Askham v Barker
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1853 |
| Date | 01 January 1853 |
| Court | High Court of Chancery |
English Reports Citation: 51 E.R. 945
ROLLS COURT
S. C. 22 L. J. Ch. 769; 1 W. R. 279. See Roach v. Trood, 1875, 3 Ch. D. 435.
[37] askham v. barker. March 4, 5, April 15, 1853. [S. C. 22 L. J. Ch. 769 ; 1 W. R. 279. See Roach v. Trood, 1875, 3 Ch. D. 435.] The donee of a power of selection cannot lawfully exercise his power, in such a manner, as to secure an advantage to himself, by any stipulation or arrangement with the appointees in whose favour the power is exercised. The burden of proving the invalidity of an appointment lies on the person who seeks to set it aside, and not only the deed, but the whole matter, and all the accompanying facts, must be examined, in order to ascertain the real nature and character of the transaction. A tenant for life had the power of appointing the settled property amongst such of his children as he should think fit. The trustees had, in breach of trust, lent him part of the trust monies, without taking any security. In 1834 the tenant for life appointed to his daughters the money so lent and £500 in exclusion of his son. Contemporaneously, the daughters exchanged the sum so appointed for an estate of the father, and the old trustee retired. The transaction was supported, the estate being worth the amount given in exchange. By the marriage settlement of William Askham and Elizabeth, his wife, dated in 1800, certain freeholds at Woodside, Wilberfoss, and Thursday's Market were settled on them successively for life ; and after the death of the survivor, to the use of all and every, or such one or more of their children as William Askham should appoint, and, in default, between them equally. Other property was thereby settled on them for life, successively, and after the decease of the survivor, to [38] the use of the first and other sons of the marriage in tail male. The settlement contained a power to the trustees, to sell and reinvest the proceeds in landsf and in the meantime to invest the proceeds "in Government or 946 ASKHAM V. BARKER 17 BEAV. 39. real securities." It also contained a power to appoint new trustees. Oswald Allen and Thomas Harper were trustees of the settlement. Ou several occasions between the year 1801 and 1834, the trustees sold various portions of the property, and out of the proceeds they, in 1802 and 1811, lent to Mr. Askham sums amounting in all to £4075, upon mortgage of some property belonging to him, called Fishergate. Subsequently, in 1817, 1818, and 1828, they lent him further parts of the trust property, amounting to £2100 and .£105, without taking any security for the same, and thereby committing a breach of trust. In 1834 the transaction now complained of took place. At this time his wife was dead, and he had five children then living, namely, the Plaintiff, John Askham and four daughters, the youngest of whom was thirty-one years of age. He possessed the Fishergate property, subject to the mortgage to the trustees for £4075, and another property called Fielclhouse, subject to a mortgage thereon, and he was indebtefPto the trustees in the sums of £2100 and £105. By deed, dated the 18th of March 1834, William Askham appointed the two sums of £2100 and £105 due from him, and also a further sum of £500, part of the remaining trust monies, between his four daughters, subject to his life interest therein. [39] By indentures of the 24th and 25th of March 1834, made between William Askham and his four daughters, William Askham conveyed the Fishergate property (subject to the charges thereon and to his life interest therein), and Fieldhouse, free from the £500, but subject to his life-estate, to his four daughters in fee, and they, by way of exchange, assigned Mr. Askham their shares in the three sums amounting together to £2705 appointed to them by the deed-poll of the 18th of March 1834; and by indentures of the same date (24th and 25th of March 1834) two new trustees were appointed in the place of Oswald Allen, who wished to retire, and Thomas Harper, who had died. William Askham afterwards, in 1844, executed a second appointment, whereby he appointed the trust property not comprised in the previous appointment, and all others the property comprised in the settlement, to his three daughters (the fourth being then dead). William Askham having died on the llth of June 1848, the Plaintiff instituted the present suit, whereby be alleged that all the deeds of 1834 formed part of one transaction, and were a mere devise to enable William Askham to release himself from liabilities which he was unable to meet, and that the whole originated in the desire of the trustee to get released from the consequences of the breaches of trust committed by them in advancing the trust money to William Askham, and which he could neither repay nor secure. He further alleged that there was a stipulation upon making the appointment, that the daughters would accept the property at Fishergate and Fieldhouse as a security for the repayment of the trust monies so applied, and for which it was an insufficient security. That thereby William Askham not only avoided the necessity of giving security, but had ob-[40]-tained an advantage to the extent of £500, the residue purchase-money of Fieldhouse. The bill prayed that the deed-poll of the 18th of March 1834 might be declared a fraudulent exercise of the power, and that both that deed and the indentures of the 24th and 25th of March 1834 might be declared void, and delivered up to be cancelled, and that the estates of Oswald Allen and William Askham might be declared liable to make good all the monies appointed and for consequential relief. The evidence, which is fully set out in the judgment, shewed, that though the whole of these matters might have formed but one transaction, and were conducted together, yet that there was no such stipulation or condition between the father and the daughters, as alleged by the Plaintiff, and that the value of the property, given by the father in exchange was, at the time, sufficient to secure the amount given by the daughters. Mr. E. Palmer and Mr. Freeling, for John Askham, the Plaintiff. The transaction was a fraudulent bargain and corrupt exercise of the power. Mr. Askham, the father, had fallen into difficulties in 1817, and, to relieve himself, he obtained advances of money from the trustees of the settlement, who thereby committed breaches of trust, as well by taking no security at all, in some cases, as in taking an insufficient security 1TBEAV.. ASKHAM V. BARKER 947 in others. Being unable to give sufficient security or to set the trust matters on a proper footing, and wishing to save the trustees from the consequence of their breaches of trust, he made the exclusive appointment of the 18th of March 1834, having previously made a stipulation or condition for his doing so, that his daughters, the appointees, should assign to him the sums so appointed, in exchange for a property of [41] less value. He therefore, in reality, obtained pecuniary assistance from his daughters, in consideration of his exercising the power in their favour. It is impossible, therefore, for such a transaction to stand, Harrison v. Ran/lall (9 Hare, 397); Conolly v. M'Dermott (Beat. 601); Jackson v. Jackson (Drury, 91, 120); Lane v. Page (Amb. 233); Daubeny v. Cockbwrn (1 Mer. 626); Arnold v. Hanlmck (7 Sim. 343); and Sugden, Eeal Property (p. 513)...
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