Harvey v Stracey

JurisdictionEngland & Wales
Judgment Date24 July 1852
Date24 July 1852
CourtHigh Court of Chancery

English Reports Citation: 61 E.R. 379



S. C. 22 L. J. Ch. 23. See Churchill v. Churchill v. 1867, L. R. 5 Eq. 48; In re Farncombe's Trusts, 1878, 9 Ch. D. 657; In re Beale's Settlement [1905], 1 Ch. 259.

Power, Exercise of. Appointment, Excessive; Effect of Invalid Limitation engrafted on prior Valid One. Will, Construction of; when Execution of a Power. Remoteness.

[73] haevey v. steacey. June 8, 9, July 8, 22, 24, 1852. [S. C. 22 L. J. Ch. 23. See Churchill v. CtercMZ, 1867, L. E. 5 Eq. 48; In re Farm . combe's Trusts, 1878, 9 Ch. D. 657-;, In re Beak's Settlement. [1905], 1 Ch. 259.] ' Power,, Exercise of. .Appointment, Excessive ; Effect of Invalid Limitation engrafted on prim'Valid'One. Will, Construction of; when Execution of a Power. Remoteness. A marriage settlement comprised a sum of 20,000 South Sea annuities; 7000 3 per cent. Reduced, and 3150 New 4 per cents.; also certain shares in a company; and 54,000 French rentes. These were settled on trust to raise an annuity of 500 for the life of the wife for her separate use, subject thereto for the husband and wife for their joint lives; if the wife should predecease her husband, then on trust to raise 3000, over which a general power of appointment was given to the wife; and as to the rest, after the death, of the wife so predeceasing her husband, for him for life, and after his death, in trust for all and every or such me or more exclusively of the other or others of the relations in blood to the said Sarah Harvey (the wife) at the time of her decease within the eighth degree of consanguinity to her, at such age, day or time, or respective ages, days or times, and if more than one, in such shares and proportions, and with such annual sums of money and future or executory or other trusts (such annual sums of money and future or executory or other trusts being for the benefit of the said relations in blood of the said Sarah. Harvey within the degree aforesaid, or some or one of them), and in such manner as the said Sarah Harvey should, notwithstanding her coverture, by her last will and testament in writing^&r any codicil or codicils in writing, or any writing or writings in the-nature of or fju,rpffrtin,g to be a will or codicil, to be signed and published by. her in the presence of and to be attested by two or more credible witnesses, direct or appoint; and in default of such direction or appointment, and so far as any such direction or appointment should not extend, in trust for such person or persons as, under the Statute for the Distribution of the Effects of Intestates, would, at the decease of the said Sarah Harvey, have become entitled thereto as her next of.Jcin in case the said Archibald Morrison (the husband) had died: in her lifetime, and she had died possessed thereof his widow, and intestate. The settlement also comprised certain plate, linen, china, &c., over which a general power of appointment was given to the wife, to take effect after the death of the husband. It comprised also certain shares in a public library, and tickets of admission to a theatre, and jewellery, &c.; and as to these, the settlement gave to the wife a general power of gift and appointment, either during her life or after- her death, as well as over what she should save out of her separate income. The wife died many years before her husband. By her will she said:-"I do, by virtue of the power and authority reserved to me in and by the deed of settlement made, &c., hereby make, publish and declare this my last will and testament in. manner and form following, that is to say." She then referred particularly to the power to dispose of 3000, and made a disposition of a great part of it. She gave - to her husband for life all the benefit of her shares in the public library, of her 380; HABVEYV.STRACEY 1DREWBY.W. admission to the theatre, and of her; books. .After his 4sath ;she disposed,of these- things to various persons; !she disposed also of her jew.els, china and other things; and her will concluded as- follows?;-''^^ after .payment of My just debts, funeral expenses, the charges of proving this my mil, and f f carrying, the trusts thereof into execu- tion, I direct and appoint, give and beque&thi after the decease of my said husband, all the rest, residue and remainder of my monies, ands, other, my pers,&gMl. estate, of whatever description the same may be, unto and amongst att and every the daughters of my scad brother, John Harvey, the said Charles Day, and Louisa Day, the children of my deceased niece, and the two daughters of my said brother, Charles Savile Onley, or to such of them as shall be living at my said husband's death, and to the issue, of such of them as .shall then happen to be dead, to be equally divided amongst them, share and share alike. But U is my will that the Said Charles Day and Louisa Day, and the cMMren of any other of my 'nieces who may be dead, shall only be entitled to the share in.the said residue which his or her mother would have had if living at the death of my said husband. And further, it is my will that the shares of each of my said nieces of the residue of my personal estate shall be placed and continue out at interest by my surviving executor, Ms executors or adminis trators, on Government or real security during the respective lives of my said nieces; and the dividends or interest on each share, as the same shall from time to time become due, shall be paid to each of my nieces during her life,, on her own ' receipt, for her own sole and separate use, and not to be subject to the debts or control of her present or any future husband. And as to the share of my niece, Caroline Onky, I will and desire that the same shall, after her decease, be paid to all my other nieces who shall be living at the decease of the said Caroline Onley, and to the issue of such of them as shall then happen to be dead equally, share and share alike ; but the issue of any deceased mieceis only to be entitled to the share which his or their mother would have had if living at the decease- of the said Caroline Onley ; and after the death of each of my other'nieces^ I direct that the dividends and interest of her share shall, if she die married, be paid to, her husband during his life for his own use. And I further mil and direct that after the several deceases of my said last-mentioned nieces, or their respective husbands, that the share of each of the said last- mentioned nieces shall be paid to her child, children or grandchildren, or any other relation in blood to my said niece, in such parts and proportions, manner and form as she may.by her last will and testament, duly executed, and which she shall have power to make, not withstanding her coverture,, give and bequeath the same, and in default thereof, then unto the next of Tan in blood of my said niece according to the Statute of Distribution of Intes tates' Personal Estates." : Held, first, that the will was an execution of all the powers; that is, of the power to appoint each portion of property comprised in the settlement. . Secondly, that the appointment in favour of the daughters of John Harvey was not void ah initio, because it might comprise persons not living at the death of the testatrix, and within the eighth degree; nor did it become void in toto, because it did in fact, at the time of distribution, include such persons; but that it was good pro tanto. ''.-'..' Thirdly, that the attempted limitation to the husbands of the nieces was bad, as they were strangers; and the limitations to their children; grandchildren or other relations in blood was void for remoteness. Fourthly, that the attempt to cut down the estate given to the nieces in the first instance failing^ the attempted remainders over did Hot .go, as uuappointed, to the next of kin, but failed wholly, and left absolute interests subsisting in the nieces. The bill was filed in this case by Sir Robert,John Harvey, the surviving executor of the will of Mrs. Morrison, against John Stacey and others, some of whom were [7 4] persons claiming under an appointment made by the will of Mrs. Morrison, and ot hers the persons claiming in default of the validity of the appointment. [75] The annexed pedigree shews the state of the family of the testatrix. On the marriage of Mrs. Morrison with Archibald Morrison a settlement, dated the 5th of May 1823, was made between the said Archibald Morrison, of the first part, and Sarah Morrison, his wife, by her then name and description of Sarah Harvey, spinster, of the second part, and the Plaintiff and John Stracey, Esq., a Defendant in the suit, of the third part. After reciting (amongst other things) that the said Sarah jamF*' [75] between SIE EOBEEf JOHN HAEVEY, knt., Plaintiff, AND JOHN STEACEY AND OTHEES, Defendants. Robert, b. 8 Feb. 1753; " mar. 30 Aug. 1781; bur. 20 Jan. 1820, without leaving issue. Anne Ive " Dead. Fanny, The Bev. Mary Anne, or Ma- b. 26 Feb. 1784 ; Edmund Bellman, rianne, b. 10 May, - mar. 26 Nov. 1811. d. 26 Dec. 1843. 1786 ; married at The Rev. Julia, Emma, R -Charles Day. b. 30 Aug. 1788; b. 15 Aug. 1790,; Living. d. uiimar. June, mar. 26 Nov. 1811. Ade chtod Day, Caroline, Louisa, Caroline Mary, Onley Harvey, he Harriot, Thomas Bl Squire. b. 2 June, 1792 ; b. 26 April 1795; b. 11 June, 1799 ; afterwards assum- b. 16 Aug. 1803; A defendai fendanttothe bur. 18 Dec. 1792. d. unmar. 15 Oct. mar. 16 April, 1818 ; ed the names of mar. 9 auk. 1827. suit Adefendanttothe Gretna, 15 May, 1808. Adefendanttothe $uit. j 1810. bur. 6 Nov. 1845. Savill Onley. A Adefendanttothe suit. 1806, and after- suit. defendant to the suit. wards at St. Giles, suit. Norwich, 10 June, 1806; d. 18 Mar. - 1812. | Charles, Louisa, The Rev. Henry Carotin b. 6 Nov. 1811. b. 5 Jan. 1810; William Blake Har A defendant to the mar. 23 Nov. 1831 ; Living. , b. 21 Ma suit. bur. 17 Mar. 1843. mar. 19 S e Savill The Rev. Henry Louisa Harvey The Eev. Thomas Charles...

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