trustees, was to substitute them for the original trustees, in every respect. The VICE-CHANCELLOR : If I felt any doubt upon the question in this case, I should take time to consider it: but I do not entertain any doubt at all upon it. What the object of the parties to the settlement was in procuring new trustees to be appointed, does not appear. Probably they thought that the new trustees would be able to exercise the power of sale: but, in that, they were mistaken. The Court of Chancery has, no doubt, jurisdiction to appoint new trustees of an instrument, where a proper case for the exercise of that jurisdiction, is made out; and parties dealing with them, and paying them money, will be perfectly safe. But, here, the question is what power the Court has to alter the effect of a settlement made under the Statute of Uses. I am of opinion that It may appoint new the Court has no such power. When the settlement was executed, the estates were to go, in a course of legal devolution under the Statute of Uses, to certain persons for life, and to others in tail, in succession: and the question is how can that be got rid of? Why by nothing but a stipulation, by the parties themselves who made the settlement, that there should be a power to get rid of the uses. The getting rid of them, is an act in derogation of what was done before; 1851. NEWMAN v. WARNER. 1851. NEWMAN บ. WARNER. and a power for such a purpose, must be always strictly pursued. : Here the power was given to A. and B. and the survivor of them and the executors and administrators of such survivor and that power is now attempted to be exercised, not by A. and B. or the survivor of them or the executors or administrators of the survivor, but by persons to whom the survivor has transferred the estatestransferred them, it is true, under the sanction of the Court; and, therefore, the parties claiming under the settlement, cannot find fault with him for what he has done. But does that give to the parties to whom the property has been transferred, a power which the parties to the settlement did not stipulate that they should have? My opinion is that, according to all the authorities, it did not. Nothing can be so strong as the case of Townsend v. Wilson. And, even supposing that case to have been wrongly decided by the Court of Queen's Bench, still it is a complete authority, for this case: for, if it was wrongly decided, it was because, as Lord Eldon considered, there were circumstances in it which enabled the Court to say that the persons who did execute the power, were persons who were authorized, by the settlement, to execute it. In that case there were, originally, three trustees of the settlement; and a power of sale was given to them and their heirs. One of them died, and the other two executed the power. The Court of Queen's Bench held that the power was not well executed. But, as the next clause in the settlement declared that the monies to arise from the sale, should be paid to the three trustees or the survivor or survivors of them, Lord Eldon thought that, taking the two clauses together, the two surviving trustees might have executed the power. Whether the Court of Queen's Bench was right, or whether Lord Eldon was right is quite immaterial so far as the present case is concerned: both opinions were founded on the same principle; and that principle applies to the present case. The Court of Q. B. thought that the surviving trustees were not designated, by the settlement, as persons to execute the power; Lord Eldon thought that they were. But neither the one nor the other thought that the power could be exercised by any one except a person contemplated by the settlement. But it is impossible to say that persons appointed trustees of a settlement under an order of the Court of Chancery, are persons contemplated by a settlement which says that a power shall be exercised by the persons who are appointed trustees by it, and the survivor of them, and the executors and administrators of such survivor. Therefore, upon the principle established by Townsend v. Wilson, (whether that case was rightly decided, or ought to have been decided as Lord Eldon thought,) and without going into the other authorities, I hold, not only that the Plaintiffs cannot make such a title as a purchaser is bound to accept, but that the Master is right in the conclusion which he has come to, namely, that the Plaintiffs cannot make any title at all to the farm which they have agreed to sell to the Defendant: and, consequently, I shall overrule the exception taken by them to the Master's report, with costs. Exception overruled with costs. 1851. NEWMAN v. WARNER. 1851: 4th, 12th and 14th July and 20th August. Will. Condition. John William Earl of Bridgewater devised his freehold estates to trustees, in trust to convey them to the EGERTON v. LORD BROWNLOW. 30th June, 2nd, JOHN WILLIAM seventh Earl of Bridgewater, by his will dated the 31st of March 1823, after charging his estates in Shropshire and Cheshire with an annuity of 12,000l. to his wife Charlotte Catherine Anne Countess of Bridgewater, and with annuities of 40007. each to Sir Charles and Lady Long his niece, gave all his real estates, except his copyhold and leasehold estates thereinafter devised and the estates of which he was either a trustee or a mortgagee, and subject, as to his estates in the counties of Salop and Chester, to the before-mentioned annuities and to the powers for the recovery thereof," Unto and to the use of John Earl Brownlow, Edward Herbert Lord Viscount Clive, and the said Sir Charles Long, their heirs and assigns for ever, upon trust, by such conveyances or assurances as shall be deemed expedient or counsel shall advise, to convey and assure, settle and limit all my said hereditaments and real estate hereinbefore devised, with their appurtenances, to the several uses, upon the trusts, and for the intents and purposes, and with, under and subject to the powers, provisoes, limitations and declarations hereinafter by this my will declared and directed use of Lord Alford, his great nephew, for ninety-nine years if he should so long live; remainder to trustees and their heirs during the life of Lord Alford, in trust to preserve contin gent remainders remain der to the use of the heirs male of the body of Lord Alford with divers remainders over provided that, if Lord Alford should die not having acquired the title of Duke or Marquis of Bridgewater, the estate directed to be limited to the heirs male of his body, should cease, and the estates should, thereupon, go over and be enjoyed according to the subsequent uses and limitations directed by his will. Lord Alford died leaving a son, but without having acquired the title. Held that the proviso was valid. concerning the same: And in the mean time to permit and suffer my said hereditaments and real estates to be held and enjoyed by, or to pay, apply and dispose of the rents, issues and profits thereof unto or for the benefit of such person or persons, or for such intents and purposes as the same would go or beleng to or be applicable if such settlement had been actually made pursuant to this my will: And I will and direct that such conveyance and settlement shall be to the use of the heirs of my body: remainder to the use of the said John Earl Brownlow, Edward Herbert Lord Viscount Clive and Sir Charles Long, their executors, administrators and assigns, for and during the term of ninety years, computed from the day next before the day of my death, without impeachment of waste, upon the trusts and for the intents and purposes, and subject to the provisoes and declarations hereinafter declared and directed concerning the said term, and from and after the expiration or sooner determination of the said term and in the mean time subject thereto and to the trusts thereof, to the use of James Walter Earl of Verulam, and John Thomas Viscount Sydney and their heirs, during the natural life of my brother the Honourable and Reverend Francis Henry Egerton, in trust to preserve contingent remainders: with remainder to the use of the first or only son of the body of my said brother lawfully begotten, born in my lifetime or in the womb at my decease, for and during the term of ninety-nine years thence next ensuing, if such first or only son shall so long live, without impeachment of waste: with remainder to the use of the said Earl of Verulam and Viscount Sydney, and their heirs during the life of such first or only son, upon trust to preserve contingent remainders with remainder to the first and other sons lawfully begotten of the body of such first or only son of my said brother, severally and successively according to 1851. EGERTON v. LORD BROWNLOW. |