1840.-Pearce v. Verbeke. benefit of his daughter and her family, and that according to the writ [*336] ten proposals, it was to have been secured and paid to Mrs. and not Mr. Verbeke. The only witness examined to prove the case was Mr. H., the solicitor of the plaintiff, and who had been engaged in preparing the proposals and settlement. He proved the preparation by him of the proposals and the alteration, and that he had prepared the draft of the settlement "from or pursuant to the proposals, and that such draft did not, to the best of his recollection and belief, differ from such proposals in any particular; that he and Mr. Verbeke had perused, approved and settled it; "that at the meeting between him and Mr. Verbeke to settle the draft of the said settlement, frequent reference or allusion was made in the course of it, as well by Mr. Verbeke as by himself, to the said terms or proposals for a marriage settlement, and particularly to that part thereof which related to the allowance to be made by the plaintiff; and that Mr. Verbeke, then informed deponent that he, Mr. Verbeke, had read over with the plaintiff the said proposals for a marriage settlement, and that he, Mr. Verbeke, assented to the terms and stipulations thereof, and that he and the plaintiff had agreed to the same; that the said conversation so had between Mr. Verbeke and the examinant, and the consent so given by Mr. Verbeke to the said proposals for a marriage settlement as aforesaid, had reference to that part of the said proposes which alluded to the allowance to the said Emily Pearce as the examinant well remembered, the said Mr. Verbeke remarking in the course of the said conversation that both himself and the said Mr. Pearce considered the allowance to be made by him the said Mr. Pearce to be for the benefit and support of the said Emily Pearce and her children, in the event of her surviving him, Mr. Verbeke." *Mr. Pemberton and Mr. Harwood, for the plaintiff, cited Barstow [*337] v. Kilvington, (a) The Duke of Bedford v. The Marquis of Abercorn,(b) Jenkins v. Quinchant.(c) Mr. Treslove and Mr. Williams, for Mrs. Verbeke and her children, contended that it was evident from the written proposals that the object was to provide for the wife and children, which had not been effected through the mistake of the solicitor, and that the settlement ought now to be reformed so as to work out the real agreement and intention of the parties: they cited Higginson v. Kelly, (d) Ex parte Verner,(e) Simpson v. Vaughan,(g) Beaumont v. Brainley.(h) Mr. Kindersley and Mr. Bichner did not dispute the jurisdiction, but insisted on the extreme danger of altering, upon parol testimony, a solemn instrument after the death of a party, and when circumstances had changed; that the deed itself was the ultimate arrangement between the parties, and if a difference existed between the settlement and the original proposals, it must (a) 5 Ves. 593. (b) 1 Myl. & Cr. 312. (c) 3 Ves. 95, b. n. (g) 2 Atk. 31. 1840--Pearce v. Verbeke. be assumed that the parties had changed their intention, and had acceded to a new arrangement(a) during the mouth which had intervened between the proposal and the settlement. THE MASTER OF THE ROLLS:-All cases of this description must necessarily be disposed of upon their own peculiar circumstances; but whenever, from those circumstances, the court can come to a satisfactory conclusion as to what was the intention of the parties, and it appears that such in [*338] tention has *not been carried into effect, it will exercise its jurisdiction for the purpose of correcting that which has been done in error. In 1831, upon the treaty for the marriage, the property for the wife was so circumstanced as to render it impossible to provide an immediate maintenance for her; and her father, by the written proposal, agreed to allow his daughter 2001. a year during his life, to be continued if she died in his lifetime leaving children, but to cease if she died in his lifetime without children. This proposal had clearly a reference to the maintenance of the family which might arise. If there were no children to provide for, the annuity was to cease upon her death, although her husband might survive. This was the first proposal which was assented to by Mr. Verbeke. Mr. Pearce afterwards made a variation in the proposal, he proposing to give Mr. Verbeke 100l. per annum in the event of his daughter dying without issue, and which he directs may be included in the boud. This of course was acceded to, and these two proposals at that time formed the agreement between the parties. It is said that the agreement was afterwards varied, and the question is, whether that is really the case. Now it appears that these proposals were sent to the solicitor as instructions for the preparation of the settlement. He says that he prepared the draft pursuant to these proposals. The parties, entirely relying on him, afterwards executed the deed and from the evidence I think it clear that the deed was intended to be, and ought to have been, in conformity with the proposals. The deed itself recites an intention to make some immediate provision for Mr. Verbeke and his wife; this recital clearly shows that it was intended to make a present and immediate pro[*339] vision for Mrs. Verbeke. The covenant by which this is attempted to be carried into effect is an absolute covenant to pay an annuity of 2001. to Mr. Verbeke and his assigns during the life of Mr. Pearce, thereby making the annuity his absolute property, and leaving the wife and children wholly unprovided for. The covenant then provides, that "if the wife should die in her husband's lifetime, without issue, then that the annuity should be reduced to 1007. a year, and that if Mr. Verbeke should become bankrupt, &c., the annuity should cease; but it does not, even in that event, provide in any way whatever for the wife and children. What has happened? Mr. Verbeke has died insolvent, leaving his wife and children surviving, and his executors, on the part of his creditors, claim to have the annuity of 2001. which (a) See 3 Myl. & Cr. 740. 1840-Townsend v. Westacott. Mr. Pearce intended as a provision for the wife and children, paid to them; so that the wife and children are, during the life of Mr. Pearce, to be left absolutely destitute; and this, it is conceived, is a settlement in conformity with the proposals which were made and acceded to. I think it likely, that in preparing this settlement, it was assumed that Mr. Verbeke, when in the en. joyment of this annuity, would make for the wife and children that provision which was intended for them. I think that must have been the notion of the solicitor preparing the settlement, but it could never have been the intention of the parties that this annuity, strictly intended for the wife and children, should be so limited by this settlement as to give it to the creditors of the husband, leaving the wife and children entirely destitute. I think that the mode by which the intention was attempted to be carried into effect erroneous. The intention was, that in the event which has happened, the annuity of 2001. should be a present and immediate provision for the wife, and through the wife for the children; I must therefore declare that this settlement must be reformed. *TOWNSEND v. WESTACOTT. [*340] 1810 February 20, 25. A party largely indebted makes a voluntary settlement, and becomes insolvent within three years: Held sufficient to avoid the settlement under the 13 Eliz. c. 5; and held also, that in order to set it aside it was not necessary to prove that the settlor was in a state amounting to insolvency. A bill alleged that the settlor, at the time of making a voluntary settlement, was greatly indebted, it did not state the particulars of the debts, but referred to a schedule of the settlor in the Insolvent Court in aid of the suit: Held, that the existence of the debts was not sufficiently put in issue as against an infant, but an inquiry was directed on the point. In the year 1830, the defendant, John Westacott, was absolutely entitled, amongst other property, to five closes of freehold land, which stood limited to the usual uses to bar dower, and as to which there were outstanding terms vested in trustees to attend the inheritance. On the 2d of April, 1830, Westacott appointed and released this property to a trustee, upon trust for himself for life, with remainder to Maria Pook, an infant, the daughter of his housekeeper Elizabeth Pook, absolutely, with a gift over to Elizabeth Pook in case of the death of Maria Pook before she attained twenty-one. This deed was purely voluntary, and was made without any consideration. No marriage was then in contemplation; but sometime afterwards Westacott married Elizabeth Pook. In October, 1832, Westacott was imprisoned for debt; and on the 19th of January, 1833, he petitioned for relief under the insolvent debtors' act, and executed the usual conveyance to the provisional assignee. In March, 1833, his petition was heard, when he was remanded for nine months, at the end of which time he was discharged. The plaintiff, his assignee, to whom the usual conveyance had been made by the official assignee, filed this bill, stat ing, that in April, 1830, Westacott was in insolvent circumstances, and inVOL. II. 27 1840.-Townsend v. Westacott. debted in upwards of 65001., which he was unable to pay; that he [*341] had executed the deed with the intent to delay and defraud his *creditors; that he had continued insolvent and indebted down to the time of his imprisonment; and it contained the following allegation:-"That the schedule of the debts of the said John Westacott, annexed to his said petition, and verified by his oath, contained debts due from him to the amount of 81841., of which sum debts to the amount of more than 56007. appeared, by the said schedule, to have been, and in fact were due from the said John Westacott on the 2d of April, 1830, and plaintiff craves leave to refer to such schedule in aid of this suit, and intends to prove, if necessary, such existence as aforesaid of the said debts ;" the bill did not, however, specify any debts. It prayed that the deeds might be declared fraudulent and void and might be delivered up to be cancelled; and for a conveyance to plaintiff as assignee, by the trustee of the deed; for an assignment of the outstanding terms; and if necessary, that the validity of the instruments might be tried by an action at law, and for that purpose that the outstanding terms might be removed. The defendants, Westacott and wife, insisted that he was not insolvent at the time of the execution of the deed; but that his property at that time would have produced 7000l. while his debts and liabilities did not exceed 56001.; the infant, Maria Pook, put in the common infant's answer. The plaintiff proved the existence of debts on the 2d of April, 1830, of about 22567., due to creditors mentioned in the insolvent's schedule, including therein a debt due to the plaintiff on bond dated in 1829. The defendant entered into evidence to prove the value of the property, but the evidence was considered very unsatisfactory by the court. Mr. Pemberton and Mr. Chandless for the plaintiff, contended, [*342] that the settlement was fraudulent and void under *the statue of 13 Eliz. c. 5, against creditors existing at the time, and that being set aside in regard to them, all subsequent creditors would be let in: they cited Goodson v. Jones, (a) Russell v. Hammond, (b) Walker v. Burrows, (c) Taylor v. Jones, (d) Lord Townsend v. Windham,(e) Partridge v. Gopp,(g) Kidney v. Coussmaker, (h) Montague v. Lord Sandwich,(i) Richardson v. Smallwood,(k) Whittington v. Jennings.(l) Mr. Richards and Mr. Elderton, contra, objected that there was no allegation in the bill that the plaintiff was a creditor at the time of the execution of the settlement, or that he was a creditor at all. That the existence of the debts at the time had not been properly put in issue by the bill; and that the reference to the schedule, which was binding alone on the husband, was not sufficient for that purpose; that consequently the evidence of these debts could not be received as against the infant and the married woman. They contended also that in order to set aside a voluntary settlement it 1840.-Townsend v. Westacott. was requisite to prove that the settlor at the time was indebted to the extent of insolvency; Lush v. Wilkinson.(a) Mr. Jemmett, for trustees. Mr. Chandless, in reply, contended that the debts were properly put in issue by the reference to the schedule, and stated they had been so alleged to save the great *expense of setting out the debts in the bill; he argued [*343] that if there existed any doubt, then that the case ought to be put in a course of inquiry. THE MASTER OF THE ROLLS :-This bill is filed by the assignee of Westacott, an insolvent debtor, against the insolvent, his wife and her infant daughter, and against the trustees of the settlement and of some outstanding terms of years. The object of the bill is to set aside for fraud a voluntary conveyance which was made by the insolvent on the 2d of April, 1830, to a trustee, for himself, for life, and afterwards in trust for Mrs. Pook and Maria Pook, her infant daughter. Mrs. Pook, being a stranger to the settlor, and no marriage being in contemplation at the time, though they afterwards married, this deed was a purely voluntary conveyance; and if it was a conveyance executed for fraudulent purposes it ought to be set aside; but if the transaction was honest, and without fraud, it ought not to be interfered with. In the first place, it is alleged on the part of the plaintiff, that this deed was executed entirely without consideration; that is admitted. In the next place it is said, that the settlor was largely indebted at the time; and of this there is strong evidence, which I shall presently notice. Being largely indebted he made this voluntary conveyance, and in less than three years afterwards he became absolutely insolvent. On these facts alone, provided they were properly put in issue and proved, I am of opinion that this conveyance ought to be set aside as fraudulent. The state of the pleadings, however, is this, it is alleged by the bill that Westacott was, at the time, in insolvent circumstances, and indebted in a large amount to several persons, which he was unable to pay. The persons to whom he was so indebted are not specified; "but it is stated, [344] in a subsequent part of the bill, that having become insolvent, his debts in his schedule appeared to be 81841., of which 5600l. were due on the 2d of April, 1830; and the plaintif then "craves leave to refer to such schedule in aid of the suit, and intends to prove, if necessary, such existence as aforesaid of the said debts." With respect to Westacott himself, the schedule is a sufficient admission of the debts; but of the other defendants one is a married woman, and the other an infant, who has put in a common infant's answer. These defendants have not had an opportunity of examining these debts. It would be very difficult to hold the infant or the married woman absolutely bound by the allegations as to the schedule, even for the purpose of putting them to prove that they are not to be affected by them; for every thing as regards an infant or a married woman must be taken strictly. I can (a) 5 Ves. 384. |