1851. HARCOURT v. SEYMOUR. Argument for May (n), Chichester v. Bickerstaff (0), Bowes v. Lord Mr. Stuart and Mr. G. S. Law appeared for Seymour and Heath, the surviving trustees of Earl Harcourt's will. Mr. Calvert appeared for Elizabeth Georgiana Harriet Harcourt, the mother of the Plaintiffs. Mr. Rolt, for George D. T. B. Harcourt and his sons, the first tenant for life and tenants in tail male under the Earl's will, said: George D. T. B. Harcourt acquiesces in the view taken of this case by Mr. Bethell and Mr. Giffard; but it is my duty, as Counsel for his sons who are infants, to contend that the 32,000l. was converted into real estate by the settlement, and that it passed, as such, by the will of Earl Harcourt. Where personalty stamped with the character of land, is claimed as personalty, it is not sufficient to show that the person absolutely entitled to it, supposed it to be personalty. which leaves no doubt, on the (n) 3 Atk. 255, cited. There must be evidence mind of the Court, that (0) 2 Vern. 295. (u) 13 Ves. 345. he knew that there was a trust which stamped it with the character of real estate, and, knowing that fact, that he did something which clearly showed it to be his intention to defeat the trust, and to take the fund as it stood. How can you impute to him an intention to reconvert the fund, unless you first show that he knew that it had been converted? His speaking of it in its actual condition, is nothing more than a description of it. You must show that he knew of the existence of the trust, and that he did some act which showed his determination that the trust should not take effect. The Vice-Chancellor.-The Counsel for the Plaintiffs say that it is sufficient to show that he dealt with the fund as personalty. Argument resumed.-The dealing with the fund must be such as to show an intention to change the character impressed upon it: simply dealing with it as personalty, is not sufficient. Such being, as I submit, the principle of the cases on the subject of conversion, I proceed to observe upon the peculiar circumstances of this case, as they appear on the Master's report; and which, I submit, show that Earl Harcourt did not intend to defeat the trust for conversion contained in the settlement. The Master finds that 10007. of the 32,000l., was received by Earl Harcourt; that 11,000l. was laid out in the purchase of 12,7351. 3s. 4d. Navy Five per Cents in the name of William Danby, the only trustee of the settlement who was then living, and that the remaining 20,000l. was invested on a mortgage of Sir George Lee's estates, made to Danby in fee. 1851. HARCOURT v. SEYMOUR. 1851. HARCOURT v. SEYMOUR. Then, in 1813, Earl Harcourt, who had then been married thirty-five years without having a child, covenanted to indemnify Danby against any loss or damage which he might sustain by reason of any laches which might be imputed to him, in consequence of the trustfund having been invested as before mentioned, instead of the same having been invested in the purchase of real estate, as directed by the settlement, or in consequence of Danby having acquiesced in the misapplication of the 10007. by the Earl. This is strong evidence that, up to 1813, it was the Earl's intention to treat the settlementfund as real estate. Then, by a deed dated in April 1818 and executed by the Earl and Countess, they join with Danby in appointing new trustees of the settlement; and it was thereby agreed and declared that Danby and the new trustees should stand possessed of the 12,7351. 3s. 4d. Navy Five per Cents, which, shortly before, had been transferred into their names, and of the 20,000l. secured on mortgage, when the same should be conveyed to them, upon the trusts of the settlement. So that the Earl, in 1818, when he had been married forty years, and when it was quite clear that there would be no issue of the marriage, treated the funds as subject to be laid out in real estate. In 1822, the 12,735l. 3s. 4d. Navy Five per Cents was converted into 13,3717. 18s. 6d. New Four per Cents The Earl never repaid the 10007.; and the 20,000l. and the 13,3717. 18s. 6d. New Four per Cents, remained secured and invested as before mentioned, until after the Earl's death. In March 1828, the Earl made his will; but it does not contain anything which affects the present question; nor is the mode in which the trust-funds were considered and dealt with after the Earl's death, of any importance. Then the Master states that, from some time in the year 1812 down to the 10th of February 1826, the Earl made entries in his pass-books, in which he termed the sums of Five per cent. and Four per cent. stock, sometimes "trust-money," and sometimes "trust-stock." Now, he had distinctly recognized the trusts of the settlement as existing in 1818: and, as no new trust had been declared between that year and 1826, he must have referred to the trusts declared by the settlement, when he used the expressions, "trust-money," and "trust-stock." I now come to the deed of the 19th of February 1828, on which the Counsel for the Plaintiffs have so much relied. That deed recites that the 20,000l. was not the proper monies of W. Danby, Sir H. Douglas and G. S. Collyer, but was held by them upon the trusts of the settlement, under which the Earl was entitled to the interest thereof for his life, and, in the event of his dying, without issue, to the absolute interest in the principal. That recital is perfectly correct; for the Earl was entitled to the absolute interest in the principal; and, for that reason, the expression, "his executors or administrators," is used throughout the deed. And it is to be observed that the trustees of the settlement are associated, with the Earl and his executors, administrators and assigns, as the parties by whom the money is to be called in; and, therefore, it recognizes the existence of the trusts of the settlement. Consequently, if it had stood alone, it would not, at all, assist the case of the Plaintiffs. Besides I shall show from other documents set forth in the report, that, subsequently to the date of that deed, the Earl recognized the trusts of the settlement as existing trusts. 1851. HARCOURT v. SEYMOUR. 1851. HARCOURT v. SEYMOUR. The Master then sets forth certain letters and statements of property in which the Earl speaks of the mortgage and the stock, as his property. But those expressions are quite as consistent with my case as they are with the case of the Plaintiffs. The question, is not whether the 20,000l. and the stock were the Earl's property, but whether they were real or personal estate. Besides, in those documents, he speaks of the stock as "trust-money:" he distinguishes it from his private property; and asks advice as to the procuring of the consent of the trustees to its being converted into stock of a different denomination. Then, on the 6th of March 1828, which was subsequent to the date of the deed of the 19th of February 1828, Mr. Collyer received a letter from the Earl, in consequence of which he sent the Earl a statement of his funded property containing this item: "In the name of trustees, marriage settlement, 13,3717. 18s. 6d. New Four per Cents:" and, on the 7th of May 1828, the Earl wrote a letter, to Mr. Collyer, respecting the purchase of a Post-office bond, which contained the following passage: "If you do not see any very strong argument against this measure, the purchase-money might be provided by applying a part of my credit, after leaving about 40007. balance in your hands, and making up the remainder of the purchase-money from any of the items of my funded property, trust-money excepted." That expression shows that the Earl meant to leave the money subject to the trusts of the settlement. Then the Master states that there was found, at St. Leonard's, a statement dated the 23rd of January 1829, which Collyer had prepared by the direction and for the use of the Earl, in which the words: "marriage settlement” were written against the 13,3711. 18s. 6d. New Four per Cents. |