Derbishire v Home
| Jurisdiction | England & Wales |
| Judgment Date | 04 March 1853 |
| Date | 04 March 1853 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 32
BEFORE THE LORDS JUSTICES.
See In re Lush's Trusts, 1869, L. R. 4 Ch. 594 (n.), 596.
[80] derbishihe v. home. Before the Lords Justices.(l) Jan. 25, 28, 29, Feb. 14, 15, March 4, 1853. [See In re Lush's Trusts, 1869, L. E. 4 Ch. 594 (n.), 596.] Slaves in the West Indies were bequeathed to executors, upon trusts for a niece of the testator for her life with remainder to her children. The executors having renounced and disclaimed, administration with the will annexed was granted to the niece, who afterwards married a minor. Before her husband had attained twenty-one the husband and wife executed a settlement, reciting that the husband was, in right of the wife, possessed of the slaves, theretofore the property of her 8DEO.M.0.. DERBISHIRE V. HOME 33 late uncle; but not in any manner referring to the will. The settlement purported to assign the slaves to trustees, in trust to sell and invest the proceeds and pay the income for the separate use of the wife for life, without power of anticipation, with, trusts, by way of remainder to the children of the marriage. Before the husband came of age the husband and wife sold the slaves without noticing the settlement in. the contract, but paid part of the purchase-money to one of the trustees of the settlement, the other trustees not concurring in or being in fact aware of the sale or payment. An amicable bill was then filed on behalf of the infant children of the marriage, to have the trusts of the settlement carried into execution, or a new settlement made in conformity with an offer of the husband to execute such settlement on receiving 3500 out of the wife's fortune. Thia bill contained an allegation that the proceeds of the slaves had been invested in the names of the trustees. The trustees, by their answer, admitted the truth of this allegation. The husband and wife, answering separately, disputed the validity of the settlement, and stated that the wife was not intended to be bound by it; but the husband offered to execute a settlement on the above terms. The decree declared the settlement void, and directed a new settlement to be made upon the footing of the husband's offer. A settlement was accordingly executed and the 3500 paid to the husband. Afterwards it was discovered that the admission in the trustees' answer was incorrect, the trustee who received the proceeds of the slaves having applied the money to his own use, and having by false statements induced his co-trusteea to believe, and upon their answer admit, that the investment in their names and his had been made as there stated. His circumstances were such that any attempt to recover the amount at any period would have been hopeless. More than twenty years after the wife was aware of these circumstances she instituted a suit against the co-trustees to make them personally liable for the breach of trust. Held,- First, That the above facts, independently of the admission of the co-trustees in their answer, did not render them personally liable in respect of the proceeds of the sale of the slaves, the title of the settlors not having been such as to enable the trustees legally to possess themselves of the fund. Secondly, That in the circumstances of the case that admission did not create any such liability. Sembh, that a clause restraining a married woman from anticipation does not exempt her from the ordinary consequences of lapse of time and acquiescence. Semble, that in the circumstances above stated, the administratrix committed a breach of trust by marrying without providing for the security of the trust property. Semble,' that having by her separate answer in the first suit stated that the first settlement was not intended to be binding upon her, she could not afterwards sue the trustees for non-performance of the trusts of it. Semble, that her having concealed from them the nature of her title when she assumed to settle the funds, would of itself have been a defence to such a suit. This wa an appeal from a decision of Vice-Chancellor Parker, reported 5 De Gex & Smale, 702. [81] The following statement of the facts of the case is transposed to this place from the commencement of the judgment of the Lord Justice Turner :- The bill was filed by Mary Derbishire, the wife of Henry Grant Derbishire, by her next friend, mainly for the purpose of charging some trustees and representatives of deceased trustees and the husband of the Plaintiff with the sum of 4869, 1 Is. 3d. 3 per cent, consolidated annuities, and the dividends thereon. There was a subordinate part of the case which had reference to the dividends upon a proof against the estate of Marsh & Co. for the sum of 3500, the cash with which the 4869,11s, 3d. consols was represented to have been purchased, and to the application of these latter dividends; but the main part of the case related to the above-mentioned stock. The equity of the bill as to this part of the case was summed up by the following pretence and charge. And the said Defendants, Francis Home, William P. de Bathe, Charles Hoare, Henry Merrick Hoare, Sir Orford Gordon, John Hogge, and Thomas Deane Shute, sometimes pretend that the said sum of 4869, 11s. 3d. 3 per cent. C. xxin.-2 34 DERBISHIRE V. HOME 3 DE 0. K. ft 0. 82. consolidated Bank annuities, and the other monies arising from the said negro and other glares as aforesaid, were in some manner lost to the said trust-estate by means of the fraud of the said Henry Fauntleroy, and without any neglect or default of the said Sir Hildebrand [82] Oakes, Jabez Mackenzie, Sir William P. de Bathe, and Francis Home; whereas the Plaintiff charges the contrary of such pretence to be the truth, but that, in any event, the estate of the said Sir Hildebrand Oakes, and the said Sir William P. De Bathe, and Francis Home, are liable for the acts and defaults of the said Henry Fauntleroy, they having authorized, or, at all events, knowingly permitted him to receive the said sum of 3500 on behalf of himself and the said Sir Hildebrand Oakes, Sir William P. de Bathe, and Francis Home. So that the case which in this respect the Plaintiff sought to establish, was the liability of the trustees (who, or whose estates, were sought to be charged), by reason of their having authorized or permitted Fauntleroy, their co-trustee, to receive the 3500, involving a charge of neglect on their part for not having themselves got in or seen to the investment of that sum. The circumstances of the case were the following. Sir John Stuart being entitled, among other property, to a gang of slaves belonging to a plantation in one of the Bahama Islands, by his will, dated the 5th of March 1801, gave to the Plaintiff, then Miss Mary Fenwick, the whole residue of his property, real and personal, wheresoever the same might be, and directed that the interests or annual proceeds thereof should be applied, as far as might be necessary, towards her education and maintenance until she attained the age of twenty-one years, at which period he directed that she might receive from his estate the principal sum of j600 sterling, together with the savings of interest during her minority, with all the plate, pictures, jewels, trinkets, or articles of household use, belonging to him, for her own absolute [83] use and disposal; after which appropriation the testator directed that his entire remaining principal property, real and personal, might be so settled upon his said niece, that in the event of her marriage, either then or at any future period, the said property might be secured to herself, with reversion at her decease, according to her own choice of distribution, to any such children as she might have, independently of any right or power of her husband therein, and that the entire annual proceeds or interest thereof might be paid to her, in half-yearly payments, for her own use and appropriation during her life, subject to a condition thus expressed : " On condition nevertheless that she resides in Europe, for which she shall enter into such proportional bond or engagement in favour of her next heirs under this my will as my executors, whom I appoint also trustees, are hereby directed to require." And the testator nominated Charles Shaw, James Simpson, and Frederick Booth, executors of his will. The testator died in March 1815. The executors and trustees renounced ; and on the 30th of May 1815 letters of administration, with the will annexed, were granted to the Plaintiff. In the month of January 1817 the Plaintiff married Henry Grant Derbishire, who was then an infant. There was no settlement upon the marriage, and on the 19th of November 1818 the Plaintiff and Mr. Derbishire, he being then still an infant, entered into an agreement for the sale of the slaves, which was as follows : " Articles of agreement made and entered into this 19th day of November in the year of our Lord 1818 between Henry Grant Derbishire, of Crawford Street, Portman Square, in the county of Middlesex, Esquire, and Mary his wife, [84] late Mary Fenwick (the niece, residuary legatee, and administratrix, with the will and codicil annexed, of General Sir John Stuart, late of Clifton, in the county of Gloucester, deceased), of the first part; Henry Wood, of Liverpool, in the county palatine of Lancaster, merchant, of the second part; and John Moss, of Liverpool aforesaid, banker, of the third part: Whereas the said Sir John Stuart was in his lifetime, and at the time of his death, possessed of and entitled to a gang or number of various negro slaves, consisting of the several persons mentioned and specified in the schedule hereunder written or hereto annexed, and late in, upon, about, or belonging to a certain plantation called Stuart's Manor, in the island of Exuma, Bahamas, in the West Indies, and elsewhere in the said island, And whereas the said John Stuart duly made and published his last will and testament in writing, bearing date the 5th day of...
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