Fyfe v Arbuthnot
| Jurisdiction | England & Wales |
| Judgment Date | 04 July 1857 |
| Date | 04 July 1857 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 780
BEFORE THE LORD CHANCELLOR.
S. C. 3 Sm. & G. 547; 26 L. J. Ch. 646; 3 Jur. (N. S.), 651; 5 W. R. 793. See In re Clarke, 1887, 35 Ch. D. 113.
[406] fyfe v. arbuthnot. Before the Lord Chancellor. July 4, 1857. [S. C. 3 Sm. & G. 547; 26 L. J. Ch. 646; 3 Jur. (N. S.), 651 ; 5 W. R. 793. See In re Clarke, 1887, 35 Ch. D. 113.] A party to a deed of family arrangement thereby covenanted that if he should at any time become entitled to property exceeding the value of (which was left in blank), he would settle it upon certain specified trusts. Before any such property accrued, or the persons- entitled under the trusts were ascertained, he filed a bill to have it declared that the covenant was void for uncertainty. Held, that the bill was properly dismissed as filed prematurely. Semble, that there was. no such uncertainty as to render the covenant void. This was an appeal from the decision of Vice-Chancellor Stuart, dismissing the Plaintiffs bill. The bill sought a declaration that a covenant contained in a deed of settlement and family arrangement, executed by the Plaintiff, was void and incapable of being carried into effect, and prayed that the covenant might be struck out and erased from the deed accordingly, with consequent declarations as to the rights of the parties; or that if the Court should be of opinion that the covenant was not absolutely void, then that the settlement might be altered and rectified in such manner as the Court should think fit, so as to render the covenant intelligible and capable of taking effect, and that all necessary directions might be given for the purposes aforesaid. The settlement was dated the 7th of February 1850, and was made between Jane Currie Fyfe of the first part, the Plaintiff Douglas Monro Fyfe of the second part, Jane Catherine Fyfe of the third part, and John Alves Arbuthnot, James Gardiner and William Gascoigne Roy of the fourth part. By it Jane Currie Fyfe and the Plaintiff released and assigned to Jane Catherine Fyfe, her executors, administrators and assigns, all the right and interest of Jane Currie Fyfe and the Plaintiff, and each of them, to and in certain property therein mentioned, and comprising a sum of 91,028 sicca rupees [407] upon trusts for Jane Currie Fyfe during her widowhood, and after her death or second marriage upon trust for the Plaintiff for life, with divers subsequent trusts, under which unborn persons might become interested. The clause on which the question arose was as follows:- " And in consideration of the said release by the said Jane Currie Fyfe of her life interest in the said sums of stock as hereinbefore mentioned, he the said Douglas Monro Fyfe, for himself, his heirs, executors and administrators, hereby covenants with the said John Alves Arbuthnot and James Gardiner, their executors, administrators and assigns, and with the trustees and trustee for the time being of these presents, that if he the said Douglas Monro Fyfe shall at any time obtain or become entitled to any property exceeding in value the sum of (NoTE.-This was left blank in the deed) he will immediately after he shall obtain possession of the same or become entitled thereto, whichever shall first happen, assign the same to the trustees or trustee for the time being of these presents, upon the trusts hereby declared concerning the said sum of 91,028 sicca rupees after the decease or marriage of the said Jane Currie Fyfe." Jane Currie Fyfe was still living, and it did not appear that the Plaintiff had 1DEG. &J. 108. WYLLIE V. GREEN 781 since the execution of the deed, become entitled to any property to which the covenant could apply. The bill contained an allegation, which was not, however, established in evidence, that this covenant was inserted in the deed by mistake and...
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