ROMER J. 4897 April 27. In re MARQUIS OF BRISTOL. [1897 B. 1136.] Settlement-Hotchpot-Two Funds—Referential Trusts. 66 A marriage settlement dealt with two funds: 13,0007. Consols belonging to the wife, and a policy for 50007. on the life of the husband. The capital of the wife's fund was to go to such children of the marriage as the husband and wife by deed, or the survivcr by deed or will, should appoint, and in default of appointment to the children equally, subject to a hotchpot clause in the form usually adopted in the case of one fund: the 50007. policy moneys were to go to such children of the marriage as the wife should by deed or will appoint, and in default of appointment upon the same or the like trusts," and subject to "the same or the like" powers and provisoes as were expressed in the said settlement concerning the wife's fund after the death of the husband and wife and in default of appointment. The whole of the 13,0007. had been appointed unequally among the three children of the marriage, the 5000l. was unappointed, and the question now raised was whether the two sums were to be aggregated for the purposes of hotchpot, or whether the 50007. was divisible into three equal shares : Held, that the two funds were distinct, and that the three children were entitled to the 5000l. in equal shares, without having to account for or bring into hotchpot any sums appointed to them out of the 13,0007. ADJOURNED SUMMONS. By a marriage settlement of June, 1836, a sum of 13,000l. Consols was settled by the father of the intended wife upon the usual trusts, after providing for the payment of the premiums on a policy of 5000l. on the life of the intended husband, to pay the income to the husband and wife during their respective lives, and, after the death of the survivor, upon trust for the children of the marriage in such shares and proportions as the husband and wife by deed, or the survivor by deed or will should appoint, and in default of appointment to the children equally, "but no child taking under any appointment to be made in exercise of the power or powers herein before contained shall be entitled to any unappointed part of the said sum of 13,000l." Consols, "or of the stocks, funds, or securities in or upon which the same may be invested without bringing his or 1897 In re MARQUIS OF V. GREY. her appointed share or shares into hotchpot and accounting for ROMER J. the same accordingly." The ultimate trusts in default of children were in the usual form, and in favour of the wife and her next of kin to the exclusion of the husband. A policy for 50007. on the life of the intended husband was also settled, EARL GREY upon trust to pay the income to the wife for her life, and, after her death, upon trust for the children of the marriage in such shares and proportions as the wife should by deed or will appoint; and, in default of such appointment, "then upon such and the same or the like trusts, for such and the same or the like intents and purposes, and with, under, and subject to the same or the like powers, provisoes, and agreements as are hereinbefore mentioned, expressed, and declared of and concerning the said sum of 13,000l. Consols from and after the decease of the survivor of them, the said" husband and wife, "and in default of appointment by them and the survivor of them as aforesaid," except that the ultimate trust, in the event of there being no children of the 'marriage, was to be for the benefit of the husband, his executors, administrators and assigns absolutely. There were three children of the marriage. The wife died. in 1869, without having exercised either jointly or separately either power of appointment. In November, 1895, the husband died, having appointed the whole of the 13,000l. Consols in unequal proportions among the three children. The 5000l. was unappointed, and the question now presented to the Court by the trustees of the settlement was whether the two funds were to be aggregated for the purposes of hotchpot, or the 5000l. was divisible into three equal shares among the three children. R. Younger, for the trustees of the settlement. Vaughan Hawkins, for a child to whom 1000l. only had been appointed. The primâ facie rule for construing referential trusts is to read them as extending to and governing the second fund, just as if the two funds had in the first instance been settled. A direction that fund B shall be held on the trusts already declared of fund A, the trustees being the same, does ROMER J. 1897 In re MARQUIS OF not mean that there are to be two distinct sets of trusts. The effect of the whole instrument must be considered: Hindle v. Taylor (1); Trew v. Perpetual Trustee Co. (2); there is no duplication of charges in the present case. A general hotchpot EARL GREY applicable to three funds was created by reference in In re Perkins. (3) The object of the hotchpot clause is to produce equality, and if these two funds are not aggregated one child will have a very much larger share in the settled funds than the others. [Montague v. Montague (4) and Davidson's Conveyancing, 3rd ed. vol. iii. p. 171, were also referred to.] บ. GREY. P. S. Stokes, for another child to whom the bulk of the 13,000l. had been appointed, was not called on. ROMER J. I do not see my way to hold that the funds settled by this settlement, the 13,000l. and the policy moneys, are to be regarded, or can be regarded, as one for the purpose of the hotchpot clause. Clearly I could not hold that the trusts of the 50007. in default of appointment are to be governed by reference to the appointments of the 13,000l., if I did not also hold, on the other hand, that the trusts of the 13,000l. in default of appointment must be governed by reference to what was done with regard to the 5000l. Now the trusts of the 13,000. are themselves very clear, and this is a case of a deed, and not a case of a will, and it appears to me it would be a very strong thing indeed to say that I can alter the trusts of the 13,0007. by reason of the subsequent trusts as to the 5000l. The fact is that in this settlement the two funds are really quite distinct. The sources from which they come are different. The trusts of the two funds are essentially different, and the ultimate trusts in default of children are especially and of necessity different. I cannot help thinking that when reference is made, in dealing with the policy moneys, to the 13,000l. trusts, as to what is to happen with the fund in default of appointment, when the children take, the trusts of the 5000l. are only expressed in a short form by reference to the 13,000l. in order to save the necessity of repeating them, and not with an intent (1) (1855) 5 D. M. & G. 577. (3) (1892) 41 W. R. 170. to aggregate for the purposes of the settlement the two funds, ROMER J. and as it were to make them one. The cases which have been cited do not enable me, and would not entitle me to deal with these two funds as one for 1897 In re MARQUIS OF V. GREY. the purpose of the hotchpot clause. Hindle v. Taylor (1) EARL Grey was a case of a will, and of a will dealing with charges, and so was the case of Trew v. Perpetual Trustee Co. (2) The principle of those cases is I think well set forth, if I may say so, by Lord Hobhouse in his judgment. (3) He shews that the cases he was dealing with were cases referring to charges or matters in the nature of charges. He says this : "But in the first place their Lordships cannot accept the proposed canon of construction in any sense which would give to it the general effect of multiplying charges upon the trust estate or trusts in the nature of charges. Of course such may be the intention or effect of a particular will. But in the absence of anything in the will to shew such an intention, the rule is that the Court will not impute it to the testator." I quite agree as a general proposition that where in a will you have trusts declared of one property with reference to the trusts that are previously or subsequently declared of another property, then, in construing the will, you will, so far as possible, treat the two funds as identical, at any rate for the purposes of not multiplying charges or trusts in the nature of charges; but I think the proposition must be limited to that. No case that has been cited before me refers to a case of a hotchpot clause except one, and that is the case before North J. of In re Perkins (4), and was the case of a will. There North J. came to the conclusion that what the testator had done was in effect for all purposes to make three funds, though separately referred to, one for the purposes of the will. The trusts in that case of the three funds were to be identical. Now, in the case before me the trusts with reference to the 50001. so far as material are not the same as those upon which the 13,000l. was to be held, but "such and the same or the like" trusts, and subject to "the same or like powers, 1897 ROMER J. provisoes, and agreements." As I have already said, I cannot gather from this deed that there was any intention that, for the purpose of the settlement, the two funds were to be treated as one fund. So that the case before North J. does not apply to EARL GREY the case now before me. Really the case now before me is In re MARQUIS OF BRISTOL. v. GREY. much more like the case of two funds declared by two separate Ideeds where the second deed declares the trusts of the second fund by reference to the first. In fact, it is more like the case of Montague v. Montague. (1) For these reasons I hold that the two funds must be treated as distinct for the purpose of the provisions of the hotchpot clause, and consequently that the three children will take the 5000l. in equal shares. Solicitors: Philip Thornton, for C. D. Forster & Co., Newcastle-upon-Tyne; T. W. Mitchell. |