Oldalképek
PDF
ePub

1843.

Nov. 8.

The ultimate trust in a marriage settlement of a fund belong. ing to the wife, was to her executors or administrators. Held, first, that the surviving hus band, who was her administrator, and

not her next

of kin, was entitled; and, secondly, that if by those words her next of kin

were intended,

then that the

next of kin at

the death of the wife, and not of the husband (who was tenant for life), were entitled.

By a mar

riage settle

ment, a fund

BY

ALLEN v. THORP.

Y the settlement made on the marriage of Mundeford Allen with Elizabeth Rush, a sum of 3000%. was settled on the wife and husband for life, in succession, with remainder to the children of the marriage, as the husband and wife or the survivor should appoint, and, for want of such appointment, to the children of the marriage, to be vested at twenty-one or on marriage with consent; and in case no child should attain that age or marry with consent (which happened), then to transfer to such person as the wife should appoint, and in default "unto the executors or administrators of the said Elizabeth Rush.”

No appointment was ever made. The wife died in 1827, and a daughter, the only issue of the marriage, died under twenty-one, without having been married. The surviving husband took out administration to his wife and daughter, and applied to Thorp and Griffin, the trustees, to have the fund transferred. Griffin was willing to comply, but Thorp refused.

The husband filed a bill against the trustees, praying

belonging to a transfer of the trust fund. the wife was

settled on the

The

husband and wife for their respective lives, with remainder to the children of the marriage, to be vested at twenty-one or marriage; and in case no children should attain vested interests (which happened), then as the wife should appoint; and in default unto the executors or administrators of the wife. The wife pre-deceased the husband, and made no appointment. There was one child only of the marriage, who survived her mother, but died without attaining a vested interest. Held, that the ultimate limitation was in favour of the wife's administrator, and not of her next of kin, and one of two trustees having declined to transfer the fund to the surviving husband, who was his wife's administrator, and having severed in his defence in a suit to obtain a transfer, was allowed no costs.

The next of kin of the wife were not parties to the suit.

The trustees severed in their defence; Griffin submitted to transfer; but Thorp, by his answer, stated, "that he had been advised by counsel, that it was very doubtful, whether the limitation in the settlement, (in default of the appointments therein mentioned), to the executors or administrators of the said Elizabeth Allen, (formerly Elizabeth Rush), operated in favour of the said Mundeford Allen, as her husband and administrator, or in favour of the next of kin of the said Elizabeth Rush (afterwards Elizabeth Allen); and that it was also doubtful, whether the words of limitation, used in the said settlement, denoted next of kin living at the decease of the said Elizabeth Allen, (in which case they would apply to Elizabeth Frances Allen, the daughter of the said Elizabeth Allen, who died an infant shortly after the decease of the said Elizabeth Allen), or whether they designated next of kin of the said Elizabeth Allen who should be living when the preceding trust failed," in which case certain persons, whom he named, would be her next of kin.

Mr. Pemberton Leigh and Mr. Rogers, for the Plaintiff. The husband, as administrator of his wife, is entitled under the ultimate limitation to her executors or administrators. That point was clearly settled by Lord Cottenham in Daniel v. Dudley. (a)

Supposing, however, that this is not the proper construction, and that the words "executors or administrators" mean next of kin, then the next of kin of the wife living at her death are alone entitled. Her daughter

1843.

ALLEN

v.

THORP.

(2) 1 Phillips, 1.

1843.

ALLEN

บ. THORP.

daughter was sole next of kin at that period; and the Plaintiff, in the character of administrator of his daughter, is entitled to the fund.

The Defendant Thorp, who has unnecessarily occasioned the litigation, in a case in which the Plaintiff is entitled in either alternative, ought to bear the costs.

Mr. G. Turner and Mr. Younge, for Thorp. Though there is a strong expression of Lord Cottenham's opinion in Daniel v. Dudley, still there was no ultimate decision in that case; and the opinions of Lord Brougham in Bulmer v. Jay (a) and of Sir L. Shadwell in Bulmer and Jay and Daniel v. Dudley are opposed to what fell from Lord Cottenham in the case of Daniel v. Dudley.

Secondly, if the next of kin are entitled, they must be ascertained at the death of the tenant for life, and therefore the representative of the daughter is not entitled. Briden v. Hewlett. (b)

The Defendant, who has acted bonâ fide, under the opinion of counsel, in a case in which the highest authorities differ, ought to be allowed his costs.

Mr. Walpole for Griffin, the other trustee.

Mr. Pemberton Leigh, in reply. Lord Brougham, in Bulmer v. Jay (c), held the fund liable to the wife's debts this makes that case consistent with Daniel v. Dudley. Briden v. Hewlett turned on the peculiar expression "would," which was held to "import that

(a) 3 Myl. & K. 197.

(b) 2 Myl. & K. 90. And see Bird v. Wood, 2 Sim. & S. 400.,

the

and Miller v. Eaton, Cooper,

272.

(c) 3 Myl. & K. 204.

the testator intended his next of kin at the death of his mother." (a) The case of Daniel v. Dudley was brought to the consideration of the Defendant Thorp prior to the institution of the suit. He refused to act on it.

The MASTER of the ROLLS.

[ocr errors]

The first question in this case is, whether I am to hold that the words " executors or administrators mean the next of kin; and I consider that question concluded by authority. The case of Daniel v. Dudley is entirely in point; and I could not consistently come to a different conclusion. But if that question were otherwise decided, and the limitation to the "executors or administrators" of the wife were taken to be a limitation to her next of kin, then the daughter who was next of kin of the lady living at the time of her death would be entitled, and she is represented by the Plaintiff. It seems therefore perfectly clear, in one way or the other, that the Plaintiff must be entitled.

It is matter of argument, in almost every case of this kind, whether you are to intend by the next of kin those who are really so at the time of the death of the party whose next of kin are to take, or whether you can collect from the instrument that there was an intention or reason to exclude them, and give the property to somebody else; but I think that in this case there is no sufficient foundation for the argument, and therefore, in whichever way you may view it, if you look at it as depending upon the authority of the case of Daniel v. Dudley, or upon the construction of the words, as a limitation

(a) See Urquhart v. Urquhart, V. C. E., 20th of February 1844.

1843.

ALLEN

v.

THORP.

1843.

ALLEN

υ.

THORP.

limitation to the next of kin, in either case, it seems to me, the Plaintiff is entitled.

With respect to costs, the Court, I think, ought to have great regard to the difficult situation in which trustees are almost necessarily placed, in consequence of the various decisions which almost unavoidably arise in this Court, upon the construction of deeds and wills. I feel that this particular Defendant, having, as far as any thing appears, fairly laid the case before counsel, and taken his advice and opinion upon it, is entitled to consideration in that respect, and would be entitled to his costs, if there were not other circumstances to countervail that particular circumstance. Now taking the fact to have been, as it is alleged, that, previous to the suit being instituted, this particular decision was pointed out to the Defendant, or to those who were advising him, and in which the point was clearly taken into consideration and decided, and that there is to be set against it only one case, in which the Judge who ultimately decided it, added a clause, the effect of which was to make it, in substance, in conformity with the case of Daniel v. Dudley, namely the clause, that the property was liable to the debts of the wife, I think in the result of this case I ought not to charge this trustee with costs, but that I ought not to give him any.

« ElőzőTovább »