Dashwood v Lord Bulkeley
| Jurisdiction | England & Wales |
| Judgment Date | 27 November 1804 |
| Date | 27 November 1804 |
| Court | High Court of Chancery |
English Reports Citation: 32 E.R. 832
HIGH COURT OF CHANCERY
[230] dashwood . Lord bulkeley. Nov. Ikth, 21th, 1804. Portion given over as to the greater part upon marriage without consent of executors. A conditional consent, upon the offer of a settlement, retracted on a subsequent refusal to settle, and the marriage taking place afterwards: no relief against the forfeiture. Elizabeth Dutens by her Will gave and bequeathed the sum of 12,000 to trustees, in trust, to apply out of the interest unto her grand-daughter Elizabeth Callander the sum of 250 a-year for her maintenance and education, until she should attain the age of twenty-one years ; and the residue of the dividends, &c., to accumulate for her benefit; and when she should have atained her age of twenty-one, or be married, in trust to apply the dividends of the funds, in which the said sum of 12,000 and the savings should be invested, for the benefit of Elizabeth Callander during the residue of her life for her sole and separate use, exclusive of her husband, &c. ; and immediately after her death, in case she should leave any children living at her death, in trust to transfer the funds unto and among all such children, equally, to be vested in the sons at the age of twenty-one, in the daughters at that age or marriage ; and in case there should not be any child, &c., in trust for the testator's daughter Elizabeth Dutens, and her'grandson Peter John James Dutens, and their respective children, in the same manner, and subject to the same contingencies and limitations, as the original legaciesjgiven to them respectively. 10 VES. JUN. 231. DASHWOOD V. BULKELEY (LORD) 833 The testatrix also gave to the trustees a subscription of 100 in the Irish Tontine ; upon trust, until her grand-daughter Elizabeth Callander should attain the age of twenty-one or be married, to invest the annual produce in Government or real securities, to accumulate ; and, when she should have attained that age or he married, in trust for her separate use, &c. ; and in case of her death before twenty-one or marriage, the savings during her minority to sink into the residue of the testatrix's personal estate. The testatrix then directed, that [231] Elizabeth Callander should during her minority be brought up and educated under the care and direction of Elizabeth Dutens, and in case of her death by such persons as she should by Will appoint; and in case Elizabeth Callander should by any means whatsoever during her minority be removed from the custody and tuition of Elizabeth Dutens during her life, or of such persons as she should appoint, then the yearly sum directed to be paid out of the annual produce of the 12,000 for her maintenance, &c., should cease; and the whole income accumulate upon the trusts before directed as to the savings. And it was thereby provided and declared, that if Elizabeth Callander should at any time marry, either during her minority, or after she should attain her age of twenty-one years, without the consent in the writing of the testatrix's said executors, in such case, instead of being permitted to receive the whole dividends or annual produce of the bequests therein before given to or in trust for her, as aforesaid, the testatrix thereby directed, that the sum of 400 only should from thenceforth bo paid to her thereout during the residue of her life for her separate use ; and that in such case the residue of the dividends or annual produce of all such bequests so given for her benefit, as aforesaid, should after such marriage without such consent, as aforesaid, accumulate for the benefit of her children or other persons, who under the Will should become entitled to the capital upon the death of Elizabeth Gallander ; and, that if she'should survive Elizabeth Dutens andPeter John James Dutens, and there should be a failure of issue of both, so that the whole fortune should centre in Elizabeth Callander, she and her husband, if the trustees should think fit, should take the surname and arms of Dutens ; and, that her executors and trustees should in case of her marriage, if they [232] should think fit, lay that injunction upon the husband and make it part of the stipulation. The testatrix made similar dispositions in favour of Elizabeth Dutens and Peter Joliti James Dutens with similar limitations over in the event of the death of either without leaving children to the survivor and Elizabeth Callander; and in the event of the death of her said daughters and grand-children she disposed of the three several sums of 12,000 upon other trusts. She appointed her four trustees, Lord Bulkeley, Sir Matthew White Ridley, George Bogg, and Keate, to be her executors ; and by a codicil, taking notice, that she had the greatest opinion of the integrity of her executors, and not the least doubt of their care and attention, yet, as some of the objects of her Will were of very tender years, and the trusts probably of long duration, &c., for those reasons, and not from the least diffidence in her executors, she thought it more safe, aa well for them as her daughter and grand-children, to have the direction of the Court of Chancery ; and therefore directed a bill to be filed. The testatrix died in September 1789 ; and a bill was filed according to the direction of the codicil. About the latter end of 1793, George Dashwood, Esq., paid his addresses to Miss Callander ; who had not attained twenty-one, and his solicitor by his direction sent a letter to George Bogg, one of the trustees, dated the 16th of November 1793, declaring his purpose to settle 0000 on his intended marriage with Miss Callander ; in trust for him for life ; remainder to her for life ; remainder to their issue, as he should by Deed or Will appoint; and for want of such issue to his executors and administrators ; with a power to the trustees as his request, to lay out [233] the money in a house or land to be settled to the same uses. Bogg communicated this proposal to the three other trustees ; one of whom, Lord Bulkeley, sent an answer, containing the following passages : I shall beg you to assure Miss Callander, that whatever interests her...
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