Birley v Birley
| Jurisdiction | England & Wales |
| Judgment Date | 17 March 1858 |
| Date | 17 March 1858 |
| Court | High Court of Chancery |
English Reports Citation: 53 E.R. 651
ROLLS COURT
S. C. 27. 27 L. J. Ch. 569; 4 Jur. (N. S.) 315; 6 W. R. 400. See In re Turner's Settled Estates, 1884, 28 Ch. D. 217.
28BEAV. 299. BIRLEY V. BIRLEY 651 [299] birley v. birley, March 12, 17, 1858. [S. C. 27 L. J. Ch. 569; 4 Jur. (N. S.) 315; 6 W. E. 400. See In re Turner's Settled Estates, 1884, 28 Ch. D. 217.] Observations on the decision in Tucker v. Sanger, M'Clel. 424. An absolute appointment was made to an object of a power, under a prior " understanding " between the appointor and appointee, to hold in " trust" for persons, some of whom were objects and some not. Held, that the whole was void. A parent had a power to appoint to children alone. She appointed to two children absolutely. The next year the appointees settled the property on children and grandchildren of the parent, by a deed reciting that, when the appointment was made, it was understood, between the appointor and appointees, that the latter should consider themselves as possessed of the property upon the trusts of the settlement. Held, that the transaction was a fraud on the power and wholly void. On the marriage of Mr. and Mrs. Birley, a sum of 2000, then advanced by Mrs. Birley's father, was settled by an indenture of the 13th of January 1800, upon the following trusts :- Upon trust for Mr. and Mrs. Birley successively, for their lives, and from and after the decease of the survivor of them, upon trust for all and every, or such one or more of the children of the marriage, in such parts, shares and proportions, manner and form, as Mr. and Mrs. Birley should jointly appoint, and in default as the survivor of them should by deed, with or without power of revocation, or will appoint. And in default, in trust for all such children as should be living at the decease of the survivor of them, and the issue of such as should be then dead leaving issue, share and share alike, the issue of a deceased child taking their parents' shares. Mrs. Birley's father afterwards, by his will, added a sum of 16,856 to the settlement, which was to be held subject to the same trusts. Mr. Birley died in 1833, without having concurred in any joint appointment. There were ten children of the marriage, viz. :-Hornby, John, George, Richard, Elizabeth, Fanny, Alice, William, and two others, Daniel and Margaret. [300] By deed-poll, dated the 12th of May 1847, Mrs. Birley irrevocably appointed that, after her decease, the trustees should stand possessed of the fund left by her father's will in trust to pay thereout, as soon as conveniently might be after her decease, the sum of 100 to each of her three sons, Hornby, John and George, or to the issue of any such son, in case any of such sons should die before the same should become payable; the further sum of 100 unto the children of her said late son Riciard who should be living at the time of her decease; the further sum of 100 unto the children of her said late daughter Elizabeth who should be living at the time of her decease; and the further sum of 100 to her daughter Fanny. And as to all the residue to which Margaret Birley might be entitled of the said residuary estate under the said will, she directed that her trustees should divide the same equally between her son William Birley and her said daughter Alice Buck, and their respective executors, administrators and assigns, as their own proper goods and chattels for ever. By a deed-poll, dated the 24th day of April 1848, under the hands and seals of William Birley and Alice Buck, after reciting the said last-mentioned deed of appointment, and reciting, that at the time the appointment was made by Margaret Birley, it was understood between her and William Birley and Alice Buck, that they should, in fact, consitler themselves as possessed of the said residue so appointed to them, after deducting from the respective shares thereof the several sums so absolutely appointed as aforesaid, upon the trusts in the now stating deed declared concerning the same: in pursuance of such understanding, and in order to carry the same into full effect, William Birley and Alice Buck thereby declared that the residue was so appointed to them, and that they and the survivor of them, and the [301] executors and administrators of such survivor, should hold the same, as to one-eighth for Hornby for life, with...
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