honour bound to give effect to that his wish and desire, did in exercise of the said power so given to him, and of every other power enabling him in that behalf, thereby limit and appoint to every child of his living at his decease (other than an eldest child), the clear annual sum of 4007. to be payable to him or her during his or her natural life, the same to be issuing out of and charged upon the estates of his father, which he was empowered to charge therewith, and to be recoverable in the same manner as rents in arrear are recoverable by landlords upon a common demise.

Charles Maynard died on the 2nd of January, 1865, leaving two infant daughters, Frances Maynard and Blanche Maynard, who were still living, and no other children.

Lord Maynard died on the 19th of May, 1865.

The 33rd section of the Wills Act, 7 Will. 4. & 1 Vict. c. 26, is as follows: "And be it further enacted, that where any person, being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will."

Doubts had been suggested whether, under this section, the will of Charles Maynard did not operate as a valid execution in favour of Blanche Maynard of the power expressed to be given to him in

NEW SERIES, 35.-CHANC.

his father's will, and the present petition asked for a declaration as to this point.

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Mr. Osborne and Mr. Briggs, for Blanche Maynard, argued that the power of charg ing, being an emolument annexed in privity" to the tenant for life's estate1 Sugd. on Powers, 6th edit., 44, was an interest within the purview of the section

Thomas v. Jones, 2 Jo. & H. 475; s.c. 1 De Gex, J. & S. 63; 31 Law J. Rep. (N.S.) Chanc. 732; 32 Ibid. 139.

Johnson v. Johnson, 3 Hare, 157; s. c. 13 Law J. Rep. (N.S.) Chanc. 79. Jones v. Southall, 30 Beav. 187; s. c.

30 Law J. Rep. (N.S.) Chanc. 875. Mr. Rolt and Mr. Faber, Mr. Amphlett and Mr. Walford, Mr. Osborne and Mr. Briggs, Mr. Schomberg, Mr. Freeling and Mr. Everitt, for other parties.

WOOD, V.C.-In Thomas v. Jones the power was contingent when the donee exercised it; that is a different case from the present, in which the power had not been created. The whole question turns upon the 33rd section of the Wills Act, a provision which does not seem peculiarly well framed for the purpose which the legislature had in view, since if a son of the testator were insolvent and died leaving issue who survived their grandfather, the son's creditors, not his children, would be the parties benefited. Now, I am not satisfied that the power in question falls under the designation of an estate or interest; but if it does, I am clearly of opinion that it is an estate or interest determinable at the death of the donee. I shall make a declaration that the annuity of 400l. a year is not effectually appointed.

Solicitors-Messrs. F. H. & H. H. Walford, for petitioners; Messrs. Capron, Brabant & Dalton; Mr. A. H. Clapham; Messrs. Ellis & Ellis; Messrs. Hunter, Gwatkin & Hunter; Messrs. Walker & Jerwood, for parties served with petition and notice of decree.

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Power of Appointment-Bankruptcy Act, 1861-Trust-Deed for Benefit of Creditors -Subsequent Appointment to Debtor.

In November, 1861, A, being one of the objects of a power of appointment of a fund, to a share of which he was also entitled in default of appointment, executed a deed in the form of Schedule D. of the Bankruptcy Act, 1861, conveying all his estate and effects to a trustee for the benefit of his creditors. The deed was duly registered. In 1864 the donee of the power made an appointment by will, in A.'s favour, of the same share of the fund as A. would have taken in default of appointment :-Held, that by virtue of the appointment A. was entitled to the share of the fund therein comprised as against the trustee of the deed of November, 1861.

In November, 1861, Frederick Vizard, by a deed in the form comprised in Schedule D. of the Bankruptcy Act, 1861, conveyed all his estate and effects to E. P. Shute for the benefit of his creditors. The deed was afterwards duly registered.

At the date of the deed F. Vizard was one of the objects of a power of appointment vested in his aunt of a fund under the will of her deceased husband, and he was also entitled under that will to a vested interest in one fifth part of a moiety of the same fund in default of appointment.

In 1865 the aunt died, having, by will, dated in 1864, appointed, in F. Vizard's favour, one fifth part of a moiety of the fund, being the same share thereof as he would have taken under his uncle's will in default of appointment.

The trustee under the will of the aunt had paid F. Vizard's share of the fund into court, under the Trustee Relief Act; and this was a petition by F. Vizard for the payment of that share to him.

The question was, whether the petitioner, by virtue of the appointment, or the trustee of the deed, was entitled to the fund in court.

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of the filing and registration of the deed of November, 1861, was available to the petitioner as a protection in bankruptcy. Then, was this after - acquired property? At the date of the deed F. Vizard had a defeasible interest in the fund. That interest was divested by the appointment, and he thereby acquired a new interest. The case, however, was governed by Lee v. Olding, 25 Law J. Rep. (N.S.) Chanc. 580.

They also referred to—

Ex parte Gibbins, 13 W. Rep. 1001; s. c. 34 Law J. Rep. (N.s.) Bankr. 39. Sugden on Powers, 8th edit. 78.

Mr. Malins, for the trustee of the deed.

The petitioner took no new interest under the appointment. The share which was appointed to him was the same as that which was given to him by his uncle's will in default of appointment.

[STUART, V.C.-Can it be said that the appointee did not take under the appointment; that he did not thereby acquire a new title?]

Mr. Malins.-If the donee of the power had appointed a different share from that which the petitioner would have taken in default of appointment, the petitioner would then have taken under the appointment; but as matters now stood he took under the limitation in default of appoint

ment.

Mr. Pearson, also for the trustee of the deed. The power of appointment was not a general power, but merely a power of distribution, and the appointment must be incorporated with and read as part of the will, according to the ordinary rules applicable to the construction of powers.

Mr. Roxburgh, for the trustee of the will of the testator's widow.

STUART, V.C.—I see no reason whatever for altering the view which I took of the law in Lee v. Olding. In the present case the argument lies in a very narrow compass. No doubt, some difficulty appears to exist from the fact that the appointment gives to the appointee neither more nor less than he would have taken in default of appointment. But the appointment was made by an instrument, duly executed according to the power, by a person having authority

to execute it; and who by it purported to appoint the property, and did in fact appoint it, to persons who were the very objects of the testator's bounty. How, then, can the Court say that an instrument which is a proper exercise of a power by the donee thereof in favour of the objects of the power is inoperative merely because it gives those objects the same interest as they would have taken in default of appointment? The apparent difficulty of the case is to be solved by the reasoning found in Lee v. Olding, which I think contains a sound exposition of the law applicable to this case. There is no authority to justify me in saying that the instrument purporting to exercise the power of appointment given by the will of the testator, is not a valid exercise of that power; and I must, therefore, declare that the petitioner is entitled to the fund in court, and make an order for payment to him accordingly. The trustee of the will of the testator's widow must have his costs out of the fund in court.

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After the act passed, John Russell, by an agreement in writing duly signed, contracted with the company for the sale to them of the said pieces of land for 2,550l.

The purchase-money was paid, the company were let into possession and accepted the title; but before the conveyance was executed John Russell died intestate as to the land the subject of the agreement, leaving an infant heir-at-law.

The company now presented a petition, alleging that John Russell was at the time of his death a trustee of the land in question, and praying that a person might be appointed to convey it to them under the Trustee Act, 1850.

The petition was not served upon the heir-at-law.

Mr. Taylor, for the petition, said that a similar order had been made in

In re the Manchester and Southport
Railway Company, 19 Beav. 365.

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