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Bagshaw v The Eastern Union Railway Company

Nominate Series English Reports Cited authorities 8 Cited in 21 Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date09 February 1850
Date09 February 1850
CourtHigh Court of Chancery

English Reports Citation: 42 E.R. 151

HIGH COURT OF CHANCERY

Bagshaw
and
The Eastern Union Railway Company

S. C. 7 Hare, 114; 2 Ha. & Tw. 201; 6 Rail. Cas. 152; 19 L. J. Ch. 410; 14 Jur. 491. See Taylor v. Chichester, &c., Railway Company, 1867, L. R. 2 Ex. 374; Riche v. Ashbury Carriage Company, 1874, L. R. 9 Ex. 288.

[382] loader v. clarke. Feb. 5, 1850. A woman a few days before her marriage, and without the knowledge of her intended husband, transferred a sum of stock to trustees upon a parol trust, as alleged by the trustees, for her separate use for life, and, after her death, for the benefit of her childen. The fact of this transfer became known to the husband some time after the marriage. The dividends were received by the wife from the date of the marriage until her death, which took place seventeen years after. After her death the husband filed a bill, praying a transfer of the stock, and containing a statement that the dividends were duly paid to the wife during the coverture. Held, under the circumstances, that the husband was precluded from asserting his claim to the stock as having been transferred in fraud of his marital right. This was an appeal from the decree of the Vice-Chancellor Wigram, bearing date the 9th February 1849, dismissing the Plaintiffs bill. 2MAC. &0. MS. LOADER V. CLAHKE 149 The bill was filed on the 7th June 1847 by Joseph Thomas Loader against Richard Frederick Clarke the elder, and Richard Frederick Clarke the younger, and the four infant children of the Plaintiff, and stated that Margaret Sophia Loader, the late wife of the Plaintiff, was, previously to her marriage with the Plaintiff, absolutely entitled to a sum of 250 in the three per cent. Reduced annuities, and. which sum was, until the transfer therein mentioned, standing invested in her, the said M. Sr Loader's then name of M. S. Clarke solely, in [383] the books of the Governor and Company of the Bank of England. The bill then stated that, in the month of October 1827, the Plaintiff and the said M. S. Loader intermarried, and that a day or two previously to such marriage the saicl M. S. Loader, without the knowledge or privity of the Plaintiff and under the advice of her father and brother, the said R. F. Clarke the elder and K. F. Clarke the younger, transferred the said sum of .250 threa per cent. Reduced annuities into, and the same was then standing in, the names of the said R. F. Clarke the elder, R. F. Clarke the younger, and the said M. S. Loader by her then name of M. S. Clarke in the said books; that the Plaintiff did not discover that such sum of stock had been so invested until some considerable time after the marriage, The bill then stated that it was alleged by the Defendants, and the Plaintiff believed and admitted the fact to be, that all the dividends which accrued due upon the said sum of 250 three per cent Reduced annuities during the lifetime of the said M. S. Loader, were duly paid to her during her lifetime; that she died on or about the 20th February 1844; that the Plaintiff had taken out administration to her under the circumstances thereinafter mentioned: that the Defendants pretended that the Plaintiff's wife had made a valid parol declaration .of trust of the stock in question for her separate use for life, and, after her death, for her children; and, after negativing such pretences, the bill prayed a transfer of the stock to the Plaintiff as administrator of his wife. The Defendants (the Clarkes), by their answer, stated that when the sum of 250 three per cent. Reduced annuities was so first transferred into the joint names of the Defendants and M. S. Clarke, she, the said M. S. Clarke, stated to the Defendant, R. F. Clarke the elder, that she, M. S. Clarke, wished, and the Defendants [384] believed that it was the intention of the said M. S. Clarke at-the time of such transfer, and also afterwards, up to the time of her decease, that the dividends on the said sum should be paid to her, the said M. S. Clarke, during her life for her separate use, and that, in case the Plaintiff died in the lifetime, the. sum of stock should be re-tranaferred into her own sole name, but that, if she should happen to die in the lifetime of the Plaintiff, leaving any child or children, then that they, the Defendants, should retain the sum of stock until such child or children should attain the age of twenty-one years, and, then, that the same sum of 250 three per cent. Reduced annuities, should be divided equally among such children or be transferred to such only child; and they also stated that since June 1844, when the proposed transfer to the Plaintiff (the particulars as to which are hereinafter stated) was about to have been made, they had been advised by counsel that they could not safely make such transfer. The following facts appeared in evidence, or were admitted by the solicitors on both sides. On the 20th April 1844, being soon after the death of the Plaintiff's wife, the Plaintiff's solicitor wrote to the Defendant, R. F. Clarke the elder, asserting his right to the stock with the accumulations. In answer to this letter, a proposal was made by the solicitor of the Defendant that the Plaintiff should consent to have the stock settled on himself for life, with remainder to his children. This proposal was refused on the part of the Plaintiff. After some further communication between the solicitors of the Plaintiff and the Defendants (the Clarkes), it was agreed that the atock should be transferred to the Plaintiff on his obtaining administration to his wife and giving an indemnity; and the following is an extract from a letter which appeared to [385] have passed from the solicitor of the Defendants to the solicitor of the Plaintiff:-" Mrs. Loader before her marriage received a legacy of 150, with which and other monies she had saved she bought 250 three per cent. Reduced annuities in her own name, and four or five days before her marriage she transferred such stock into the names of herself, father, and brother, for the purpose, as she states, of preserving it for any children she might have. I am desirous, and, I assure you, Mr. Clarke is also, to save Mr. Loader 150 LOADER V. CLARKE 2 MAC. * 0. 388. every possible expense, but I cannot dispense with the administration, though I I think I may with the release on Mr. Loader giving a proper acknowledgment of the transfer of the itock and a receipt in full of all demands relating thereto. If you think I shall be safe in this mode of dealing, I shall be satisfied. On the 1st June 1844 tie Plaintiff obtained letters of administration to his wife, and on the 15th June, the solicitor of the Defendants wrote appointing an early day for the transfer of the stock to the Plaintiff. The Plaintiff, however, did not attend at the time and place appointed, and from that time until May 1847 he took no steps whatever for enforcing his claim. On the 18th of May 1847 the Plaintiffs solicitor revived the claim; and, on that occasion, and for the first time, the Defendant, R. F. Clarke the younger, informed the Plaintiffs solicitor that he would not consent to a transfer of the stock. On the 31st May, however, the Defendants (the Clarkes) offered to transfer the stock into the joint-names of the Plaintiffs children and his late wife, but this offer was rejected. The Plaintiff, then, on the 7th June 1847, filed his original bill in this suit; and having subsequently ascertained that the Defendants had sold the stock, he, on the 9th July 1847, filed a supplemental bill, stating the sale of the stock, and praying that the Defendants [386] might be decreed to pay him the amount of the monies produced by such sale, or to re-transfer the amount, whichever would be most for the Plaintiff's benefit. The Vice-Chancellor having dismissed the bill as against the Defendants (the Clarkes), without costs, and as against the infant Defendants, with costs, the Plaintiff now appealed to the Lord Chancellor. There was some little discrepancy in the evidence of the witnesses examined by the Defendants, as to the ultimate trusts so alleged to have been declared of the stock as before mentioned. the solicitor-general and Mr. W. M. James, for the Plaintiff, in support of the appeal. Assuming that there had been a declaration of trust by the Plaintiffs wife, yet the transfer by her of the stock having taken place pending the treaty of marriage and having been concealed from her intended husband, whose interests were thereby intended to be excluded, was, in the contemplation of a Court of Equity, a fraud on his marital rights, and cannot be supported; Goddard v. Snow (1 Russ. 485), England v. Dawns (2 Beav. 522). The mere fact that the Plaintiff did not in the lifetime of his wife claim the dividends cannot make any difference, though it must be admitted that if he had been aware of the circumstances of the transfer before his marriage he could not afterwards set it aside, St. George v. Wake (1 Myl. & K. 10). It was contended in the Court below by the Defendants that the passage in the bill, stating that the dividends had been duly received by the Plaintiffs wife in her lifetime, afforded presumptive evidence of the Plaintiffs knowledge, but that statement is founded on the communication made [387] by the Defendant, R. F. Clarke the elder, after the death of the wife, and not upon any previous knowledge of the Plaintiff. The case of De Manneville v. Crompton (1 V. & B. 354) was relied upon by the Vice-Chancellor, but it is clearly distinguishable from the present. (They also referred to Taylor v. Pugh (1 Hare, 608).) Mr. Malins and Mr. Eddis, for the infant Defendants. Mr. Wood and Mr. Hallett, for the Defendants, the Clarkes. thi lord chancellor [Cottenham], (without calling upon the Respondents), after observing that it was quite clear that if the fact of the transfer had been kept secret from the Plaintiff, and if during all the time of his marriage he had known nothing of the...

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