Forshaw v Welsby
| Jurisdiction | England & Wales |
| Judgment Date | 20 December 1860 |
| Date | 20 December 1860 |
| Court | High Court of Chancery |
English Reports Citation: 54 E.R. 882
ROLLS COURT
S. C. 30 L. J. Ch. 331; 4 L. T. 170; 7 Jur. (N. S.) 299; 9 W. R. 225. See Coutts v. Ackworth, 1869, L. R. 8 Eq. 567; Hall v. Hall, 1873, L. R. 8 Ch. 437.
882 FOESHAW V. WELSBY 30 BEAV. 213. [243] forshaw v. welsby. (Ex relafime.) Dec. 18, 19, 20, 1860. [S. C. 30 L. J. Ch. 331; 4 L. T. 170; 7 Jur. (N. S.) 299; 9 W. R. 225. See Coutts v. Ackioorth, 1869, L. R. 8 Eq. 567 ; Hall v. Hall, 1873, L. E. 8 Ch. 437.] A settlement on his family by a person in extremis, and not containing a power of revocation, set aside, the Court being of opinion that it was executed in expectation of his immediate death, but not with the intention that it should be operative in case of his recovery. As to the duty of a solicitor, to introduce a power of revocation into an instrument executed under such circumstances. The Plaintiff Philip Forshaw, a widower, had two children, Ann, who married Mr. Smith in April 1857, and Martha. In May 1857 the Plaintiff had a paralytic stroke, and he continued for a long time afterwards dangerously ill. He had long thought of making a settlement on his daughters, and in August 1859 he gave instructions to Mr. Hill, the managing clerk of Mr. Welsby, his solicitor, to prepare a settlement of £8000 on his daughters; and this was done by a deed of the 31st of August 1859. The Plaintiff1 was still in such danger that his death might have been hourly expected, and he executed a will on the 2d of September 1859. On the 13th of September 1859 the Plaintiff's daughter Martha married Mr. Martin. Besides the settlement of £8000, it appeared that on the 16th of September 1859 the Plaintiff executed another voluntary settlement. This purported to be made between the Plaintiff of the one part and W. Welsby and W. H. Smith of the other part, and the Plaintiff thereby conveyed to Messrs. Welsby and Smith the greater part of his property, including his brewery and other freehold, copyhold and leasehold estates, messuages and hereditaments, upon part of which the Plaintiff carried on his business, and he also assigned to them moneys and securities for money. The [244] trusts were to receive the rent, income and profits, and thereout to pay to the Plaintiff £800 a year for his life, and, subject thereto, as to one moiety of the real and personal property, upon trust to pay the income to Mrs. Martin for life, for her separate use, and after her death, leaving her then present or any future husband surviving, to such surviving husband for life, subject to a proviso for determining the same, and subject, as aforesaid, upon trust for the children of Mrs. Martin's present or future marriage. And as to the other moiety of the trust estate and premises, upon similar trusts for the benefit of Mrs. Smith for life, and afterwards for her present or any future husband for life, with remainder for the children of Mrs. Smith present or future. The deed also contained numerous other powers arid provisions affecting the property and its management, but it contained no power enabling the Plaintiff to revoke it. On the 22d of September 1859 the Plaintiff's medical attendants advised his removal to Southport, in the hope that the sea air might assist his recovery. He was removed accordingly, and, while there, on the 26th September 1859, W. Welsby visited him, and in the course of conversation informed him that, during his illness, on the 16th of September 1859, he had executed a deed, whereby he had conveyed and assigned all, or almost all, his property...
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