Fry v Capper
| Jurisdiction | England & Wales |
| Judgment Date | 16 December 1853 |
| Date | 16 December 1853 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 70
HIGH COURT OF CHANCERY
S. C 2 W. R. 136. Observed on, In re Teague's Settlement, 1870, L. R. 10 Eq. 564; In re Cunynghame's Settlement, 1871, L. R. 11 Eq. 327; In re Ridley, 1879, 11 Ch. D. 650; Shute v. Hogge, 1888, 58 L. T. 546; Whitby v. Mitchell, 1889, 42 Ch. D. 502; 44 Ch. D. 85.
Power of Appointment among Children. Restraint upon Anticipation.
70 FRY V. CAPPER KAY, 163. [163] fry v. capper. Dec. 16, 1853. [S. C. 2 W. E. 136. Observed on, In re league's Settlement, 1870, L. E. 10 Eq. 564; In re Cunynghame's Settlement, 1871, L. E. 11 Eq. 327; In re Ridley, 1879, 11 Ch. D. 650; Shute v. Hogge, 1888, 58 L. T. 546; Whitby v. Mitchell, 1889, 42 Ch. D. 502; 44 Ch. D. 85.] Power of Appointment among Children. Restraint upon Anticipation. Under a power of appointment of a trust fund among children, in the usual form, the share of a married daughter, who was unborn at the creation of the power, was limited to trustees, upon trust for her separate use, for life, without power of anticipation, and, after her decease, to her general appointees by deed or will, and, in default, to her executors or administrators. Held, that such an appointment was not void 'as fettering the property beyond the legal limits, but that the restraint upon anticipation might be rejected, and the rest of the appointment sustained. By a settlement, dated the 14th of August 1792, and made one month after the marriage of John Fry and Honnor, his wife, John Fry covenanted to pay to the trustees thereof a sum of £2000, to be held by them upon the trusts (therein declared) of a sum of £1000, which was covenanted to be paid to them by the mother of his wife, and which were as follows :-" In trust to pay or permit the said John Fry (the husband), and his assigns, to have, receive and take the dividends, interest and annual produce of the said £1000, for and during the term of his natural life; and from and immediately after the decease of the said John Fry, in trust to pay or permit and suffer and sufficiently authorise and empower the said Honnor Fry his wife, and her assigns, to have, receive and take [164] the dividends, interest and annual produce of the said sum of £1000 to her and their own use, for and during the term of her natural life; and from and immediately after the decease of the survivor of them, the said John Fry and Honnor his wife, then in trust for all and every the child or children of the body of the said John Fry, on the body of the said Honnor his wife to be begotten, in such parts, shares and proportions, and in such sort, manner and form, and with, under and subject to such powers, provisoes, conditions, restrictions and limitations (such limitations over to be for the benefit of some or one of such child or children), as the said John Fry and Honnor his wife shall jointly, by any deed or deeds, writing or writings, to be by them sealed and delivered in the presence of two or more credible witnesses, or in default of such joint appointment as the survivor of them shall, by any deed or deeds, writing or writings, to be by him or her sealed and delivered in the presence of two or more credible witnesses, or by his or her last will and testament, to be by him or her signed, sealed and published in the presence of the like number of credible witnesses, direct, limit or appoint; and in default of some such direction, limitation or appointment, and as to such part or parts thereof whereof no such direction, limitation or appointment shall be made, then in trust to pay or transfer the said sum of £1000 unto and amongst all and every...
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