Collusive Suit-Trust created for the Purpose of Litigation.

The Court will not entertain a suit for the administration of a trust which has been created for the purpose of obtaining a trial, in an indirect manner, of the question of legitimacy or illegitimacy of an infant(per Westbury, L.C.)

Gurney v. Gurney (1) dissented from.

In 1863 a sum of 1,000l. stock was settled in trust for the children or child of the marriage of W. R. C. C. with H. E. T., and in default of any such child, in trust for the benefit of C. E. S. C. and his children. At the date of the settlement the marriage had been dissolved, and there was one child, whose legitimacy it was the avowed object of the settlement to try, by means of a suit for carrying out the trusts thereby created. C. E. S. C. then filed a bill against the child and the trustee of the settlement praying that the trusts of the settlement might be carried into execution, and that it might be declared that there was no child of the marriage. The child disclaimed all interest in the trust fund; and it appearing that the settlor had no interest in the question of legitimacy or illegitimacy, and that neither W. R. C. C. nor H. E. T. desired to raise the question, Wood, V.C., distinguishing the case from that of Gurney v. Gurney, dismissed the bill with costs; and upon appeal to the Lord Chancellor (Westbury) his Lordship affirmed the decree, expressing at the same time his dissent from the principles and reasoning on which the decision in Gurney v. Gurney was founded.

Under the will of the late Sir W. Bryan Cooke the family estates in the neighbourhood of Doncaster, of about the annual value of 8,000l., were settled upon his eldest son Sir W. R. C. Cooke for life, with remainder to his male issue in tail, with remainder to his brother Charles Edward

(1) 1 Hem. & M. 413; s. c. 32 Law J. Rep. (N.S.) Chanc. 456.

Stephen Cooke and his male issue in tail, with remainder to the female issue of Sir W. R. C. Cooke in tail, with remainder to the female issue of C. E. S. Cooke in tail, with remainder to Isabella Cecilia Cooke, the daughter of the testator for life, with remainders over. Sir W. R. C. Cooke was married on the 17th of April 1855 to Harriet Eloise Trebeck, and he and his wife cohabited together till May 1861; but no child was born during the cohabitation. On the 23rd of May 1861 Lady Cooke left her husband's house, and had not cohabited with him since. On the 14th of March 1862 she left the country with a Mr. Elmsall, with whom she had since cohabited. In June 1862 Sir W. R. C. Cooke instituted a suit in the Divorce Court for a dissolution of the marriage, making Mr. Elmsall a co-respondent; and on the 21st of November following a decree nisi was pronounced for the dissolution of the marriage, and the co-respondent was condemned in costs. On the 8th of December 1862, a female child (the infant defendant) was born to Lady Cooke, and on the 17th of March 1863 the decree for the dissolution of the marriage became absolute.

There being no male issue either of Sir W. R. C. Cooke or of C. E. S. Cooke, the female child of Lady Cooke would, if legitimate, be presumptively entitled in tail on the decease of Sir W. R. C. Cooke and Charles Cooke; and it became important to the parties who would be entitled in default of issue of Sir W. R. C. Cooke, that the legitimacy or illegitimacy of such child should be at once determined. In order to raise the question, Lady Cooke, the mother of Sir W. R. C. Cooke, caused a sum of 1,000l. 31. per cent. consolidated Bank annuities to be transferred into the name of a trustee, and executed a deed of declaration of trust, dated the 2nd of December 1863, whereby she declared that the trustee, his executors, &c., should stand possessed of the 1,000l. 3. per cent. annuities, and the income thereof, in trust for all the children then living of the marriage of Sir W. R. C. Cooke and Harriet Eloise Trebeck in equal shares, and if there were only one child then living of the said marriage, then for that one child; and after a proviso for maintenance and education

during minority, the deed contained a declaration that if there was no child then living of the marriage, the trustee for the time being should pay the income of the trust premises to Charles Edward Stephen Cooke, the brother of Sir W. R. C. Cooke, during his life, and after his death, if he should by deed, either before or after marriage, or by will or codicil, so appoint, to any widow of C. E. S. Cooke during her life, and, subject thereto, should hold the trust premises and income thereof upon certain trusts for the benefit of the children of C. E. S. Cooke, and on failure of the said trusts, in trust for C. E. S. Cooke, his executors and administrators.

Charles Edward Stephen Cooke then filed his bill against the infant child and the trustee of the above-mentioned deed, praying that the trusts thereof might be carried into execution by the Court, and that it might be declared that there never was any child of the marriage of Sir W. R. C. Cooke and H. E. Trebeck, and that the plaintiff was entitled to an immediate life interest in the trust funds of the said deed, and that the dividends might be ordered to be paid to him forthwith.

Upon the case coming on to be heard before the Vice Chancellor Sir W. P. Wood, the Vice Chancellor (the guardians of the infant, by their counsel, disclaiming all interest in the fund), dismissed the bill, with costs (2).

(2) His Honour's judgment was as follows."It appears to me that this case is one of very grave importance with reference to the course of procedure of the Court and the authority to be assumed, and it is one which seems to me to overstep the limits which may be permissible to raise a question of legitimacy in the manner in which it is here proposed to be raised. I thought in the case of Gurney v. Gurney, and I still adhere to the opinion, that the father of several children being desirous of ascertaining the status of his children, for whom he would have to provide according to their condition in life, was entitled to take that course, although obviously raising the trust for the express purpose of having the question decided, and that the Court was bound to execute such a trust, unless it could see any ground of public policy on which the Court would refuse to act. It did appear to me that in the case of a parent desirous of ascertaining the position of his family, himself denying in the strongest terms the legitimacy of the child attempted to be imposed upon his family, the parent was in a position in which, though he had that object entirely in view, he was entitled to come here and ask for a decla

From this decision the plaintiff appealed.

Mr. Giffard and Mr. Godfrey Lushing ton, for the appellant, relied upon Gurney v. Gurney, ubi sup.

At the close of the appellant's argument, the Lord Chancellor directed the case to stand for judgment, unless he should afterwards intimate a desire to hear counsel on the other side.

Mr. Overend, of the Common Law Bar, Mr. Bagshawe, for the infant defendant, and Mr. Roundell, for the trustee, were not called upon to support the Vice Chancellor's decission.

The LORD CHANCELLOR (May 10).The settlement or declaration of trust upon which this suit is founded is a fraudulent instrument; that is to say, it was prepared and executed for a purpose different from that which is expressed and apparently intended by the instrument. In the first place, it was not the desire or the real object of the parties to make a bona fide settlement of the property, or to confer any benefit on the infant defendant. The settlement was intended only to serve as a reason occasion for the institution of this suit, the object of which is to bastardize the infant. Secondly, the refusal of the trustee, on which the suit pretends to be instituted, was wholly collusive and unreal. Thirdly,

or

ration in respect of the trust which he had created for the express purpose of ascertaining whom among his family he was to regard as his children, and whom it would be his duty to educate and bring up as such. I then stated that every case of this kind, involving always a very delicate exercise of jurisdiction, must be tried upon its own circumstances. I put an extreme case undoubtedly, in which the Court would not exercise such jurisdiction. The case I have before me is an intermediate case; still it seems to me to range in that class of cases in which the Court ought not to act. The case of Da Costa v. Jones (3) was an extreme case, where the parties simply and wantonly entered into a wager having no right or interest in the subject-matter, and being probably actuated by the worst motives. That was an extreme case, in which obviously the Court would have refused to act, even though a trust had been created.

"But the case I have before me is the case of a child born in wedlock, the mother not calling in

(3) Cowp. 729.

there is no real controversy, for there is no opposition of interest; the infant, who alone has a contrary interest under the trust to that of the plaintiff, by her counsel very properly disclaims and repudiates all right and title under the settlement.

question the legitimacy of the child, and the father declining to assert anything with reference to its illegitimacy; it is merely the case of a child born in wedlock whose paternity is not disputed either by one parent or the other. That being so, the trust now framed is a trust by the grandmother for the benefit of a second sou of her family: it is a trust created of a sum of 1,000l. for the express purpose of having it determined by the Court whether that child is legitimate or not, the particular form of the trust being for the children of the elder brother, and in default of such children, for the benefit of the second son of the family, the position of the family being that there is a settlement by which the father of the child is tenant for life, with remainder to his issue in tail male, with remainder in default of issue male to his brother, the plaintiff, for life, with remainder to his issue in tail male, with remainder over to the issue female of the elder brother. That issue female, therefore, might take the property in case there should be a failure of issue male of her father and of the issue male of the present plaintiff. The interest is extremely remote, therefore, as affecting the particular plaintiff. Of course, as regards the grandmother, who makes the settlement, she has no further interest in it than the honour of the

family. I give her credit for every possible good motive in the course she has taken. She naturally, as the mother, feels deeply interested in the honour of the family. That is the only direct interest she can be said to have in calling in question the legitimacy of this child.

"Now, the case seems to me to be brought to this. The case of Gurney v. Gurney was somewhat new in its species as to where one should draw the line with reference to a trust so created for such a purpose, and it appears to me certainly that the line ought to be drawn to this extent, that where both parents are alive-I say nothing as to cases where either parent may be dead-and the child is born in wedlock, and neither of the parents disputes the legitimacy, I must say that it is a case in which it appears to me, whatever may be the motives or the interest of the family, that it is not competent to those who occupy a collateral position altogether with reference to the family and the interest of the family, to raise a question which neither the father nor the mother thinks of raising for the purpose of having the status of the child declared. In this case there is not only an absence of concurrence, but it goes a little further; because, in the first paragraph of the affidavit (which is not very properly filed in this case to answer the purpose of cross-examination) the grandmother and the mother state this: that the father 'both before and at the time of the execution of the said settlement and of the filing of the bill, refused, and to the best of our knowledge and belief still refuses to concur in or be a party to the execution of the said settlement,

Fourthly, the suit pretends and affects to be instituted for the purpose of determining the alleged right or claim of the infant defendant to this small trust property, but in reality it is concocted for the purpose of compelling the present trial, in an indirect

or the raising of the question of the legitimacy of the infant defendant by means thereof, or of this suit or otherwise.' The father, therefore, the child being born in wedlock, entirely declines to agitate the question of legitimacy. On the former occasion, in addition to the case of Da Costa v. Jones, and the observations of Lord Mansfield, to which I on the present occasion refer as guiding me to the course I am now taking, I referred from memory to a case in which I said a legacy had been left to a lady on condition of chastity. I have since found it reported, but very shortly indeed, and I think it is not altogether clearly stated in the report. It is the case of W. v. B. (4). The testator in that case gave his personal estate to trustees, upon trust as to one-fourth to pay the yearly and other dividends and proceeds thereof into the proper hands of T. W. the younger, to the intent that the same might be a provision for his personal maintenance and support during his natural life, if he should not have, in his the testator's lifetime, married or cohabited with or have had any child or children since the year 1825, or after his decease he should not marry or cohabit with Susannah B. and Harriet B, or any other of the daughters or daughter of G. C. B, then or late of F, in the county of Kent; and in the event of his doing this a forfeiture occurred, and from and after any such forfeiture should have taken place the testator directed his trustees to lay out the same, and after the decease of T. W. the younger (that might look as if there were no intermediate gift in trust) upon certain trusts for the widow of T. W. except as aforesaid and his chil dren by any other woman or women. He married one of those ladies, and the question was whether his interest had ceased. The Court held that it had not ceased; but no reason was given. This was the case I had before my mind, because I remembered it at the time I was giving judgment in the case of Gurney v. Gurney. It is simply put thus: "The counsel for T. W. the younger asked to have the dividends paid.' One case merely was cited, the case of a gift over in the event of a marriage with a particular person, which is good. The forfeiture of a gift in the event of a marriage with aný particular person is perfectly good. Then, the Master of the Rolls held that T. W. was still entitled, and ordered accordingly. That is all that is stated, but I remember that the ground was this, that the Court could not enter into an inquiry as to whether or not the person had cohabited with any of these ladies without being married to them, and therefore considered the whole of the forfeiture entirely void. It would not enter into such a question, and it held the legacy to be good and the condition attached to it void. It was a mistake of mine to say that it was a legacy to a lady; it was a

(4) 11 Beav. 621.

way, of a most important question affecting the title to large estates, namely, the status of legitimacy or illegitimacy of the infant.

It is wholly contrary to the principles which govern the administration of justice that any person should be permitted by means of en unreal trust, designed and created for the purpose, to force another person as defendant in a collusive suit to try prematurely and against his will an important right or title which has not yet arisen or come into question, so as to admit of its being brought forward and prosecuted in the regular and legitimate

costs.

Contract-Verbal Promise of Legacy— Consideration Statute of Frauds.

S, being an executor of G. and devisee of his real estate in trust for his children, induced the children to concur in the sale and conveyance of G.'s real estate to his own brother and partner, he himself being interested in the purchase, by a verbal promise to leave them by his will as much as or more than they would get under the will of G:— Held, that the 4th section of the Statute of Frauds did not apply, the promise being one which might possibly be performed within twelve months; that although the sale was necessary for payment of debts, and the full value was given, there was a sufficient consideration for the promise; and that the estate

legacy to a gentleman coupled with that particular form of condition. It was exactly on the same principle as that which governed the Court of Queen's Bench in the case of Da Costa v. Jones.

"It seems to me, therefore, that this is just such a case where one should stop, and that the right course to be taken is this. In the case of Gurney v. Gurney I did not allow the parties to get rid of it by what was then tendered, the payment of 1,000l. for the benefit of the infant, and a disclaimer. I should not have allowed it any more if there had been a disclaimer simpliciter, because if I thought the father had a right to have the question tried and discussed, I should have proceeded to adjudicate upon it whether there had been a disclaimer or not. But, considering this to be a case where the whole object is fairly stated, a case in which both the father and mother object, for, of course, the mother may be assumed to object, and the father distinctly and clearly says he objects to have any such issue raised, and counsel being perfectly at liberty and prepared on behalf of the guardians to disclaim such interest, and disclaiming accordingly, I shall dismiss the bill with costs. Unless I dismissed it with costs it might seem to cast some slur upon the parties which I am not entitled to do. No doubt it is a very trifling matter in that respect, a comparatively small object. It appears to me that I must not stir a single step in cases of this description (and on that ground I rest my decision), when there is an absolute refusal on the part of both parents to have any such question raised. Therefore, the guardians of the infant, by counsel, disclaiming all interest in the fund in question, I dismiss the bill, with costs.

This was a suit, instituted by the children of George Ridley, and by his widow as the representative of a deceased child, against the executors of Samuel Ridley, to obtain from Samuel Ridley's estate, in satisfaction of an alleged promise made to them by Samuel Ridley, the difference between the legacies given to them by Samuel Ridley's will and the amount of the clear residue of the estate of their father George Ridley.

G. Ridley, who died in August 1846, by his will, gave all his property to his brother Samuel Ridley, Mary Muchall Ridley his wife, and Thomas Eaton Landor, whom he also appointed executors, in trust for his wife during her life or widowhood, and upon her marriage or death to apply the income to the joint use of his children until the youngest should attain twenty-one, and then to divide the property equally between the children. The will was proved by all the executors.

George Ridley left six children, Elizabeth, Edward William, George Samuel, Mary Helen, Harriette Ann and John Richard, all of whom, except Elizabeth, were infants at the time of his death.

The personal estate of George Ridley was insufficient to pay his debts, and his

real estate consisted of a copyhold estate, which was subject to a mortgage for 4,000l.

Soon after the death of George Ridley, Samuel Ridley and Mary Muchall Ridley proposed that the copyhold estate should be sold to Edward Ridley, a brother of George and Samuel Ridley, who lived with and was a partner in trade with Samuel Ridley.

An interview took place between Samuel Ridley, Mary Muchall Ridley, Elizabeth Ridley and Edward William Ridley, at which, according to the testimony of the three last-named persons, Samuel Ridley promised that if Elizabeth and Edward William would concur in the proposed sale, he would leave them by his will as much or more than they would get by their father's will, and added that they might tell the younger children that he would do the same for them if they would concur, but would leave them nothing if they would not concur. Elizabeth and Edward William thereupon agreed to the proposed sale, and on the 30th of November 1846 a letter, prepared by the solicitor of the trustees and signed by Mary Muchall Ridley and her three elder children, was sent to Edward Ridley, inviting him to purchase the estate at a valuation. Edward Ridley accepted the offer, and the estate having been valued at 7,300l. was conveyed to him by an indenture, dated the 25th of March 1847, and made between the trustees of the first part, Mary Muchall Ridley of the second part, the six children of George Ridley of the third part, Edward Ridley of the fourth part, and a trustee for him of the fifth part. This deed was executed at the time by Mary Muchall Ridley, Elizabeth Frances Ridley and Edward William Ridley, who had then come of age, and contained a covenant by them to procure its execution by the infant children upon their coming

of age.

The plaintiffs alleged that this purchase was in fact made for the benefit of Samuel Ridley, or of the partnership, and that the purchase-money was paid out of the partnership funds, Samuel and Edward Ridley having lived together and kept no partnership accounts. In a case laid before counsel by the solicitor of the trustees with reference to the proposed

sale shortly before the conveyance, it was stated that Edward Ridley was in fact a purchaser on behalf of Samuel Ridley, and counsel advised that the concurrence of all the cestuis que trust was necessary for the protection of the trustees.

Shortly after the execution of this deed the estate of George Ridley was fully administered, and the residue was ascertained to be 1,1407. This sum remained for some years in the hands of Samuel and Edward Ridley, upon their personal security.

In 1849 George Samuel Ridley came of age and executed the deed, having been previously informed (as he and his mother asserted) of the promise made by Samuel Ridley.

Edward Ridley died in October 1852, having, by his will, dated the 22nd of October 1852, devised the copyhold estate to Samuel Ridley for life, with remainder to his own wife for life, with remainder to his children successively in tail. The plaintiffs alleged that this devise was made in accordance with the wishes of Samuel, and the allegation was to some extent supported by the evidence of the attorney's clerk who prepared the will.

In 1852 Samuel Ridley made a will by which he gave to the children of George Ridley legacies of unequal amounts, amounting in the aggregate to 1,1007.

In February 1853 Mary Helen Ridley, who had then come of age, was asked to execute the deed, but refused to do so without being assured that Samuel Ridley had carried out his promise. Mary Muchall Ridley thereupon called on Samuel Ridley and told him of her daughter's objection, and (as she asserted) was assured by him that he had left the children as much and more than they would get by their father's will. She repeated this assurance to Mary Helen Ridley, who thereupon executed the deed. Mary Helen Ridley died in 1853, and her mother took out administration to her estate.

In 1853 Samuel Ridley made a codicil revoking the legacies to the children of George in the event of any of them refusing to execute the deed.

In June 1856 Harriette Anne Ridley, who had come of age, executed the deed at the request and in the presence of