Cooper v Greene
| Jurisdiction | England & Wales |
| Judgment Date | 13 July 1861 |
| Date | 13 July 1861 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 800
BEFORE THE LORD CHANCELLOR LORD CAMPBELL AND THE LORDS JUSTICES.
S. C. 4 L. T. 311; 7 Jur. (N. S.), 785; 9 W. R. 541. See also 3 De G. F. & J. 271. See Evans v. Benyon, 1887, 37 Ch. D. 336; Lyell v. Kennedy, 1889, 14 App. Cas. 459. Explained, Price v. Phillips, 1894, 13 R. 191.
[58] life association of scotland v. siddal. cooper v. greene. Before the Lord Chancellor Lord Campbell and the Lords Justices. Jan. 14, 15, Feb. 9, 1861. [S. C. 4 L. T. 311 ; 7 Jur. (N. S.), 785 ; 9 W. R. 541. See also 3 De G. F. & J. 271. See Emms v. Benyon, 1887, 37 Ch. D. 33(5 ; Lyell v. Kenneily, 1889, 14 App. Cas. 459. Explained^ Price v. Phillips, 1894, 13 R. 191.] Semhle, where a trust is definite and clear, a cestui que trust will not be held to have sanctioned a breach of trust merely on the ground that while his interest was reversionary he knew of the breach of trust and did not interfere. A trustee of real estate devised his real estate to G. T., subject to the payment of a legacy, so that the trust estate did not pass. G, T. however acted as trustee. Held, that she must he deemed a trustee upon express trust, and that the Statute of Limitations was therefore no defence to a claim against her estate in respect of a breach of trust. G. T. improperly allowed part of the trust fund to be received, by B. N. the tenant for life. S., one of the reversioners, borrowed money from C. and mortgaged to him her share in the trust funds. B. N. at the same time gave C. a bond and a mortgage of other property for the same debt, B. N. being a surety for S. in this transaction. The debt having been paid out of B. N.'s estate : Held, that G. T.'s representative could not claim to have this payment set off against the claim of S. in respect of the misapplied part of the trust fund. Money was held in trust to be invested in the purchase of land, to be settled so that S., a married woman, would have been equitable tenant in tail in remainder. The money was improperly received by the tenant for life, who bought with it freeholds and copyholds in his own name. After this S. and her husband joined in mortgaging her interest in the trust funds and the lands to ho purchased with them, and a fine was levied to the use of the mortgagee. After this the purchased freeholds and copyholds were declared by decree to belong to the trust. Held, that as regarded the copyholds the security was invalid as against S., but good as against her husband. An estate stood limited, subject to a life-estate, to five persons as tenants in common in tail, with cross-remainders between them in tail. One of these five perspns, a married woman, concurred with her husband in a deed mortgaging her fifth; share and all other the share and interest to which she might become entitled by the death of any of the other tenants in tail without issue, and the deed contained a covenant to levy a fine of the property expressed to be conveyed by the deed. A fine was levied, purporting to extend only to the fifth share. Afterwards one of the other tenants in tail died without issue and without having barred his estate tail. Held, that there was an error in the fine, which was caused by 3 & 4 Will. 4, c. 74, s. 7, and that the fine was effectual as to one-fourth, and not as to one-fifth only. The first of these cases (The Life Association of Scotland v. Si l/lal) came before the Court upon appeal from an order of the Vice-Chancellor Sir John Stuart, refusing with costs an application on the part of John Seaman and Georgiana Spencer his wife, and Charles Lee the assignee under a fiat in bankruptcy [59] against John Seaman, SDEO.F. *J.M. LIFE A8SOOIATION OF SCOTLAND V. SIDDAL 801 to vary the chief clerk's certificate in that cause. The second appeal was from an order of the same Judge made on further consideration in the cause of Cooper \. Greene, a suit relating to the same property. William Spencer, by his will dated the 25th of March 1798, devised his real estates unto and to the use of William Thompson, his heirs and assigns, upon trust during the life of his wife Mary Spencer to pay her an annuity of 150 out of the rents, and to pay the surplus of the rents to hia daughter Catherine Norton, the wife of Benjamin Norton, and after the decease of his wife he directed that the estates should remain to Thompson, his heirs and assigns, to the use of his daughter Catherine Norton for life, with remainder to Benjamin Norton for life, with remainder to the children of Catherine Norton as tenants in common in tail, with cross-remainders between them in tail. And it was provided by the will that in case Benjamin Norton and Catherine Norton, or the survivor, should be desirous that the whole or any part of the devised estates should be sold, it should be lawful for Thompson, his heirs or assigns, to sell and dispose of the same, and give receipts for the purchase-money. And the testator directed that the purchase-monies should be laid out either in the purchase of other hereditaments, or upon good and sufficient security at interest in the name of his said trustee, and that the hereditaments to be purchased should be. conveyed to Thompson, his heirs and assigns, to the uses above declared, and that the interest of the money to be placed out at interest should be paid to the persons for the time being entitled to receive the rents of his estates, and that the principal monies to be placed out should, after the death of Benjamin and Catherine Norton, be equally divided between all such children as Catherine Norton [60] might leave at her decease, the shares of the children to be vested at twenty-one. The testator William Spencer died in January 1799. William Thompson accepted the trusts of the will. He sold the greater part of the devised estates, and permitted the proceeds of the sale, amounting to 7000, to be received by Benjamin Norton, who laid out JE6500, part of these proceeds, in the purchase of freeholds and copyholds at Bawburgh in Norfolk, but applied the residue to his own use. No question, however, arose on either of these appeals as to the application of this residue. William Thompsan died in the year 1806, having by his will devised his real estates to hia sister Grace Thompson, but in such terms that the estates remaining vested in him as trustee under the will of William Spencer did not pass by the devise (Rackham v. Siddal, 16 Sim. 297), and Grace Thompson was not his heiress at law. Grace Thompson nevertheless assumed to have become trustee under the will of William Spencer, and in the year 1807 she sold the rest of the estates devised by his will for 6300, and purported to convey the same to the purchaser. She did not actually receive any part of this purchase-money of 6300, but permitted the whole to be received by Benjamin Norton, he and his brother Francis Norton joining in a bond to her conditioned for indemnifying her against any damage she might sustain in consequence of ita being received by him. Benjamin Norton applied the whole of this sum of 6300 to his own use, and the contest in the appeal in the first above-named suit was as ta the right to recover from the estate of Grace Thompson a share of this sum. [61] Catherine Norton, the daughter of the testator William Spencer, and the tenant for life under his will, had issue eleven children, five of these children attained twenty-one, andithe remaining six died infants and unmarried. Of the five children who attained twenty-one, one died in 1844, without issue, and without having barred his estate tail under the will. The Appellant Georgiana Spencer Seaman was another of the five children who attained twenty-one. She was born on the 3d of June 1806 or 1807, in which of those years it was disputed, and consequently she attained twenty-one on the 3d of June 1827 or 1828. On the 13th of December 1828 she married the Appellant John Seaman, and she had ever since been under coverture. Up to the time of her marriage she lived with her father and mother, and some evidence was entered into in the cause with a view to fix her with having then become acquainted with the fact of the trust funds being in the hands of her father Benjamin Norton, but the Court considered the evidence insufficient. A great variety of deeds were at different times executed by the children of Benjamin and Catherine Norton, creating incumbrances on their interests under the will of William Spencer, C. XXV.-26 802 LIFE ASSOCIATION OF SCOTLAND V. SIDDAL SDBG.F.4J.M. some of which were relied on as shewing that Mrs. Seaman knew of the breach of trust. One of these was a deed executed by Mrs. Seaman on the 1st of April 1828, some months before her marriage, securing an annuity on her interest in the property. Thia deed contained a recital that the trust-monies had been lent to Benjamin Norton on mortgage of the Bawburgh estate, and the operative part referred to the sale monies " then remaining in the hands of the said Benjamin Norton upon the security of a mortgage of his aforesaid estate." On the 20th of April 1830 Mr. and Mrs. Seaman [62] executed a mortgage to James Currie to secure 1700 and interest. This deed recited the will of the testator, his death and the death of Mary Spencer, and that certain of the devised estates had, at the request of Benjamin Norton and Catherine Norton, been sold, " and divers other lands and hereditaments have been purchased with part of the money arising by such sales, situate at Bawburgh in the county of Norfolk, and the remainder thereof is now in money; and whereas the said Benjamin Norton and Catherine Norton had five children, all of whom attained the age of twenty-one S ears; and whereas the said Georgiana Spencer Seaman, formerly Georgiana Spencer orton, is one of the five children of the said Benjamin Norton and Catherine Norton, and is entitled for an estate tail in reversion expectant on the decease of the survivor of them the said Benjamin Norton and...
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