Douglas v Willes
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1849 |
| Date | 01 January 1849 |
| Court | High Court of Chancery |
English Reports Citation: 68 E.R. 130
HIGH COURT OF CHANCERY
[318] douglas v. willbs. Feb. 20, 21, May 22, 1849. By a settlement of trust funds for the benefit of a husband and wife for their lives, with remainder to the children of the marriage equally, it was provided that if the husband should, during his life, advance or pay any monies for or on account of the advancement or preferment in life of any child of the marriage, or in case any lands or tenements, monies, goods or chattels should descend or come by or from him unto or for the benefit of any such child, then such monies, goods and chattels, and the value of such lands or tenements should be accounted as part or in full of the portion provided by the settlement, unless the husband should by writing declare the contrary. Held, that the advances and payments referred to in the first part of the provision should be construed advances and payments made inter vivos, perfected in the lifetime of the husband; and that the lands, tenements, monies, goods or chattels, in the second part of the clause, should be confined to matters not perfected, or not having effect until after his death. That property which, during the coverture, accrued to the husband and wife in right of the wife, and by a settlement, to which the husband and wife were parties, was settled upon them for their lives, with remainder to their children, as they or the survivor of them should appoint (but which was not otherwise received or reduced into possession by the husband), was not property to be accounted for, as part of their portion, by the children to whom the husband and wife, or the survivor of them, afterwards appointed it. That the value of a leasehold house, assigned by the husband in his lifetime to one of (1) See Griffith v. Ricketts, 3 Hare, 476, where the substance of the bill is stated. 7 'HAKE, 319.' flOUGLAS- V. WI-LILES the children of the marriage, for his more comfortable'maintenance and support-' did not affecti the share of such child of the trust fund. That an advance by the husband in his lifetime to one of the daughters of a' sum' of1 money, for the purpose of apprenticing her son-the share of such daughter of the : trust fund having been settled upon herself and her husband, with remainder to her children-did not affect the share of-such daughter of the trust fund. Payments or advances to children out of an estate, other than that from which they derive portions, are not to be taken as made in or towards'satisfaction of such portions. - The suit was brought to execute the trusts of an indenture of .settlement, dated' the 20th of April 1790, made subsequent to the marriage of' Charles Johnson and Mary, his wife, in pursuance of an agreement entered into before the marriage, whereby a sum of ,10,000 vested in trustees, parties to the deed, was settled upon trust for Charles Johnson for life, remainder upon trust to pay Mary Johnsbn an1 annuity of 200 for her life, and subject to such trusts, for all and every the children and child' of the marriage, equally, to be assigned and transferred to them; as to sons, at their ages of twenty-one years, and as to daughters, at that age or marriage. The deed contained a clause of survivorship between the children in case of the death of a daughter under twenty-one or marriage, or of a son under twenty-one. And the deed contained the^following proviso: " Provided also, that if the said Charles Johnson shall, at any time or times during his life, advance or pay any sum or sums of money for or on account of the advancement or preferment in life of any or either of the child or children of the said mar-[319]-riage, or in case any lands or tenements, monies, goods or chattels shall descend or come by or from him, the said Charles Johnson, unto or for the benefit of any or either of the said child of children, then and in such case, such sum or sums of money, goods and chattels, and the value of such lands or tenements shall be accounted as part, if less in value than the portion or portions last hereinbefore provided or intended for the same child or children; but if as much or more in value, then in full of the same portion, unless he, the said Charles Johnson, shall, by writing under his hand, or by his last will and testament in writing as aforesaid, declare the contrary." Of the trust fund 8000 was paid or provided by John Johnson, the father of Charles, and 2000 by William Willes, the father of Mary; and it was provided that if there were no'children of 'the marriage, or all the'daughters should die before twenty-one or marriage, and sons before twenty-one, the trustees should stand' possessed of the 8000 as Charles Johnson1 should appoint; and if no appointment by Charles, then for John Johnson, his executors, &e., and of the 2000 as Mary should appoint; and if no appointment, for William Willes. Nine children of the marriage attained twenty-one years of age, and became objects of the power. Three of them, Charlotte, Lucy and Felicia,1 were not advanced or preferred in any manner by Charles Johnson in his lifetime. The other six children, Maryj John, Francis, Edward, Harriet and William, derived property from or through...
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