Fearon v Desbrisay
| Jurisdiction | England & Wales |
| Judgment Date | 05 December 1851 |
| Date | 05 December 1851 |
| Court | High Court of Chancery |
English Reports Citation: 51 E.R. 428
ROLLS COURT
S. C. 21 L. J. Ch. 505.
[635] fearon v. desbrisay.(!) Dec. 5, 1851. [S. C. 21 L. J. Ch. 505.] Funds were settled on A. for life, with remainder to his children, at such ages, &c., as he should appoint, and in default to them equally, to vest at twenty-one, and there was a power of maintenance until the vesting. There was a gift over, in case there should be no child absolutely entitled. A., having a child eight months-old, and another en venire, na mere, appointed the fund to all his children to vest immediately. One of the children survived A. and died an infant, and his share was claimed by his mother as his administrator. Held, that the appointment was. not a fraud on the power, and that she was entitled. In 1840, by the settlement made on the marriage of Captain Browne with Isabel his wife, certain large sums of stock, provided by his mother, were vested in trustees, on trusts, which, so far as material, were as follows :-In trust for Captain Browne for (1) dates. 1840. Settlement. 1842, May. Compton B. born. - Sept. First appointment. 1843. Jan. Second appointment. 1843. Feb. Captain B. died. - June. Isabel born. 1849. Compton died. MBEAV. 639. FEARON V. RESBRISAY 429 life, and afterwards to pay 300 a year to his wife for life, and subject thereto, upon trust for his children (by any marriage), at such ages and in such manner and in such shares as Captain Browne should appoint; and, for want of such appointment, upon trust for such children equally, but not to vest until twenty-one, or marriage with consent. [636] There was a clause of survivorship in case of the death of any child before he acquired a vested interest, and a power was given to the trustees for the maintenance and education of the children out of the dividends, until the children's portion should become vested. And if there should be no child who should become absolutely entitled, under any of the said trusts or powers, then upon certain trusts for the five Defendants (sisters of Captain Browne). On the 8th of September 1842 Captain Browne, having one child only (Compton S. Browne, born in May 1842), by deed, appointed the trust funds to him absolutely, to be a vested interest immediately. Captain Browne reserved to himself a power of revocation. Mrs. Browne being enceinte of the Defendant, Isabel Henrietta Browne, Captain Browne, on the 17th of January 1843, revoked the previous appointment, and appointed the funds to his son Compton and all his other children by his then wife, who should be living at his death or be born in due time after, as tenants in common, and he again reserved to himself a power of revocation. Captain Browne, who was at the time in an extremely precarious state of health, died in February 1843, and his daughter Isabel Henrietta was born in June following. His son Compton died in 1849 an infant, and his mother, who had married the Plaintiff Mr. Fearon, obtained letters of administration to him. By this bill Mr. and Mrs. Fearon sought to recover the share of Compton Browne in the trust funds. The [637] Defendants, the sisters, insisted that in case the daughter Isabel died under twenty-one without marriage with consent, they would become entitled to the...
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