[163] FRY v. CAPPER. Dec. 16, 1853.

[S. C. 2 W. R. 136. Observed on, In re Teague's Settlement, 1870, L. R. 10 Eq. 564 ; In re Cunynghame's Settlement, 1871, L. R. 11 Eq. 327; In re Ridley, 1879, 11 Ch. D. 650; Shute v. Hogge, 1888, 58 L. T. 546; Whitby v. Mitchell, 1889, 42 Ch. D. 502 ; 44 Ch. D. 85.]

Power of Appointment among Children. Restraint upon Anticipation.

Under a power of appointment of a trust fund among children, in the usual form, the share of a married daughter, who was unborn at the creation of the power, was limited to trustees, upon trust for her separate use, for life, without power of anticipation, and, after her decease, to her general appointees by deed or will, and, in default, to her executors or administrators.

Held, that such an appointment was not void as fettering the property beyond the legal limits, but that the restraint upon anticipation might be rejected, and the rest of the appointment sustained.

By a settlement, dated the 14th of August 1792, and made one month after the marriage of John Fry and Honnor, his wife, John Fry covenanted to pay to the trustees thereof a sum of £2000, to be held by them upon the trusts (therein declared) of a sum of £1000, which was covenanted to be paid to them by the mother of his wife, and which were as follows::- "In trust to pay or permit the said John Fry (the husband), and his assigns, to have, receive and take the dividends, interest and annual produce of the said £1000, for and during the term of his natural life; and from and immediately after the decease of the said John Fry, in trust to pay or permit and suffer and sufficiently authorise and empower the said Honnor Fry his wife, and her assigns, to have, receive and take [164] the dividends, interest and annual produce of the said sum of £1000 to her and their own use, for and during the term of her natural life; and from and immediately after the decease of the survivor of them, the said John Fry and Honnor his wife, then in trust for all and every the child or children of the body of the said John Fry, on the body of the said Honnor his wife to be begotten, in such parts, shares and proportions, and in such sort, manner and form, and with, under and subject to such powers, provisoes, conditions, restrictions and limitations (such limitations over to be for the benefit of some or one of such child or children), as the said John Fry and Honnor his wife shall jointly, by any deed or deeds, writing or writings, to be by them sealed and delivered in the presence of two or more credible witnesses, or in default of such joint appointment as the survivor of them shall, by any deed or deeds, writing or writings, to be by him or her sealed and delivered in the presence of two or more credible witnesses, or by his or her last will and testament, to be by him or her signed, sealed and published in the presence of the like number of credible witnesses, direct, limit or appoint; and in default of some such direction, limitation or appointment, and as to such part or parts thereof whereof no such direction, limitation or appointment shall be made, then in trust to pay or transfer the said sum of £1000 unto and amongst all and every the child and children of the body of the said John Fry on the body of the said Honnor his wife to be begotten, equally to be divided between or amongst them if more than one, share and share alike, and if there shall be but one such child, then to such one child, for his, her and their portion and portions: the said sum of £1000, or so much thereof whereof no such direction, limitation or appointment shall be made as aforesaid, and the parts and shares thereof, to be transferred or paid to such children or child in the manner following, that is to say, the part or share, parts or shares [165] of such of them as shall be a daughter or daughters, shall be transferred or paid to her or them at her or their age of twenty-one years, or day or days of marriage, which shall first happen; and the part or share, parts or shares of such of them as shall be a son or sons, shall be transferred or paid to him or them at his or their age of twenty-one years, unless such time or respective times of payment shall happen in the lifetime of the said John Fry and Honnor his wife, or of the survivor of them;

and in such case the part or share, parts or shares of such of them as, being a daughter or daughters who shall have attained (during the life of the said John Fry and Honnor his wife) the age of twenty-one years, or be married, or, being a son or sons, shall then have attained that age, shall become a vested interest or vested interests in him, her or them respectively, and be transmissible to his, her or their executors, administrators or assigns, and shall be transferred or paid immediately after the decease of the survivor of them, the said John Fry and Honnor his wife; and if any such child or children, being a daughter or daughters, shall happen to depart this life under the age of twenty-one years and unmarried, or, being a son or sons, shall depart this life under the said age of twenty-one years, then the part or share, parts or shares of him, her or them so dying shall go and be paid to the survivor or survivors of them, and the executors, administrators, or assigns of such of them being dead, who, being a daughter or daughters, shall have survived the said John Fry and Honnor his wife, and have lived to attain the age of twenty-one years, or be married, or, being a son or sons, shall have survived the said John Fry and Honnor his wife, and have lived to attain the said age of twenty-one years, at such time or times as his, her or their original share or shares shall become payable or transferable, or as soon afterwards as circumstances will permit. And it is the true intent and meaning of these presents, and of the said parties, that all and [166] every the share and shares so directed to survive and accrue shall from time to time survive and accrue, together with the original share and shares, until such original share and shares shall by virtue of these presents become vested. And upon this further trust, that the said Jasper Capper and William Christopher Hancock, or the survivor of them, or the executors or administrators of such survivor, shall and do in the meantime, after the decease of the survivor of them the said John Fry and Honnor his wife, pay and apply the dividends, interest and annual produce of the said sum of £1000, or so much thereof as to them the said Jasper Capper and William Christopher Hancock, or the survivor of them, or the executors, administrators, or assigns of such survivor shall seem proper, for and towards the maintenance and education of such children or child, until their respective shares, or his or her share of the principal money shall become payable, in proportion to their respective shares and interests therein. And in case there shall be no child of the body of the said John Fry on the body of the said Honnor his wife begotten, or there being such, if every such daughter depart this life under the said age of twenty-one years and unmarried, and every such son shall also depart this life under the said age of twenty-one years, or in the lifetime of the said John Fry and Honnor his wife, or either of them, then in trust to pay or transfer the said sum of £1000, and the securities and funds wherein the same shall be then invested, to the survivor of them the said John Fry and Honnor his wife, to and for his or her own proper use and benefit."

The said sum of £2000 was afterwards paid to the trustees, and invested in the purchase of £2230 £3, 10s. per cent. Reduced annuities.

John Fry died in 1810, and no joint appointment of the said £2000 or any part thereof was ever made by him and his wife.

[167] His widow, the said Honnor Fry, received the dividends on the said funds. up to the time of her decease.

Honnor Fry, after the death of her husband, by her will and testament in writing, dated the 1st of November 1845, after reciting the said indenture, and that there were only six children of her marriage then living, her daughters thereinafter named, continued as follows:-"I do, by this my last will and testament, in exercise and execution of the power or authority to me in this behalf given by the said indenture of the 14th of August 1792, and of every other power or authority enabling me in this behalf, direct, limit and appoint that the said" trustees of the settlement, "and the survivor of them, and the executors and administrators of such survivor, and the trustee or trustees for the time being of the said £2230 £3, 10s. per cent. Reduced annuities, shall, from and immediately after my decease, stand possessed thereof, and of the stocks, funds, monies or securities to arise therefrom, or in which the same or any part thereof may from time to time be invested, and the interest, dividends and annual produce to arise therefrom respectively, from and after the day of my decease, upon the several and respective trusts, and for the intents and purposes following;

that is to say, upon trust to apportion the same respectively for the benefit, in equal shares, of such of my before-named daughters, Honnor Frances Fry, Mary Craig Fry, Anne Jane Fry, and Julia Maria Fry, Hannah Westcott Prior, and Ellen Cornelia Neatherway, who shall be living at the time of my decease, such respective apportionments to be transferred and paid in manner hereinafter provided. And I do hereby direct that the said " trustees, "and the survivor of them, and the executors and administrators of such survivor, and the trustees or trustee for the time being of the said trust funds and monies shall stand possessed of the respective shares of the said last-mentioned trust funds [168] and monies, and of the dividends, interest and annual produce thereof, which shall be apportioned to my before-named daughters Hannah Westcott Prior and Ellen Cornelia Neatherway, upon trust, during the joint lives of my said daughters respectively and their respective husbands, and if my said daughters respectively shall survive their respective husbands, then during the respective lives of my said daughters, to pay to them, my said daughters respectively, or to such person or persons as they respectively, whether covert or widows, shall from time to time in that behalf, but not by way of anticipation, appoint in writing under their respective hands, the interest, dividends and annual produce of their respective shares of the said trust funds and monies, for their respective sole and separate use and benefit, exclusively of their respective husbands, and without being liable to the debts, control or engagements of any of their husbands or husband respectively, the respective receipt or receipts of my said daughters respectively, whether covert or widows, for the same, or, as to the part or parts thereof respectively appointed as aforesaid, of the respective appointee or appointees thereof, to be alone a valid discharge or valid discharges for the sum or sums therein respectively acknowledged to be received." And after the decease of the daughters respectively the will declared the trusts of their respective shares to be for their respective appointees by deed or will, and, in default, for their executors or administrators respectively.

Honnor Fry, the testatrix, died on the 3d of January 1853.

There were several questions submitted in a special case to the Court; of which one was whether the appointment by the will for the benefit of the married daughters of the testatrix was valid.

[169] Mr. Willcock, Q.C., and Mr. Wodehouse, for the Plaintiffs, the surviving daughters of the testatrix.

Mr. Daniel, Q.C., and Mr. Surrage, for some of the Defendants.

Mr. E. F. Smith, for the assignees in bankruptcy of the husband of Hannah Westcott Prior, argued that the restraint upon anticipation of the daughters' life interests would have infringed the rule against perpetuities if inserted in the settlement, and that it therefore rendered the appointment for them void.

Mr. Smale, for other parties.

Mr. Willcock, in reply.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. In this case there has been an appointment for the benefit of married women, for their separate use, with a clause restraining them from anticipation; and this is said not to be authorised by the power, because, although the appointor might have limited a share in the fund for life to a daughter who was unborn at the creation of the power, inasmuch as such daughter, together with those entitled to the fund subject to her life interest, might at any time dispose of it; yet, by an appointment in this manner to a married daughter, she is restricted, probably during her whole life, from disposing of the fund, and it is therefore tied up for a period which infringes the rule against perpetuities; and it is said that the appointment is consequently void.

I should feel difficulty in deciding this question adversely to the appointment, looking to the decision in Thorn-[170]-ton v. Bright (2 My. & Cr. 230); for, in that case, although this particular point does not seem to have been argued, there was precisely the same limitation made by a will in execution of a power in favour of a married woman who was unborn at the time of the creation of the power; and the appointment was decided by Lord Chancellor Cottenham to be a valid exercise of the power. Therefore, independently of principle, it would be difficult for me, after that decision, to hold this appointment to be bad. But, upon principle, I think that Mr. Willcock has given the proper answer to the objection. In the case of an appointment

under a power, the Court looks to the scope and intent of the power; and, in appointments by will (Brudenell v. Elwes, 1 East, 451) of real estate (not of personalty: Routledge v. Dorril, 2 Ves. jun. 364), has by the doctrine of cy près, given effect to them against the very words of the instrument, and has enabled grandchildren, who were not objects of the power, to take under a limitation to a child for life, with remainder to the children of such child, by treating the first taker as a tenant in tail; and because the words of the appointment would otherwise have been wholly inoperative, the Court has thus given effect to it in the mode in which it can take effect legally (Pitt v. Jackson, 2 Bro. C. C. 51). Therefore, in an instrument made in execution of a power of appointing among children only, if the Court finds an appointment of a share to one child, with a direction that such share shall be dealt. with in this way, the Court may reject that part of the limitation which exceeds the legal limits. According to Bray v. Hammersley (3 Sim. 513; affd. in D. P. nom. Bray v. Bree, 2 C. & F. 453), this is in other respects a good appointment to the children who are objects of the power (1); but if the restriction be not rejected, it [171] is said that it will make the whole void. Rather than decide that, the Court will reject the limitation, and thus leave the rest of the appointment valid. In the words of Lord Mansfield, in Chapman v. Brown (3 Burr. 1626, cited 2 Sugd. Pow., 7th edit. p. 59): "Where there is a limitation for life to a person unborn, with remainder in tail to the first and other sons, as they cannot take as purchasers, but may as heirs of the body, and as the estate is clearly intended to go in a course of descent, it shall be construed an estate tail in the person to whom it is given for life,' And by analogy to this cy près doctrine, although the donee of the power cannot appoint to grandchildren, nor to persons unborn in the manner in which he has attempted to limit the property, yet the Court will so modify the limitation as to make it effective in the manner in which it may take effect according to the power. The argument on this point, in Thornton v. Bright (2 My & Cr. 230), suggests the decision to which the Court would probably come that, if necessary, the Court would reject this limitation, and treat the appointment as being a settlement for the benefit of the daughter, without the restraint upon anticipation. The point is ingenious, and would deserve, perhaps, more consideration if it were open to me. However, if Thornton v. Bright (Ibid.) had not decided the question, I think that I should have come to the same conclusion independently of that authority.

There must, therefore, be a declaration, that the will of Honnor Fry is a valid execution of the power of appointment.

[172] NEATHERWAY v. FRY. Dec. 16, 1853.

Will. Construction. Power of Appointment not Governed by Substitutionary Clause. Bequest of residue in trust, after the death of the testator's wife, to be divided amongst all his children, including his son A., if then living, in such manner and in such proportions as the testator's wife should by will appoint, provided that the share assigned to A. should not be less than those of any of the other children; and, in default of appointment, to be divided equally among all the testator's children living at his wife's death, including his said son A. Moreover, if any child should happen to die previously to the death of the testator's wife, leaving children, such children to have the "share" of their late parent. And if all the testator's children should die under age, and without leaving children, gift over. The wife appointed the fund by will amongst all the children who should be living at her death. A. died in her lifetime, leaving children. Held, that the power was well exercised in favour of the surviving children of the testator, and that the clause commencing "moreover" did not apply to the preceding limitation, but only to the gift in

(1) The Vice-Chancellor had decided this upon the other objections to the appointment, by referring also to the authorities of Boyle v. The Bishop of Peterborough, 1 Ves. jun. 299; and Butcher v. Butcher, 1 V. & B. 79.

V.-C. XIV.-3*

default; and therefore A.'s children were properly excluded. Fox v. Gregg, 2 Sugd. Pow., App. No. 23, distinguished.

John Fry, by his will dated the 26th of August 1803, appointed his wife Honnor executrix, and Booth Hancock and John Capper, or the survivor or survivors of them, executors of that his will; and after appointing them guardians of his children, he confirmed the settlement of a sum of stock made on his marriage with his said wife ; and after giving certain specific and pecuniary legacies to his said wife, and to Alfred Augustus Fry, his son by a former marriage, the testator disposed of the residue of his estate in the following words :-"I give and bequeath all the rest and residue of my effects not already especially given and bequeathed to my said executrix Honnor and my said executors Booth Hancock and John Capper, or so many of the three as shall survive me, in trust for the following especial purpose, that is, that when all the previous bequests and purposes of this will shall be completely fulfilled, the remaining sum of money shall be, by my said trustees or the survivor or survivors of them, invested in such way as to them shall seem most beneficial, and the interest and income thereof shall be paid as it arises to my said wife Honnor, for the maintenance, support and education of all our children, during the term of my said wife's natural life; and the principal thereof shall be divided, at her death, amongst all my children, including my son Alfred Augustus aforesaid, if then alive, and also including, if then alive, our daughters Honnor Frances, Hannah Westcott, Mary Craig, Anne Jane, Julia Maria and Susannah Hancock, together with any other child [173] and all such children as may be hereafter born of my said wife Honnor before my death, if then alive, or any child or children that may be born of my said wife Honnor within nine calendar months next succeeding the day of my decease, in such manner and in such proportions as my said wife Honnor may by will direct; provided only, that the share or part assigned to my said son Alfred Augustus shall not be smaller or less than the share or part assigned to any one of my said wife Honnor's own children; and that if my said wife Honnor shall neglect or omit to make any such appropriation thereof, then and in that case it shall be divided equally, share and share alike, amongst all my children living at the time of my said wife Honnor's decease, including my said son Alfred Augustus, if then alive. Moreover, my mind and will is, that if any child or children should happen to die previously to the death of my said wife Honnor, but having been married and leaving a child or children issue of such marriage, then such child or children shall have and enjoy the part or share, parts or shares, respectively of their late parent so dying before the death of my said wife Honnor. And further, I do will and direct that, should all my children die under age, and without having been married, or without having had children who shall have survived them, and neither I nor any of my children should leave a posthumous child lawfully begotten in wedlock, then and in case that all the clauses in this my last will and testament, intended for the benefit of any such child or children, shall be construed for the sole use and benefit of my wife Honnor aforesaid."

John Fry died in 1810, and Honnor Fry, Booth Hancock and John Capper proved the will on the 3d of November 1810.

Honnor Fry made her will, dated the 1st of November [174] 1845, and thereby, after reciting the said will of John Fry, and that there were then living the said Alfred Augustus Fry, and also six children of her marriage with her said husband, namely, Honnor Frances Fry, Mary Craig Fry, Anne Jane Fry, Julia Maria Fry, Hannah Westcott, the wife of Henry Prior, and Ellen Cornelia, the wife of James Neatherway; Susannah Hancock, another of such children, and late the wife of Thomas Duthoit, having some time since died; and that the balance remaining in the hands of herself and her co-executors of the monies which arose from the residue of her said husband's personal effects, leases and real estates, were then invested in the names of herself and her co-executors, partly in £3, 10s. per cent. Reduced Bank annuities, and partly in New £3, 10s. per cent. Bank annuities; and that, upon the marriage of her said daughter, Hannah Westcott Prior, part of the said stock was sold, and the proceeds thereof, amounting to the sum of £100 sterling, were paid to her said daughter or to the said Henry Prior, her husband, in her right; and that the said Booth Hancock and John Capper were both of them dead, and the sum of £4415,