Jebb v Tugwell
| Jurisdiction | England & Wales |
| Judgment Date | 06 December 1855 |
| Date | 06 December 1855 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 258
BEFORE THE LORDS JUSTICES.
S. C. 20 Beav. 84; 1 Jur. (N. S.), 460; 24 L. J. Ch. 433, 670; 2 Jur. (N. S.), 54; 25 L. J. Ch. 109.
[663] jebb v. tugwell. Before the Lords Justices. Dec. 5, 6, 1855. [S. C. 20 Beav. 84 ; 1 Jur. (N. S.), 460; 24 L. J. Ch. 433, 670; 2 Jur. (N. S.), 54; 25 L. J. Ch. 109.] A, testator gave his property to his wife for life, and after her death to his two daughters, in such proportions as the wife should appoint, but if she made no appointment, then to be equally divided between them, and in case only one survived her mother the whole to the survivor, unless the deceased daughter should leave any children, in which case they should inherit the portion intended for their mother; and he expressed his will to be, that the fortune of each of his daughters should go to her children after her decease, in such proportions as she might direct, but if no appointment, to be equally divided between them. The daughters were both married, and the widow appointed that, after her decease, one moiety should go to such uses as one of the daughters, and as to the other moiety, to such uses as the other daughter should appoint, and in default of appointment, to them absolutely. By a settlement dated the following day, each daughter appointed her moiety to her separate use for life, with remainder to her husband, for life, with remainder to her children, with cross-limitations. Held, that the appointment and settlements were effectual, subject to the question whether the limitations of life interests to the husbands were valid. This was an appeal from a decision of the Master of the Eolls, reported in the 20th Volume of Mr. Beavan's Reports (page 84). John Yerbury by his will gave as follows : " I give and bequeath to my dear wife for her sole use and benefit during her life, all my property, both real and personal, on condition that she pays out of it any bequest that I may make by this my will, or by any subsequent deed or codicil. I hereby authorize my wife, with the consent of my executors, to sell or exchange any part of my property. I give and bequeath all my property, both real and personal, after my wife's decease, to my two daughters, in such proportions as my wife, by any legal instrument, may direct; but if she makes no appointment, then to be equally divided between them; and in case only one survives their mother, the whole to the survivor, unless the deceased daughter shall leave any children; in which case they shall inherit the portion intended for their mother. It is my will that the fortune of each of my daughters shall go to her children [664] after her decease, in such proportions as she may direct; but if no appointment, to be equally divided between them." The testator died in June 1843, leaving his widow and two daughters, both of whom were married, Mrs. Jebb and Mrs. Blood, surviving him. By a deed-poll dated the 23d of May 1844, Mrs. Yerbury, by virtue and in execution of the power given to her by her husband's will, directed and appointed 7DEaM.fcO.MS. JEBB V. TUGWELL 259 that from and after her decease one moiety of the real estate and one moiety of the personal estate of the testator should go and be to such uses as Mrs. Blood, notwithstanding her coverture, should at any time, by deed or will, appoint; and in default of such appointment, and subject thereto, in trust for Mrs. Blood, her heirs, executors and administrators, absolutely. And in further exercise of her power, Mrs. Yerbury directed and appointed the other moiety of the real and personal estate of the testator, in a similar manner, to such uses as Mrs. Jebb should appoint; and in default of appointment, and subject thereto, to the use of Mrs. Jebb, her heirs, executors and administrators, absolutely. And in further exercise of her power, Mrs. Yerbury directed and appointed that the aforesaid appointments should take effect immediately upon the execution of the deed-poll, notwithstanding that the actual enjoyment of the property which was the subject thereof was postponed until her own decease. On the following day, by an indenture dated the 24th day of May 1844, and made between Mrs. Blood and Mrs. Jebb, and their husbands, Major Blood and Mr. Jebb, of the one part, and the four trustees of the other part, reciting the testator's will and the deed-poll exe-[665]-cuted on the previous day, Mrs. Blood appointed the moiety of the testator's real and personal estate over which, by virtue of the will or deed-poll, she had a power of appointment, to the use of the four trustees, their heirs, executors and administrators, in trust, during the life of Mrs. Blood, to apply the rents, issues and profits, interest, dividends and income of the said moiety as she should direct or appoint, and in default thereof, for her sole and separate use, without power of anticipation, and after her decease, in trust to pay the same to her husband, Major Blood, for his life; and directed, that after the decease of the survivor the said moiety should be in trust for all and every, or such one or more exclusively of the other or others of the children of Mrs. Blood, by either her then present or any future husband, as she should by deed or will appoint; and in default of appointment, in trust for all such children equally, as tenants in common, &c., their interests to be vested and transmissible, if sons, at twenty-one, and if daughters, at twenty-one or marriage, with powers of maintenance and advancement. And if there should be no child of Mrs. Blood who should acquire a vested and transmissible interest in the said moiety, then it was to be held upon the same trusts for the benefit of Mrs. Jebb for life, and after her decease for Mr. Jebb for life; and after the decease of the survivor, for the benefit of their children, on the same trusts in all respects as were thereinafter declared of and concerning the other moiety which was thereinafter appointed by Mrs. Jebb. And upon failure of all the previous limitations, to such uses as Mrs. Blood should by deed or will appoint; and in default of appointment to her, her heirs, executors, administrators and assigns. And Mrs. Jebb thereby appointed the other moiety, over which she had a power of disposition by virtue of the will or deed-poll, to uses and upon trust (exactly similar to [666] those limited and declared by Mrs. Blood), in favour of herself, her husband and her children; and in default of children, in favour of Mrs. Blood, her husband and children, with an ultimate limitation to such uses as Mrs. Jebb should by deed or will appoint, and in default of appointment to her, her heirs, executors, administrators and assigns. The Master of the Rolls held that the deed of May 23d 1844 was inoperative and void, except so far as it appointed the property in equal moieties, and that the deeds of May 24th 1844, were null and void. Mr. Follett and Mr. Wickens, for the Plaintiffs. The deed of May 23d 1844 was substantially aa appointment to the separate use of the daughters, which is within the scope of the power; Alexander v. Alexander (2 Ves. sen. 640), Alloway v. Alloway 4 Dr. & War. 380X Phipson v. Turner (9 Sim. 227), Bray v. Hammerdey (3 Sim. 513 ; S. C. nom. Bray v. Sree, 2 Cl. & Fin. 453), Goldsmid v. Goklsmid (2 Hare, 187), Dicken-son v. Mart (8 Hare, 178). There could have been no question on the subject, but for the gift in the will to the children of the daughters. That gift, however, is only in the event of no appointment being made. Mr. R. Palmer and Mr. Shapter, for a Defendant in the same interest. The limitation to the children, being only in default of appointment, does not affect the power; nor does the word " proportion " in the power limit it. [667] They referred to Soe v. Dunt (2 Wils. 336), Phipson v. Turner (9 Sim. 227), Woodcock v. Rmneck (4 Beav. 190), Mostly v. Wakeman (V.-C. Turner, not reported), 2 60 JEBB V. TUG WELL 7 DE 0. M. & 0. 868. Boyle v. Bishop of Peterborough (1 Ves. jun. 309), Crazier v. Crazier (3 Dr. & War. 373). Mr. Baily and Mr. Shebbeare, for the Respondents. The last clause applies both to appointed and unappointed shares, and on the true construction of the will the widow could only determine the shares which the daughters should take, and could not modify their interest in those shares. They referred to Campbell v. Sandys (1 Sch. & Lef. 281), Eaton v. Barker (2 Coll. 124), Campbell v. Broumrigg (1 Ph. 301), Lassence v. Tierney (1 Mac. & Gor. 551). Mr. Follett, in reply. the lord justice knight bruce. In this case I think that the first question proper to be considered is, what would have been the construction and effect of the will now before us if the clause immediately preceding the appointment of executors, i.e., "it is my will that the fortune of each of my daughters shall go to her children after my decease in such proportions as she may direct, but if no appointment to be equally divided between them," had been omitted from the instrument, and it had stood in all other respects as it now stands. In that case it would, I think, have been clear, on autho-[668]-rities which may and ought to be followed, that the widow would have had power, subject to her life interest, to appoint the whole property, and the absolute interest in the whole property, to the two daughters as tenants in common] for their separate use respectively; a construction which does not seem to ma prevented by the supposed meagreness of the expression "in such proportions." The words are, in my judgment, not insufficient to give the widow...
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