With respect to the form of the condition, it seems open. to observation, not that it is a delegated power, because the view which I take is paramount to that objection; but the appointment being, not merely if the daughters refuse at the request of the donee, but of her executor, the fund might be distributed before anything had taken place to devest the effect of the appointment; therefore it might be said that the parties had become entitled to the fund, and the request would come too late; and that the request, and the period within which it might be made, were so indefinite that the Court could not arrive at a proper construction how the fund was to be distributed consistently with the rule of law, which would not permit an indefinite extension of the time for exercising the power given by the settlement. But I think that the difficulty is obviated by the terms of the power itself, which provides, that the time within which an appointment is to take effect shall be "not more remote than twenty-one years next after the decease of the said Mary Norman," and I apprehend, that the proper construction of the clause, giving to the executor the right of determining when the application was to be made, would be to construe it as if contained in the instrument creating the power, and it would be thus limited to take effect within a period of twentyone years after the death of the donee; and then the condition becomes a limitation of the fund upon a request being made within a time confined to the legal period. With respect to the form of the power, I perfectly agree with the observation of the Lord Justice Knight Bruce in Trollope v. Routledge (a), where there was an appointment absolutely to one daughter, in the first instance, and then a subsequent agreement, to which the daughter, being a feme covert, was no party, that the appointment should be to her for life; and the Vice-Chancellor said, "In construing a deed, the mere form, in a case like this, is not (a) 1 De G. & S. 662. 1854. STROUD v. NORMAN. Judgment. 1854. STROUD v. NORMAN. material. The order and arrangement, also, are not material. The question is, what is the intention of the whole taken together? Mrs Trollope had power to appoint to the separate use of the daughter without the Judgment. daughter's consent. It has never, I believe, been decided, that a restraint upon alienation of income by a married woman is inconsistent with an absolute estate in the capital for her separate use. And I suppose, that a limitation or an estate for life for a married woman's separate use is consistent with her having an absolute estate in the capital not for her separate use. The intention here is plainly expressed by the donee of the power, that this lady should take the fund for her separate use during her life." And in that case it was held, there having been an absolute appointment in the first instance, and then a resettlement to which the appointee could not be taken to have assented, that the appointment was absolute, with a subsequent limitation to the separate use of the married woman for her life. Here there is an absolute appointment to one daughter, and, in the event of her not doing a certain act, then over to another. The difference between a mere condition to devest a gift and a limitation over, will occur to every one. In no case is it more apparent than in a limitation of property to A. for life, with a declaration, that in the event of his bankruptcy it should cease, or that he should have no power of assigning it, as in the case of Brandon v. Robinson (a). In such a case the condition is void, and the disposition of the property is absolute. But, if there be not merely a condition but a limitation over on the given event, then it takes effect. So, here, an appointment may be made to one object; and, on a certain condition not being complied with, there may be a limitation of the property over; and (a) 18 Ves. 429. 1854. STROUD v. NORMAN. there is no authority which militates with this view. Sadler v. Pratt (a) was a case in which a woman had children by two different husbands, and had a power of appointment in favour of one only of those classes, and she made an appointment in favour of all of the children of both Judgment. classes; and, in order to establish that arrangement, declared, that, in the event of any of the objects of the power refusing to share the fund with the other children, the child so refusing should not have any part of the trust property; and, if all refused, she gave the whole to the youngest of the objects of the power. That was clearly a device to give part of the fund to the family who were not objects of the power; and Lord St. Leonard's says, that "this ingenious device was considered void" (b). But that was not because it was a condition that could not hold, but because it was a scheme for effecting an improper object, namely, transferring the fund to parties who were not entitled to it. Here the scheme is to provide for all the family who are objects of the power; and, if the sons take the property from their sisters, they are to have nothing under the appointment; but if not, then they are to take by appointment the whole fund. That is a perfectly just scheme. Mrs. Stroud and her trustees are bound to elect whether they will take under the appointment or not; and I must have some evidence which course is more for the benefit of the persons entitled under her settlement. Mr. Stevens suggested, that, by filing the bill, Mrs. Stroud had elected to take the benefits given by her father's will, and not under the appointment. The VICE-CHANCELLOR said, that the bill was by the trustees of her settlement seeking the direction of the Court, and, therefore, could not be an election. (a) 5 Sim. 632. (b) 2 Sugd. Pow., 7th edit., p. 85. 1854. STROUD บ. NORMAN. Minute of Declare, that, under the appointment made by the deedpoll of the 16th of July, 1850, the Plaintiff Mary Catherine Stroud became entitled to the several sums thereby appointed to her, subject to the appointment and limitation over of the said sums to the Defendants (the brothers), in the event of the said Plaintiff or her assigns not releasing, upon the request, in writing, of the said Mary Norman, her executors or administrators, all the share of the Plaintiff in the property held under the trusts of the will of her father James Ormond Norman; and declare, that, a request having been made by the executors of the said Mary Norman, by notice in writing, dated the 12th of February, 1853, that such release should be made, the Plaintiff Mary Catherine Stroud and the Plaintiff Marmaduke Hornidge, as her trustee under the settlement made on the marriage of the said Mary Catherine Stroud, dated the 7th of June, 1844, are bound to elect, whether they will accept the appointment made by the said Mary Norman; and if they should elect to do so, then that a proper release ought to be executed of all the share and interest of the Plaintiff Mary Catherine Stroud in the property held under the trusts of the said will of her late father, except the said sum of 1498l. 10s. 7d. Consols, part of the said trust property. Inquiry, at Chambers, whether it would be for the benefit of all parties interested under the said settlement, to take under the said appointment; and, if so, then decree that they execute a release to the Defendants (the brothers), of &c. Tax costs, and pay them out of the fund taken by the Plaintiff under such election. 1854. SHARSHAW v. GIBBS. Feb 11th & 14th. Tenant for Life Interest on Mort -Arrears of -Charges on settled Property. A tenant for life of an estate subject to a mortgage is not tween himself derman or versioner in liable, as be and the remain re fee, to pay out of the rents and profits of the By an indenture of settlement, dated the 31st of May, 1844, between William Sharshaw of the first part, Mary Esther Cumber, afterwards his wife, of the second part, gage-Repairs and Thomas Sharshaw, father of the said William Sharshaw, of the third part, certain hereditaments therein described, subject to a mortgage to William Bolton, and also a bond for 7901., with interest at 51. per cent., were granted by the said Thomas Sharshaw to the said William Sharshaw and Mary Esther, afterwards his wife, "upon the following terms and conditions, namely, that the whole of the said property should be enjoyed by the said William Sharshaw and Mary Esther, afterwards his wife, during their joint natural lives, and in case of the decease of the said William Sharshaw before the said Mary Esther Sharshaw, then that she should enjoy the said property during the term of her natural life, or until the time that she might marry; well understood, that, at her death or marrying, the said enjoyment should cease, and the said property should then belong to the child or children" of the marriage then intended; and in the event of the death of the said William Sharshaw before his said intended wife, it was thereby agreed that three trustees should be appointed to take care of the property for the child or children of the marriage. estate arrears of interest on which accrued due during the life of a preceding tenant for life, who died insolvent; the mortgage, but such arrears are primarily a charge upon the inheritance. Observations on the dicta in Lord Penrhyn v. Hughes, (5 Ves. 106). A second tenant for life cannot charge upon the inheritance money expended by him in repairs, which ought to have been performed by the first tenant for life, unless the expense was occasioned by wilful waste done by him. By a marriage settlement, the father of the intended husband agreed to settle a money bond and certain real estates on the intended husband and wife, during their joint lives; and, after the death of the husband, if the wife should survive, on her for life, and, after her decease or second marriage, upon the children; and it was agreed, that, if the husband should die before his wife, three trustees should be appointed to take care of the property for the child or children of the marriage. The marriage was solemnised, and there was issue of it. The husband's father died, leaving his son, the husband, his sole executor, who thereupon took possession of the bond, and deposited it with his bankers, who had no notice of the settlement, to secure a loan from them. The husband then died insolvent, leaving his wife surviving. In a suit concerning the trust property, trustees thereof having been appointed by the Court:-Held, that they might redeem the bond by raising money for that purpose out of other parts of the property included in the settlement. |