Coventry v Chichester
| Jurisdiction | England & Wales |
| Judgment Date | 02 March 1864 |
| Date | 02 March 1864 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 405
BEFORE THE LORDS JUSTICES.
S. C. 2 H. & M. 149; 33 L. J. ch. 361; 11 L. T. 103; 3 N. R. 666; 10 Jur. (N. S.), 435; 12 W. R. 664; 33 L. J. Ch. 676; 11 L. T. 171; 4 N. R. 535; 10 Jur. (N. S.), 896; 12 W. R. 1126; and in House of Lords, L. R. 2 H. L. 71; 36 L. J. Ch. 673; 17 L. T. 35; 15 W. R. 849. See M'Carogher v. Whieldon, 1867, 3 L. R. 3 Eq. 241; Dawson v. Dawson, 1867, L. R. 4 Eq. 509; Paget v. Grenfell, 1868, L. R. 6 Eq. 11; Cooper v. M'Donald, 1873, L. R. 16 Eq. 267; Atkinson v. Littlewood, 1874, L. R. 18 Eq. 604; Smyth v. Johnston, 1875, 31 L. T. 877; Russell v. St. Aubyn, 1876, 2 Ch. D. 404. Distinguished, Bennett v. Houldsworth, 1877, 6 Ch. D. 671. See In re Tussaud's Estate, 1878, 9 Ch. D. 369; Montagu v. Earl of Sandwich, 1886, 32 Ch. D. 537.
[336] coventry v. chichester. Before the Lords Justices. June 23, 24, August 3, 1864. [S. C. 2 H. & M. 149 ; 33 L. J. Oh. 361 ; 11 L. T. 103 ; 3 N. R. 666 ; 10 Jur. (N. S.), 435 ; 12 W. R. 664 ; 33 L. J. Ch. 676 ; 11 L. T. 171 ; 4 N. R. 535 ; 10 Jur. (N. S.), 896; 12 W. R. 1126; and in House of Lords, L. R. 2 H. L. 71; 36 L. J. Ch. 673 ; 17 L. T. 35 ; 15 W. R. 849. See M'Carogher v. JHiieldon, 1867, 3 L. R. 3 Eq. 241; Dawson v. Dawsm, 1867, L. R. 4 Eq. 509; Paget v. Grenfell, 1868, L. R. 6 Eq. 11; Cooper v. M'Dmald, 1873, L. R. 16 Eq. 267 ; Atkinson v. Littlewood, 1874, L. R. 18 Eq. 604 ; Smyth v. Johnston, 1875, 31 L. T. 877 ; Russell v. St. Aubyn, 1876, 2 Ch. D. 404. Distinguished, Bennett v. HmMswarth, 1877, 6 Ch. D. 671. See In re Tussaud's Estate, 1878, 9 Ch. D. 369; Montagu v. Earl of Sandwich, 1886, 32 Ch. D. 537.] A father, on the marriage of his daughter C. C., covenanted to pay £10,000 three months after demand to trustees, to be held upon trust during the joint lives of the husband and wife to pay £200 a year to the wife as pin-money and the residue of the income to the husband, and after the death of either the whole income to the survivor for life, and after the death of the survivor upon the usual trusts of a marriage settlement for children and issue. The father also covenanted to pay interest till the principal was paid. By his will he gave his residuary estate to trustees in trust to convert it into money, pay thereout his debts and legacies, and stand possessed of the residue as to one moiety upon trust to pay the income to his daughter C. C. for life for her separate use, and after her death, then, if she died in her husband's lifetime, upon trust for such persons other than her husband as she should by will appoint, but if she survived him, for such persons as she should by deed or will appoint, and in default of appointment upon precisely similar trusts for his daughter L. P., with an ultimate limitation, in default of appointment, to his nephew C. B.; and as to the other moiety upon precisely similar trusts, except that the dispositions in favour of L. P. preceded those in favour of C. C. The £10,000 was not paid by the testator in his lifetime. Held, by the Lord Justice Knight Bruce, affirming the decision of Vice-Chancellor Wood, dissentiente the Lord Justice Turner, that the £10,000 payable under the settlement must be deducted from C. C.'s moiety of the residue. Held, by the Lord Justice Turner, that the entire dissimilarity of the trusts of the settlement and will, and the directions in the will for payment of debts before the division of the residue into moieties, were sufficient to outweigh the leaning of the Court against double portions, and that the £10,000 ought to be paid out of the whole residue, and not out of C. C.'s moiety ; and, query, whether the first ground alone would not be sufficient. This was an appeal by the Defendant Lady Caroline Mary Chichester from part of an order of Vice-Chancellor Wood, who had held that she could not take a moiety bequeathed to her by her father's will in his residuary estate without deducting 406 COVENTBY V. CHICHESTER 2 DBCLJ. 48.837. therefrom .£10,000, which he had secured by a covenant contained in her marriage settlement (2 Hem. & M. 149). Henry Bevan, the father of the Appellant, had two daughters only, the Appellant and Louisa Harriet. Louisa in the year 1828 married Mr. Paul, and no settlement was ever made upon her by her father. In 1844 the Appellant waa married to Lord John [337] Chicheater, and an antenuptial settlement waa executed, which was made between Lord John Chichester of the first part, the Appellant of the second part, the testator Mr. Bevan of the third part, and trustees of the fourth part, by which the testator covenanted with the trustees, that if the marriage should be solemnized, the testator, his heirs, executors or administrators, would pay to the trustees the sum of £10,000 within three calendar months next after demand of payment should be made by notice in writing to be given by them to the testator, his executors or administrators, and would in the meantime, until payment of the principal sum, pay to the trustees interest for the same at the rate of £3 per cent, per annum, computed from the day of the date of the settlement, by half-yearly payments. Trusts were declared of the £10,000 to the following effect: that the trustees should, during the joint lives of the husband and wife, pay £200, part of the income, to the wife as pin-money, and the residue to the husband, and after the decease of either, pay the whole income to the survivor for life, and after the decease of the survivor, should hold the fund in trust for the issue of the marriage as the husband and wife or the survivor should appoint, and in default of appointment, for such children as should attain twenty-one or marry, and in default of children attaining a vested interest, for the wife if she survived, but if she died in her husband's lifetime, then as she should appoint by will, and in default oi appointment, in trust for the persons who would have been entitled as her next of kin if she had died possessed thereof intestate and without having been married. The testator by his will dated the 3d of December 1859, after making various specific and pecuniary devises and bequests, gave and devised his residuary real and [338] personal estate to the Plaintiffs, upon trusts for conversion, and declared that his trustees should, out of the proceeds pay his debts and legacies, and invest the residue, and hold the same upon trust to pay one moiety of the income of the trust fund to the Appellant for her sole and separate and inalienable use and benefit, exclusively of her then present or any future husband, and so as that the same should not be in any way subject to his or their control, debts, interference or engagements, and with a restraint upon anticipation, and after her decease, upon trust that the trustees should stand possessed of one moiety of the principal of his said residuary trust fund and the interest thereof upon the following trusts, namely, in case Lord John Chichester should be living at the time of the Appellant's decease, upon trust for such person, or persons (other than and except her husband the said Lord John Chichester, and so that he should take neither directly or indirectly any estate or interest therein under any appointment made under this power), and for such estates as the Appellant should by will appoint; but in case Lord John Chichester should die in the lifetime of the Appellant, then for such person or persons generally as the Appellant should by deed while a widow or by will appoint, and in default of appointment, for the separate use of Mrs. Paul for life, with a restraint on anticipation; and after the death of the survivor of the Appellant and Mrs. Paul, then, if Mr. Paul survived Mrs. Paul, upon trust for such persons (other than Mr. Paul) as Mrs. Paul should appoint by will, but if Mr. Paul should die in Mrs. Paul's lifetime, then as Mrs. Paul should by deed while a widow or by will appoint, and in default of appointment, upon trust for the testator's nephew C. J. Bevan. The testator then declared trusts of the other moiety of the fund precisely similar to those of the first moiety, except that the [339] limitations in favour of Mrs. Paul preceded those in favour of the Appellant: and the testator declared his express intention to be, that no part of his will should be construed to give any right or interest of or in his estate and effects, or of or in any part thereof, or of or in the annual proceeds thereof, to Lord John Chichester or Mr. Paul, either in their own rights or in right of his daughters respectively or otherwise; and he declared that, in case any part or share of his estate and effects or any interest, either present or contingent, therein should be adjudged by any Court of law or Equity to be or to be liable to become vested in or held in trust for Lord John Chichester or Mr. Paul, then he gave and bequeathed such last- IDBO.J. * a MO. COVENTRY V. CH1CHESTER 407 mentioned part, share and interest to his said trustees upon trust for his said nephew Charles James Bevan, his executors, administrators and assigns; and the testator appointed Plaintiffs executors of his will. The testator died in 1860, and at his death the £10,000 remained due from his estate. Mrs. Paul had children, who were of age at the date of the will; the Appellant had no child. The question now was whether the £10,000 was, as between the sisters, to be paid out of the whole residue before dividing it into moieties, or to be paid out of the Appellant's moiety. The suit was instituted by the trustees and executors of the will for the administration of the testator's estate, and, on further consideration, Vice-Chancellor W.ood made a declaration that the Appellant was not entitled to the benefits given to her by the will in one moiety of the testator's residuary estate without first deducting therefrom the £10,000 secured by the settlement. [340] Mr. Rolt and Mr. Bristowe, for the Appellant. The...
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