Baker v Bradley
| Jurisdiction | England & Wales |
| Judgment Date | 20 November 1855 |
| Date | 20 November 1855 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 233
BEFORE THE LORDS JUSTICES.
S. C. 2 Sm. & G. 531; 25 L. J. Ch. 7; 2 Jur. (N. S.), 98; 4 W. R. 78. See Turner v. Collins, 1871, L. R. 7 Ch. 335 (n.). Followed, In re Smith, 1884, 51 L. T. 501.
7DBO.M.*O.B97. BAKER V. BRADLEY 233 [597] baker v. bradley. Before the Lords Justices. July 25, Nov. 5, 20, 1855. [S. C. 2 Sm. & G. 531; 25 L. J. Ch. 7; 2 Jur. (N. S.), 98; 4 W. R. 78. See Turner v. Collins, 1871, L. R. 7 Ch. 335 (n.). Followed, In re Smith, 1884, 51 L. T. 501.] Property was devised in trust for the testator's daughter and her assigns for her life, and to permit her to receive the income for her life for her separate use, with a direction that her receipts alone, or of some person or persons authorized by her to receive any payment of the income, after such payment should have become due, should, alone, notwithstanding her marriage, be good discharges. Held, that she was restrained from anticipation. Transactions between parent and child, if in the nature of a settlement of property or rights, are regarded with favour, and not with minute regard to the consideration; but if in the nature of bounty from the child soon after he attains majority, are to be viewed with jealousy, and as the subject of interposition of the Court to guard against undue influence. A mortgage was made of property by a father and son, immediately after the latter had attained his majority, to secure debts due from the father, to some extent incurred in improvements on the property and in maintaining and educating the son. The mother joined in the security, for the purpose of subjecting to it her separate estate, which she was, however, by a clause not recited or noticed in the mortgage, restrained from anticipating. The son had no separate advice on the occasion. Held, that the mortgage was not capable of being supported as a family arrangement, but was void as obtained by undue influence. An agreement held impeachable under a bill not directly stating it. Field v. Evans, 15 Simons, 375, considered correct. This was the appeal of the Plaintiff from the dismissal with costs of the bill by Vice-Chancellor Stuart The case is reported below in the 2d Volume of Messrs. Smale & Giffard's Reports (page 531), where the facts are fully stated. The following summary of them is transferred to this place from the judgment of Lord Justice Turner. The bill was filed by William Baylis Baker for the purpose of having a mortgage, dated the 2d of September 1848, to the Defendant J. Bradley, for securing the sum of £1300 and interest, and another mortgage of the same date to John Lovegrove (now vested in the Defendants Thomas Cuff Adams, Joseph Lovegrove and William Cottier, his representatives) for securing the sum of £500 and interest, declared to be absolutely void as against him, and delivered up to be cancelled, and for the purpose of having it further declared that [598] another mortgage, dated the 28th of October 1850, to the Defendant Joseph Lovegrove, for securing the sum of £700 and interest, ought to stand aa a security against him for so much only of the £700 as was due from him to the Defendant Joseph Lovegrove at the date of that mortgage. Charles Baker and Ann his wife, the father and mother of the Plaintiff, were also made Defendants to the suit. William Baylis by his will dated the 25th day of August 1835, gave certain messuages and hereditaments of which he was siesed to Thomas Clutterbuck Croome, as follows :-" To hold the same to the said Thomas Clutterbuck Croome, his heirs and assigns for ever, to the use of and in trust for my said daughter Ann Baker and her assigns for and during the term of her natural life, and to permit and suffer her to receive the rents and income to arise therefrom during the term of her natural life separate and apart from her present or any future husband, and not subject to his debts, engagements or control; and I declare that the receipts of my said daughter Ann Baker alone, or of some person or persons authorized by her to receive any payment of the said rents and income, after such payment shall have become due, notwithstanding her said present or any future marriage, shall alone be good discharges for the said rents and income, or for so much thereof as shall be thereby acknowledged to have been received. And from and immediately after the determination of the estate hereinbefore limited to the use of and in trust for the said Ann Baker for her life as aforesaid, then to the said Thomas Clutterbuck Croome and his C. xxiv.-8* 234 BAKER V. BRADLEY 7 D£ 0. M. & 0. 5M. heirs during the natural life of my said daughter, in trust to support the contingent uses and estates hereinafter limited, yet to permit and suffer [599] the aaid Ann Baker to receive and take the rents and income to arise from the said hereditaments during the term of her natural life as aforesaid, and from and immediately after the decease of the said Ann Baker, then to the use of and in trust for the said Charles Baker, if he shall survive the said Ann Baker, for and during the term of his natural life, to enable him to support himself and to support and bring up the children of the said Ann Baker; and in case the said Charles Baker should die in the lifetime of the said Ann Baker, and if she should marry any future husband who should happen to survive her, then to the use of and in trust for any future husband of the said Ann Baker who may happen to survive her, for and during the term of hia natural life; and from and immediately after the decease of the survivor of them the said Ann Baker and the said Charles Baker, and of any future husband of the said Ann Baker, if such future husband shall survive her, then to the use of all and every or any one or more of the children, grandchildren or other issue of the said Ann Baker by the said Charles Baker, or by any future husband (such grandchildren, issue to be born beiore any appointment shall be made to them respectively) in such manner and form, and, if more than one, in such parts, shares and proportions, and with such limitations over, or substitutions in favour of any one of the others of the said children, grandchildren and issue respectively, and at such time or times, age or ages, day or days, and in such contingencies, and under and subject to such directions and regulations for maintenance, education and advancement, and to such conditions as the said Ann Baker, notwithstanding her present or any future husband, at any time or times and from time to time by any deed or deeds to be signed, sealed and delivered by her in the presence of two or more credible witnesses, to be with or without power of revocation and new appoint-[600]-ment, or by her last will and testament in writing or any writing in the nature of a last will and testament, or any codicil or codicils to be respectively signed and published by her in the presence of and attested by three or more credible witnesses, shall direct, limit or appoint, or give and devise the same; and from and until default of and from time to time, and subject to such direction, limitation and appointment, gift or devise, then to the use of and in trust for the child of the said Ann Baker, if only one, whether male or female, and for all the children of the said Ann Baker, both male and female, if more than one, and whether by her present or any future husband, to be equally divided between or among them, share and share alike as tenants in common and not as joint tenants, and the heirs of the body and several and respective bodies of the same children respectively lawfully issuing, with cross - remainders in tail between and among such children of the said Ann Baker; and in default of such issue, then to the same uses, upon the same trusts, and for the same estates as are hereinalter devised to the said Thomas Clutterbuck Croome, to the use of and in trust for my daughter Mary Baylis and her children, and the issue of such children; and in default of issue of all the children of the said Ann Baker and of the said Mary Baylis, then to the use of and in trust for the said Ann Baker, her heirs and assigns absolutely." The testator then devised other estates to his daughter Mary Baylis upon several trusts, and in default of children of the said Mary Baylis, then on the same trusts in favour of Ann Baker and her children, and failing children of Ann Baker, to Mary Baylis absolutely. He appointed Ann Baker and Mary Baylis executrixes of his will. The testator died soon after the date of his will. The Plaintiff William B. Baker was the only child of the [601] testator's daughter, the Defendant Ann, the wife of the Defendant C. Baker. He was an infant at the time of testator's death, and attained twenty-one on the 25th of May 1848. His mother, the Defendant Ann Baker, was at this time about fifty-three years of age; and his aunt, Mary Baylis, who had been married to Mr. Holder, was then a widow without children, and about forty-six years old. During the minority of the Plaintiff the Defendants C. Baker and Ann his wife borrowed the sum of £1000 of the Defendant J. Bradley, and the sum of £500 of John Lovegrove, a solicitor at Gloucester, upon mortgages of Mr. and Mrs. Baker's life interests in the estates devised by the will of William Baylis (the Defendant Ann Baker conveying her life-estate as if she was not restricted from anticipating) and the recitals of the will of William Baylis contained in the mortgages not referring to the 7 DE 0. M. ft 0. 60Z BAKER V. BRADLEY 235 receipt clause following the limitations to the separate use of the Defendant Ami Baker and Mary Baylis. It appeared, however, probable that these recitals might have been copied from a previous mortgage of the life interests to a person of the name of Carter, which was transferred to the Defendant Bradley, and which had been settled by another solicitor, a Mr. Clutterbuck, who had acted for all parties...
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