Browne v Butter
| Jurisdiction | England & Wales |
| Judgment Date | 31 January 1859 |
| Date | 31 January 1859 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 1386
BEFORE THE LORDS JUSTICES.
S. C. 28 L. J. Ch. 417; 5 Jur. (N. S.), 879; 7 W. R. 246. Followed, Taylor v. Blakelock, 1886, 32 Ch. D. 560. See Taylor v. London and County Banking Company [1901], 2 Ch. 231.
[663] thorndike v. hunt. browne v. butter. Before the Lords Justices. Jan. 31, 1859. [S. C. 28 L. J. Ch. 417; 5 Jur. (N. S.), 879; 7 W. R. 246. Followed, Taylor v. Blakekck, 1886, 32 Ch. D. 560. See Taylor v. London and County Banking Company [1901], 2 Ch. 231.] A trustee of two different settlements, having applied to his own use funds subject to one of the settlements, replaced it by funds which under a power of attorney from his co-trustee under the other he transferred into the names of himself and his co-trustee in the former. In a suit in respect of breaches of trust of the former settlement, the trustees of it transferred the fund thus replaced into Court on a motion. Held, that the transfer was equivalent to an alienation for value without notice, and that the cestuis que trustent under the other settlement could not follow the trust fund. This was an appeal from the order of the Master of the Rolls upon a petition presented in the above two causes, and the question was whether a fund which had been paid into Court in one of them should be carried to the credit of the other, as belonging to the trusts which were the subject of the latter. The two sets of trusts will be, for the sake of distinction, called the Linzee trust and the Thorndike trust. The Linzee trust was created by the will of Emily Linzee, dated the 24th of March 1842, whereby she bequeathed all her stock and monies upon trust as each of her three daughters Emily, Susannah and Mary Anne should attain twenty-one, to pay to each of them the dividends on one-fifth part of a trust fund for their respective lives, and at their respective deaths to divide each fifth part among the children of each daughter. In 1830 Emily married Warwick Augustus Hunt; in 1836 Susannah married William Cheselden Browne, and in 1838 Mary Anne married James Warwick Woolridge. On the occasion of each of these marriages a settlement was executed, whereby the life interest of the wife was settled to her separate use without power of anticipation. The trustees of Mary Anne Woolridge's set-[564]-tlement were William Cheselden Browne and Warwick Augustus Hunt. Warwick Augustus Hunt, who was an attorney and solicitor, induced the surviving trustee of Mrs. Linzee's will to transfer into the names of the trustees of each of these settlements 5160 3 per cent. Consolidated Bank annuities, and 75 3, 10s. per cent. Reduced Bank annuities, being one-third part of the stock then standing in the names of the trustees of the will. The Thorndike trust was created by the will of George Elliot Vinnecombe, dated the 16th of April 1840, whereby he gave to John Butter, Samuel Mallock and Warwick Augustus Hunt, their executors, administrators and assigns, 8000 consols, upon trust to pay the dividends unto the testator's granddaughter Mary Anne Vinnecombe (afterwards Mary Anne Thorndike) for life, for her separate use, with remainder in trust for her children. Mary Anne Vinnecombe married Charles Francis Thorndike on the 10th of February 1845, and had three children. The 8000 stock was transferred into the names of Mr. Vinnecombe's executors, John Butter, Samuel Mallock and Warwick Augustus Hunt, of whom Samuel Mallock died in 1845, and John Butter retired in 184( . 3DBO. &J. MJ. THORNDIKE V. HUNT 1387 Frederick Cresswell was appointed a trustee in the place of John Butter, and the .8000 consols was transferred into the namea of Warwick Augustus Hunt and Frederick Cresswell. On the 3d of August 1847 Warwick Augustus Hunt [565] and Frederick Cresswell sold out 4746, 19s. 6d. consols, part of the 8000 consols, and on the 9th of February 1848, 3253, Os. 6d. consols, being the residue of the stock standing to that account. The whole of the proceeds of these sales were received by Warwick Augustus Hunt. Proceedings in Chancery being expected on behalf of Mary Anne Thorndike and her children, Warwick Augustus Hunt alleged that the proceeds of the 4746, 19s. 6d. consols sold out and transferred on the 3d of August 1847, had been duly invested upon a mortgage, and he on the 4th of August procured William Cheselden Browne to execute a power of attorney to sell out the fund standing in the names of the trustees of Mary Anne Woolridge's settlement, and by means of this power he on the 8th of August 1848, caused 3253, Os. 6d. consols, part of the 5160 consols, to be transferred from the names of Warwick Augustus Hunt and William Cheselden Browne to the names of Warwick Augustus Hunt and Frederick Cresswell. On the 18th of August 1848, the above suit of Thorndike v. Hunt was instituted, in which Mary Anne Thorndike and her children by their next friends were Plaintiffs, and Warwick Augustus Hunt, Frederick Cresswell and the husband of...
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Case v James
...could not be followed. But here, the fund has always been in the name of Tritton, one of the Turnley trustees, as in Browne v. Butter (24 Beav. 159); the fund is ear-marked, and impressed with the Turnley trusts, and its identity is traced; Harford v. Lloyd (20 Beav. 310). Tritton always he......