Hughes v Wells
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1851 |
| Date | 01 January 1851 |
| Court | High Court of Chancery |
English Reports Citation: 68 E.R. 717
HIGH COURT OF CHANCERY
S. C. 16 Jur. 927. See London Chartered Bank of Australia v. Lemprier, 1873, L. R. 4 P. C. 592; 9 Moo. P. C. (N. S.) 454; 17 E. R. 584; In re Harvey's Estate, 1879, 13 Ch. D. 221; Ex parte Gilchrist, 1886, 17 Q. B. D. 534.
[749] hughes v. wells. Nov. 20, 22, 24, Dec. 11, 1851; April 29, 1852. [S. C. 16 Jur. 927. See London Chartered Bank of Australia v. Lempriere, 1873, L. E. 4 P. C. 592; 9 Moo. P. C. (N. S.) 454; 17 E. E. 584; In re Harvey's Estate, 1879, 13 Ch. D. 221; Exparte Gilchrist, 1886, 17 Q. B. D. 534,] By a marriage settlement, monies in the funds, monies lent on mortgage and other property, were assigned to trustees upon trust to pay and transfer the same unto such persons, for such estates or interests, either absolutely or conditionally, and in such parts, shares and proportions, manner and form, and under and subject to such powers, provisoes, &c., either for the benefit of the issue of the intended marriage, or of any other persons whomsoever, as the wife, notwithstanding her 718 '-HUGHES V. WELLS 9 HAKE, 749. coverture, at any time or times,-and from time to time during the joint lives of herself and her husband, should, by and with the consent and approbation of her husband, testified in writing under his hand and seal, or as the wife alone, after the decease of the husband, in ease she should survive him, should by any deed or writing, to be sealed and delivered by her in the presence of and attested by two or more witnesses, direct or appoint; and in default of soch direction or appointment, and in the meantime and until such direction or appointment should be made and executed, and subject thereto, and as to so much of the said trust monies, &c., whereof no such direction or appointment should be made, upon trust, to receive the annual proceeds due; and to grow due, for or in respect of the same, and pay the same to such persons as the wife, during her life, notwithstanding her coverture, and whether sole or covert, should from time to time, by any writing or writings under her hand, direct or appoint to receive the same, and in default of such direction or appointment into the proper hands of the wife for her separate use. The monies in the funds were transferred to the husband by virtue of powers of attorney, under the hand and seal of the wife, with the consent of the husband under his hand and seal, and attested by two witnesses; and the mortgage money was received and a receipt given by the husband and wife, and the premises reconveyed, and the1 receipt and reconveyance also so attested. Held, that the powers of attorney were not directions, but were merely authorities to the bankers by the wife to assign the stock to her husband, and only enabled the bankers to do for her what she might have done for herself, without their intervention. That, as the directions must follow on the authorities before the authorities could be acted on, it still remained to make the appointment after the ; execution of the powers of attorney, and that the transfers made subsequently to such execution, being unaccompanied by any of the formalities required by the settlement, could not have the effect of converting instruments of substitution into instruments of alienation, and could not operate as executions of the power of appointment. That the wife had no power to dispose of the trust funds otherwise than by a perfect appointment. That in order to constitute a purchaser in whose favour a defective execution of a power will be aided in equity, there must be a consideration and an intention to purchase, either proved or to be presumed; and the maintenance of his household and establishment by the husband does not furnish such consideration to the wife. That if the transfer of a wife's legacy to herself by the husband be a consideration, it does not shew any intention to purchase. That if a wife thinks proper to keep up an establishment against the wishes of the husband, what is supplied for the establishment will be a consideration for payments out of her estate on that account. That the proceeds of the settled funds having been placed to the wife's account at her bankers, and applied principally to the current expenses of the establishment of her husband and herself, by the order and direction of the wife, the husband being the agent in their application-as to monies so applied, there was a defective appointment which ought to be aided by the Court. If the husband have not in any degree influenced the acts or conduct of the wife, there is no reason why (the wife having been constituted a feme sole by the settlement) her assets, including the trust funds which have become her assets by the exercise of her power, should not be bound to the same extent as the assets of any other person, not under the disability of coverture, would be bound in the same circumstances. The rights of married women may be barred, and their estates affected, by active participation in breaches of trust, and if-their powers having been exercised by will-the trust funds become their assets, they must be liable for those breaches of trust-semble. But the fact of a married woman having permitted her husband to receive the trust funds does not preclude a right to relief by her or her appointee, for that would be to defeat the purpose for which the trust was created-the protection of the wife against the husband. Under the Escheat Act, trust monies may be followed into land against the lords of 9 HAKE, 758. HUGHES V. WE'L'tS 719 the fee; and if it were otherwise the estate in the hands of the lord by escheat is liable to the debts of the person whose estate has escheated. The non-interference of the trustees for a long period does not preclude them or their representative from sustaining a suit for carrying the trust into effect, so long as the trust subsists. But, semUe, on the contrary, it is the duty of the trustees or their representative to take steps for enforcing the trust. A bill, by the personal representative of the surviving trustee of the settlement made upon the marriage of Sir [750] John and Lady Wells, for the purpose of recovering some of the trust funds comprised in the settlement, which came to the hands of Sir John Wells, and which were in part laid out in the purchase of an estate called the " Bolnore " estate, and of a lease of that estate, and in building and improvements upon it. The Bolnore estate, when purchased, was conveyed to Sir John Wells in fee; and in consequence of his death (which took place in November 1841), without heirs, and intestate as to the Bolnore estate, the estate escheated t6 the lords of the fee, and the bill as against them sought to establish a lien on the estate for the sums expended in the purchases and improvements, and to have the residue of the trust monies received by Sir John Wells paid out of the estate as part of his assets. The facts of the case were found by a report made under an order directing preliminary inquiries, and were these: By an indenture of settlement of the 19th of [751] April 1815, Lady Wells (then Jane Dealtry) granted and transferred unto King and Hughes, their executors, &c., all and singular the sum and sums of money, stocks, funds and securities whatsoever, of or belonging to her, and also all and singular her furniture, china, plate, books, pictures and trinkets, and other personal estate and effects, to hold the same unto the said trustees, upon trust, after the marriage then intended between herself and Sir John Wells should be had, that the trustees should pay, assign and transfer the said trust funds, monies and securities, and other the premises, unto such person or persons, for such estate or estates, interest or interests, either absolutely or conditionally, and in such parts, shares and proportions, manner and form, upon such trusts, and under and subject to such powers, provisoes^ limitations and declarations, either for the benefit of all or any of the issue of the then intended marriage, or of any other person or persons whomsoever, as the said Jane Dealtry, notwithstanding her coverture, at any time or times, and from time to time during the joint lives of herself and the said Sir John Wells, should, by and with his consent and approbation, testified in writing under his hand and seal, or as the said Jane Dealtry alone, after the decease of Sir John Wells, in ease she should survive him, should, by any deed or deeds, writing or writings, to be sealed and delivered by her in the presence of and attested by two or more credible witnesses, direct, limit or appoint; and in default of such direction, limitation or appointment, and in the meantime until such direction, limitation or appointment should be made and executed, and subject thereto, and as to so much of the~trust monies, funds, securities and premises, whereof no such direction, limitation or appointment should be made, upon trust, that the trustees should, during the life of the said Jane Dealtry, receive and take the dividends, interest and annual proceeds, due and to grow due for or in [752] respect of the said trust monies, funds and securities, and pay the same to such person or persons as the said Jane Dealtry, during her life, notwithstanding her intended or any future coverture, and whether sole or covert, should, from time to time, by any writing or writings under her hand, direct or appoint to receive the same; and in default of such direction or appointment, into the proper hands of the said Jane Dealtry for her own sole and separate use and benefit, independently of the debts, control or engagements of her husband ; and also should permit and suffer the said Jane Dealtry, during her life, notwithstanding any such coverture, to use and enjoy the furniture, china, plate, books, pictures and trinkets, and other articles, for her separate use; and from and after her decease to pay and transfer the...
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London Chartered Bank of Australia v William George Lempriere and Others
...the [454] married woman seems to have been held to let in a bond-creditor against the appointees under the Will; and in Hughes v. Wells (9 Hare, 749), I seem to have intimated that this might be the effect of the exercise of the power, as in other cases of the exercise of the general power ......
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