1843-Lord v. Bunn. duly assigned by Thomas Lord, the settlor, to the same [*100] trustees, their executors, administrators, and assigns, *to hold upon trusts similar to those declared by the before-mentioned indenture, allowing for the difference of tenure of the respective properties. Thomas Lord the settlor, and Amelia Elizabeth his wife, died many years since, leaving Thomas Lord, the son, surviving them. Thomas Lord, the son, married and had several children. The original trustees, under the indentures of settlement, having been discharged from their trusts, two persons, named respectively Bunn and Burgoyne, were duly appointed trustees in their room. Some time after the stat. 1 & 2 Vict. c. 110 came into operation, Thomas Lord, the son, was committed to the Queen's Bench prison, charged in execution for debt, at the suit of one Silver. Satisfaction not having been made for the debt within twentyone days after such committal, application in pursuance of the above-mentioned act was made by the creditor to the Court for Relief of Insolvent Debtors for the usual vesting order, and such order was accordingly made in July, 1841. Silver was a few months afterwards appointed by the Insolvent Debtors' Court assignee of the estate and effects of the insolvent. The trustees having, under these circumstances, refused to pay to any person the rents and profits of the property comprised in the indentures of settlement, a bill was filed in January, 1842, by the children of the insolvent, one of whom, a daughter, had attained her age of twenty-one, and the insolvent's wife, the mother of those children, against the trustees, the assignee under the Insolvent Act, (Silver,) and the insolvent, praying that the trusts of the indentures of settlement might be carried into execution, the rights of all parties therein ascertained, and the rents and profits secured. By an order of the Insolvent Debtors' Court, dated the 19th May, 1842, the insolvent, having duly complied with the provi sions of the 75th section of the statute 1 & 2 Vict. c. [*101] *110, was discharged from custody; and the fact of such discharge was brought before this Court by supplemental bill. 1843.-Lord v. Bunn. The cause now came on for hearing, the principal question being as to the manner in which the rents and profits of the settled property were to be disposed of during the lifetime of Thomas Lord, the son, from the time of his insolvency. Mr. Wigram and Mr. Craig, for the plaintiffs. We submit that the life estate of the insolvent was determined by the vesting order, or, at all events, by the insolvent's discharge; and that upon the determination of his life-interest a trust arose which might be executed for the benefit of the insolvent, his wife, and children, or any of them, at the discretion of the trus tees. If the discretion were exercised to any extent for the benefit of the insolvent, it might be a question whether that benefit would vest in the assignee: Godden v. Crowhurst.(a) But the trustees can at their discretion exclude the husband. If they decline to execute their trust, the Court must do so: Rippon v. Norton.(b) Mr. Selwyn, for the defendants, the trustees. Mr. Russell and Mr. Sidebotham, for the defendant, the assignee. In the first place, are there any persons in whom this discretion now resides? There seems no ground to contend that the discretion originally vested in the old trustees was transferred to the new trustees by the mere effect of their appointment. Supposing, however, that it was, the words "or any of them," and the subsequent word "their" in the settlement refer to the children only, and not to the husband, wife, [*102] and children; and, therefore, in any view of the case, the trustees cannot, in the exercise of their discretion, exclude the husband. If he be not excluded, a value can be set upon the interest which he may take under the trust, and the interest so valued goes to the assignee. There is, however, ground for argument, that if these trustees ever had the discretionary power which is contended for, it is gone; first, because it was not executed before the institution of the suit; Warburton v. Warburton,(c) Longmore v. Broom ;(d) and, secondly, by reason of (a) 10 Sim. 642. (b) 2 Beav. 63. (c) 2 Vern. 420. (d) 7 Ves 127. arg. 1843.-Lord v. Bunn. the insolvency. Assuming that; prior to the insolvency, the interest of the insolvent was subject to certain discretionary arrangements on the part of the trustees, yet, as their discretion was not exercised prior to the insolvency, his interest, which was vested, cannot now be devested by any act of the trustees: Green v. Spice(a) Snowden v. Dales.(b) [The Vice-Chancellor. Can it be contended that the power is gone because one of the objects, who would take in default of execution of the power is insolvent?] In Snowden v. Dales, the insolvent's life interest was held to pass to the assignee, although the effect was to cut out the chance of accumulation for the children out of.the savings. Badham v. Mee.(c) THE VICE-CHANCELLOR.-According to my construction of the instruments and the act of Parilament, the right of those who were to take in substitution for the husband's life estate, does not arise till the actual discharge of the husband under the Insolvent Act. The rents of the property, therefore, until such discharge, formed part of the husband's estate, and belong to his assignee. [*103] *It has been admitted on the part of the assignee, and the admission must be entered by the registrar, that what was required under the act of Parliament to be done to obtain the order of the 19th May, 1842, was done, and that thereupon Thomas Lord obtained his discharge. That being admitted, I am of opinion, that the trust from the time of the discharge took effect in favor of the husband, wife, and children, or some of them. With regard to the question which has been agitated, whether the discretionary power created by the settlement yet remains in the trustees, I am of opinion that it does. In the first place, I think that, upon the true construction of the whole settlement together, the meaning to be collected is, that a discretion was to be vested in the trustees of the settlements for the time being. It would, I think, be hæsio in litera if I were to hold otherwise. Assuming that these trustees were duly appointed in the room (a) 1 Russ. & M. 395. (b) 6 Sim. 524. (c) 1 Myl. & K. 32. 1843.-Lord v. Bunn. of the former trustees, I think that the discretionary power created by the settlement is vested in them. It has been suggested, that, as one of the objects who are to take in default of the execution of the power has become an insolvent the discretionary power is gone. I apprehend, however, that the discretionary power has not gone from the trustees. If an individual have a power over an estate, which estate, in default of execution of the power, is vested in others-as, if the person having the power be A., and the persons to take in default of execution be B. and C., it is immaterial in the consideration of A.'s right to execute the power, what may have become of the interest of B. and C., because it is a mere defeasible interest. The assignee can only take such defeasible interest as the bankrupt had. No authority has been stated to me which seems to have proceeded upon a contrary notion, and I think that the trustees have a right under the power to appoint in favor of the insolvent and his wife, or in favor of the *children, or any [*104] of them, with or without the insolvent and his wife, or either of them. I am also of opinion under these settlements (without saying what might be done under other settlements,) that any benefit which the bankrupt may take will belong to his assignee.[1] ESTABLISH the indentures and direct the trusts of them to be carried into effect. Take an account of the rents and profits as against the trustees, from the time when they were appointed trustees, making all just allowances. Declare that the assignee is entitled to the rents and profits from the date of the vesting order to the time of the insolvent's discharge; that from the time of his discharge the rents and profits are subject to the trusts of the settlements; and it being admitted that the trustees have been duly appointed, declare that the power is vested in them. Declare that, according to the true construction of these trusts, the trustees have a right to apply [1] By a marriage settlement property was conveyed in trust to pay the rents, &c. "unto or for the maintenance and support of the husband, wife and children, or otherwise, if the trustees should think proper to permit the same to be received by the husband during his life, without power to charge the same, &c." The husband having become a bankrupt, it was held, that a trust had been created for the maintenance and support of the wife aud children out of the property during the husband's life; but that the assignees take every thing subject to what is proper to be allowed for the maintenance of tho wife and children. Page v. Way, 3 Beav. 20. Sce Younghusband v. Gisborne, 1 Collyer, 400. 1843.-Lord v. Bunn. the rents among the insolvent, his wife, and children, or any of them, the insolvent, his wife, and children, exclusive of any other of them. Declare that any right or title of the insolvent under that trust belongs to his assignee. Reserve further directions and costs; with liberty to apply. GIBSON V. RUSSELL. 1843: Jan. 18th, 19th; Feb. 11th: A deed of gift of real estate from an aged and infirm person to his intimate friend and medical attendant, set aside for fraud; one of the circumstances in proof of fraud being that the deed stated, contrary to the truth, a money consideration. THE bill was filed by George Gibson, as eldest surviving son and heir-at-law of Thomas Gibson, (who died intestate as to the property in question in the cause, leaving a widow and several children surviving him,) praying that certain indentures of lease and release, bearing date 23rd and 24th March, 1840, and purporting to be a conveyance of certain freehold property of the intestate, situate at Leamington Priors, to the defendant, might be declared fraudulent and void, and that the defendant might be decreed to deliver up the same to be cancelled, and might also be decreed to deliver up to the plaintiff possession of the premises, &c. *The circumstances of the case will sufficiently appear from the judgment. [*105] Mr. Russell and Mr. Greene, for the plaintiff. Mr. Wigram and Mr. Mylne, for the defendant. The following cases were cited or referred to in argument: Bridgeman v. Green,(a) Dent v. Bennett,(b) Whalley v. Whalley,(c) Filmer v. Gott, (d) Willan v. Willan,(e) Popham v. Brooke,(f) Griffths v. Robins, (g) Blachford v. Christian,(h) (a) 2 Vez. sen. 627; Wilm. 58. (f) 5 Russ. 8. (b) 7 Sim. 539. [S. C. 4 Myl. & Cr. 269.] (d) 4 Bro. P. C. 230 (ed. Tomul) (g) 3 Madd. 191. (h) 1 Knapp, P. C. 77. |