Foster v Cautley
| Jurisdiction | England & Wales |
| Judgment Date | 26 November 1855 |
| Date | 26 November 1855 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 1150
BEFORE THE LORD CHANCELLOR LORD CRANWORTH.
[55] foster v. cautley. Before the Lord Chancellor Lord Cranworth. Nov. 23, 24, 26, 1855. Under a marriage settlement, the husband and wife had a power of appointing a fund among their children, and in default of appointment, or so far as it did not extend the fund was to go to the children equally. There were three children of the marriage. An appointment of one-third of the fund was made in favour of one of the children, yet so as not to affect the same power further than to the extent specified, and also, in case of no complete exercise or execution of the same power or authority as to the share of the fund not affected by the appointment, so as not to prejudice or affect the right or contingent interests of the appointee under the proviso for accruer, in case of the death of any or either of the other children, in such manner as specified in the settlement, and notwithstanding that in case of no complete appointment the then " appointment was intended to be made in lieu DBQ. M. 40. 8S. FOSTER V. CAUTLEY 1151 of all claims and demands " of the appointee to or for any original or principal share of the fund. Held, that the appointors must be taken by necessary implication to have appointed the other two-thirds to their two other children and that the appointee was not entitled to share in such two-thirds. By an indenture of settlement made on the marriage of Eoger Baskett, since deceased, with Sarah Foster, his late wife, also since deceased, dated the 10th July 1804, it was declared that the trustees therein named, and the survivors and survivor of them, his executors and administrators, should stand possessed of and interested in the sum of 9009, 3s. 8d. 3 per cent. Reduced annuities, then standing in their names, in trust, after the said intended marriage, to pay the income thereof to the said Roger Batkett for life, and after his death to the said Sarah Foster for her life, and after the death of the survivor of them, upon trust, for all and every or any such one or more of the children of the said intended marriage, or of all or any of the issue of any such children, or part for all or any of such children, and the residue for all or any of such issue, to be payable or transferable at such time or times, and if more than one, in such parts, shares and proportions, manner and form, as they the said Roger Baskett and Sarah his wife, at any time or times, and as often as they should think fit during their joint lives, by any deed or writing, deeds or writings, revocable or irrevocable, to be by them sealed and delivered in the [56] presence of and attested by two or more witnesses, should limit, declare or appoint, and for want of such limitation, declaration or appointment, or in case any such should be made, when and as the estates and interests to be thereby limited, declared or appointed should respectively end and determine; and as to so much and such part or parts of the said 9009, 3s. 8d. 3 per cent, annuities, if any, whereof there should not be any such limitation, declaration or appointment, in trust for the only child, or for all and singular the children of the said Roger Baskett, on the body of the said Sarah Foster to be begotten, to be divided equally between or amongst them, if more than one, share and share alike, for his, her or their portion or portions; and that the portion or portions of such of them as should be a daughter or daughters should be paid or transferred at her or their age or ages of twenty-one years, or day or days of marriage, which should first happen, and the portion or portions of such of them as should be a son or sons should be paid or transferred at his or their age or ages of twenty-one years, unless such respective ages or times of payment should happen during the joint lives of the said Roger Baskett and Sarah his wife, or the life of the survivor, in which case such portion or portions should be a vested interest or vested interests in such son or sons, daughter or daughters respectively, and transmissible to his, her or their representatives, at and from such age or ages, times or respective times, as aforesaid, but the payment or transfer thereof should be postponed until the decease of such survivor; with limitations over, in case any daughter should die under the age of twenty-one years without having been married, or any son under that age, to the other children of the marriage, but which events did not happen ; with further provision in case there should be no child of the said then intended marriage, [67] and for the appointment of new trustees of the settlement. The settlement did not contain any hotchpot clause. The marriage between Roger Baskett and Sarah Foster was duly solemnised, and there was issue of such marriage three daughters and no more, namely, Sarah, afterwards the wife of the Defendant Joshua Cautley, and since deceased; the Defendant Etheldred Rickley, and Elizabeth, afterwards the wife of William Thomas Clarke, who, together with William Thomas Clarke, was also dead. By a deed-poll under the hands and seals of Roger Baskett and Sarah, his wife, bearing date the 6th June 1837, after reciting the settlement of the 10th July 1804, and that Roger Baskett and Sarah his wife had issue three daughters, namely, Sarah, Etheldred, and Elizabeth, who were all then living, it was declared that in consideration of the natural love and affection which the said Roger Baskett and Sarah his wife had toward their daughter the said Sarah Baskett, and in pursuance and part execution of the power for that purpose given to them in and by the indenture of aettlement, they the said Roger Baskett and Sarah his wife did yet so nevertheless as not to prejudice or affect the same power or authority of appointment, further 1152 FOSTER V. CAUTLEY 6Dl G. M. & G. flg. than to the extent thereinafter specified, and also in case of no complete exercise or execution of the same power or authority as to the share or shares of the trust moneys and premises not affected by the deed-poll, so as not to prejudice or affect the right or contingent interest of their daughter Sarah Baskett under the proviso for accruer and survivorship of the share in the trust-moneys and premises in case of the [58] death of any or either of their other children, in such manner as was specified and contained in the indenture of settlement and notwithstanding that in case of no complete appointment, the then present appointment was intended to be made in lieu of all claims and demands of their daughter Sarah Baskett, to or for her original or principal share or interest in the same trust-moneys and premises jointly and each of them did irrevocably limit, declare and appoint that the said John Foster1 and James Torkington or the survivor of them, his executors or administrators, or other such new trustees or trustee as should be appointed under or by virtue of the befoie-recited indenture of settlement should upon and immediately after the decease of the survivor of them the said Roger Baskett and Sarah his wife, pay assign and transfer one equal and full third part or share of and in the said sum of 9009, 3s. 8d. 3 per cent. Reduced annuities, so comprised in the thereinbefore recited indenture of settlement, unto their said daughter Sarah Baskett, her executors, administrators and assigns, as and for her original share and interest in the same...
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