Dover v Alexander
| Jurisdiction | England & Wales |
| Judgment Date | 21 January 1843 |
| Date | 21 January 1843 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 114
HIGH COURT OF CHANCERY
S. C. 12 L. J. Ch. 175; 7 Jur. 124.
[275] dover v. alexander. Jan. 17, 18, 21, 1843. [S. C. 12 L. J. Ch. 175; 7 Jur. 124.] A married woman, having several legitimate children, and one illegitimate child, and being separated from her husband, and enceinte with a second illegitimate child, appointed a fund to her illegitimate child then born, reserving a power of revocation, as to a moiety, in favour of any after-born children she might have born of her body. After the birth of the second illegitimate child she revoked the appointment of the moiety, and appointed the entire fund equally between the two illegitimate children. Held, that the after-born children, for whose benefit the revocation might be made, must be taken, in the primary and legal sense, as applying to legitimate children only-that, therefore, the second illegitimate child was not an object of the reserved power, and could not take under the latter appointment. The objection to the validity of a limitation to unborn illegitimate children is not founded exclusively on the uncertainty of description ; nor, semble, is there any distinction between the validity of a limitation in favour of such persons, whether described as the children of a man, or the children of a woman. By indenture, dated the 24th of November 1804, made between Henry Whatton and Elizabeth, his wife, and their trustees, and other parties, a sum of 3083 was directed to be paid to trustees, upon trust to purchase the sum of 4200 three per cent, consols, to the intent that the dividends thereof might produce an annuity of 126, secured to Elizabeth Whatton for her separate use as therein mentioned, during the joint lives of herself and her said husband, and, after the decease of such one of them, Henry Whatton and Elizabeth, his wife, as should first die, to transfer the same stock and dividends thereof, and stand and be possessed thereof respectively, and of all and every part thereof, in trust for such person or persons, and for such ends, intents and purposes, and in such manner and form, parts, shares and proportions, as the said Elizabeth Whatton, as well when covert as sole, and notwithstanding her coverture by her then present or any future husband, and either absolutely and with or without revocation and new appointment, by any deed or deeds, instrument or instruments, in writing, to be executed in manner therein mentioned, or by her last will and testament, or any codicil or codicils thereto, to be executed in manner therein 2 HAKE, 276. DOVER V. ALEXANDER 115 mentioned, should direct or appoint; and, in default thereof, in trust for Elizabeth Whatton, for her sole and separate use. [276] By an indenture, dated the 28th of November 1804, made between Elizabeth Whatton of the one part, and Charles Watkinson, otherwise Charles Watkinson Arkinstall, of the other part, Elizabeth Whatton, in consideration of natural love and affection, and in order to make a provision for Charles Watkinson Arkinstall, in the event of her decease, by virtue of the powers vested in her by the indenture of the 24th of November preceding, limited and appointed the said sum of 3083, and the funds and securities in or upon which the same was or might be invested, saving her life interest therein, to hold the same unto Charles Watkinson Arkinstall, his executors, administrators and assigns, absolutely, subject to a power of revocation therein contained as to one moiety of the said reversionary monies, funds and securities, in favour of any after-born child or children the said Elizabeth Whatton might have born of her body, but not otherwise.(l) The 4200 stock was purchased in the names of the trustees, upon the trusts of the indenture of the 24th of November. At the date of the indenture of the 28th of November Elizabeth Whatton was living separate from her husband, and had four legitimate children, namely, Henry, John, William and George. Elizabeth Whatton had also one illegitimate child, the said Charles Watkinson Arkinstall, and she was at the same time enceinte of another illegitimate child, Margaret Brook-[277]-shaw, otherwise Mary Brookshaw Arkinstall, who afterwards intermarried with Dover, and was, with him, the Plaintiff in the cause. Henry Whatton died in the lifetime of Elizabeth, his wife. By indenture, dated the 2d April 1813, made between Elizabeth Whatton of the one part; and Charles Watkinson Arkinstall, and the Plaintiff, Margaret Brookshaw Arkinstall, of the other part; reciting the indenture of the 24th of November 1804, the purchase of the stock, that the children of Elizabeth Whatton living were the said Henry, John, William and George, and the said Charles, known by the name of Charles Watkinson Arkinstall, and the said Margaret, known as Margaret Brookshaw Arkinstall, that Margaret had been born since the appointment of the 24th of November 1804, that both Charles and Margaret were infants, and that Elizabeth Whatton being very anxious and desirous that they should be provided for in equal proportions, as far as the same was possible, in the event of her death, the said Elizabeth Whatton, in pursuance of her said powers, and in performance of her agreement to that effect thereinbefore recited, and in consideration of her natural love and affection for her said infant children, Charles and Margaret, and for their advancement in the world, revoked and made void so much of the indenture of the 28th of November 1804 as related to one moiety of the 4200 stock, and appointed and assigned all her (the said Elizabeth Whatton's) reversionary right and interest in the said 4200 stock (subject to her life-estate therein) unto the said Charles Watkinson Arkinstall and Margaret Brookshaw Arkinstall, their executors, administrators and assigns, equally between them, share and share alike, as tenants in common, and not as joint-tenants; and, in case either of them should die during his or her minority without leaving lawful issue, [278] thea the share of him or her so dying to go to the survivor of them, his or her executors, &c., absolutely. Charles Watkinson Arkinstall died in 1819 an infant, and unmarried. The Plaintiff, Margaret Brookshaw Arkinstall, intermarried with the Plaintiff, Dover, in 1826. Elizabeth Whatton, their mother, died in April 1839. The bill was filed in October 1839 by the said Margaret Brookshaw and her husband, and their trustees-their interest in the fund having been settled on marriage-praying a declaration that the Plaintiffs were entitled, under the indenture (1) This deed was recited in the following deed of April 1813 (which was proved on behalf of the Plaintiffs), and it was only stated in the bill as being so recited, without any other evidence of its existence : it was ultimately argued that Elizabeth Whatton should be taken as still having her general power of appointment, under the deed of the 24th of November 1804, at the time she executed the deed of April 1813. The Court held that it was not open to the Plaintiffs on the pleadings thus to put their case. 116 DOVER V. ALEXANDER 2 HARE, 279. of the 2d April 1813, to the 4200 stock, and the dividends since the death of Elizabeth Whatton. At the hearing, Mr. Temple and Mr. Lloyd, for the Plaintiffs, submitted, first, that under the original deed, giving Elizabeth Whatton the power of appointment, it was competent to her to appoint the fund to any person whomsoever, and that the power of revocation which she reserved on executing that power ought, as to the moiety to which it extended, to be construed as reserving all her previous powers, or, if the latter construction was excluded, and the power confined to a revocation in favour of after-born children, the meaning of the word "children" should be ascertained by reference to the deed containing the reservation in which the appointment was made in favour of one who was her illegitimate child. They contended, also, that the difficulty in supporting a limitation to a bastard arose, not from the policy of the [279] law, but from the uncertainty of description: (1) and that, wherever the description of the party exclusively, and of necessity, applied to the person intended to take, illegitimacy was no objection. Illegitimate children could not take in competition with legitimate, for the disposition was effectual without resorting to the former. In this case there was no competition in construction between legitimate and illegitimate children; and the description of the persons to take under the appointment-the after-born children of a woman-afforded a perfect certainty of description. The distinction in this respect between such children of a woman and of a man was noticed in many cases. In Blodwell v. Edwards (Cro. El. 509) it is said "the bastard of a, feme is certainly known to be her issue." In Ernie v. Wilson (17 Ves. 532) Sir W. Grant said, "If the bequest had been to the natural child, of which the particular woman was enceinte, without reference to any person as the father, there would be no uncertainty in that bequest, and probably it would be held good." Lord Eldon observed, in Wilkinson v. Adam (1 Ves. & B. 446), " I know no law against devising to the children of a woman, whether natural or not; as that creates no uncertainty. The difficulty arises upon a devise to the children of a particular man by a woman, to whom he is not married." And the same Judge, in Gordon v. Gordon (1 Mer. 151), repeats where "the gift is only to the child of a woman there can be no uncertainty-no fact to be tried; and then arises the question whether, by the policy of the law, such a child is absolutely precluded from taking under any description whatever." Lord Lyndhurst also distinguishes the cases of the father [280] and mother in Mortimer v. West (3 Kuss. 375); remarking that it was clear "that a bequest to unborn illegitimate children, describing them by reference to the father, would...
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