Keer v Brown
| Jurisdiction | England & Wales |
| Judgment Date | 22 March 1859 |
| Date | 22 March 1859 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 371
HIGH COURT OF CHANCERY
S. C. 28 L. J. Ch. 477; 5 Jur. (N. S.) 457; 7 W. R. 372.
Fines and Recoveries Abolition Act. 3 & 4 Will. 4, c. 74. Protector to Settlement. Feme Coverte. Separate Use. Disentailing Deed
[138] keer v. brown. March 21, 22, 1859. [S. C. 28 L. J. Ch. 477; 5 Jur. (N. S.) 457 ; 7 W. R. 372.] Fines and Recoveries Abolition Act. 3 & 4 Will. 4, c. 74. Protector to Settlement. Feme Coverte. Separate Use. Disentailing Deed. Where, by an instrument executed before the Fines and Recoveries Abolition Act (3 & 4 Will. 4, c. 74), real property is settled to the use of a married woman for life, for her separate use, with remainder over in tail, she is, under the 24th section of the Act, the sole protector of the settlement, and her husband's consent is not requisite, under the 34th section, to enable the tenant in tail to make an absolute disposition of the property. A special case. By an indenture of appointment and release, dated 1805, and made between William Moore and Esther, his wife, of the first part, Richard Wilson of the second part, and George Wilson and the said Richard Wilson of the third part, two messuages in Stockwell, in the county of Surrey, with other hereditaments therein mentioned, were appointed and conveyed to George Wilson [139] and his heirs, to the use of George Wilson and Richard Wilson, their heirs and assigns, during the life of Esther Moore, upon trust for her separate use, and after her decease to the use of John Bedwell, Mary Goldsmith (then the wife of William Goldsmith), Martha Bedwell and Elizabeth Bedwell, during their respective lives, as tenants in common (subject, as to the estate for life of the said Mary Goldsmith therein, to the proviso thereinafter contained respecting the same). And as to the respective shares of every one of them, the said John Bedwell, Mary Goldsmith, Martha Bedwell and Elizabeth Bedwell, in the said hereditaments, after the determination of his or her respective estate for life therein, by forfeiture or otherwise, in his or her respective lifetime, to the use of the said George Wilson and Richard Wilson and their heirs, during his or her respective natural life,'in trust to preserve contingent remainders ; and from and after his or her respective decease, then as to his or her respective share of and in the same hereditaments, to the use of all and every his or her respective child and children as tenants in common in tail, with remainders over in tail. And it was thereby declared that the estates for life thereinbefore limited to the said Mary Goldsmith, as and when she should be in or entitled to the actual possession or enjoyment of the same under the limitations aforesaid, should not be subject or liable to the power, control, debts, engagements or incumbrances of the said William Goldsmith, her husband, in any manner whatsoever; and that her receipts alone, and without her then present or any future husband, should be good discharges to the said George Wilson and Richard Wilson, and the survivor of them, and the heirs and assigns of such survivor, for the rents of her share of the premises. And power was then given by the said indenture to the said Esther Moore, by her will, to revoke all or any of the said uses and trusts, and to limit, direct and appoint the pre-[140]-mises whereof the uses or trusts should be so revoked upon such new uses and trusts as she should think fit. By virtue of the last-mentioned power Esther Moore, by her will, in 1811, revoked all the uses and trusts limited and declared by the indenture of 1805, and directed 372 KEBR V. BROWN JOHNS. 141. that the hereditaments therein comprised should go, remain and be to such uses, and upon such trusts, and subject to such provisoes and directions as by the same indenture were limited and declared concerning the same, but so as if the said John Bedwell and his issue bad not been mentioned therein. And the said testatrix, by her will, directed that the life interests thereinbefore limited to the said Mary Goldsmith, Martha Bed-well, then and therein called Martha Heywood, and Elizabeth Bedwell, then and therein called Elizabeth Last, respectively, should be subject to the like restrictions, declarations and directions, for providing that the same respectively should be for their sole and separate use, and free from the debts or control of their then present or any future husbands, as in the said indenture of 1805 were contained as to the life-estates thereby limited to the said Mary Goldsmith; and. that their respective life-estates should not be disposable by them respectively in the way of anticipation. Esther Moore died in 1818. Mary Goldsmith had issue thirteen children, of whom Eliza, the wife of James Lenton, was one. By an indenture, dated November 1841, and made between the said Mary Goldsmith of the first part, the said James Lenton and Eliza, his wife, of the second part, Thomas Cree of the third part, and David Cree of the fourth part, and duly acknowledged by the said Elizabeth Lenton, and inrolled, for the purpose of barring estates tail, the said [141] James Lenton and Eliza, his wife, with the consent of the said Mary Goldsmith as protector of the settlement, released and disposed of all the one undivided thirteenth part or share of her, the said Eliza Lenton, of and in the one undivided third part or share of the said Mary Goldsmith of and in the premises, subject to the life-estate of the said Mary Goldsmith therein, unto the said Thomas Cree, his heirs and assigns. William Goldsmith, the husband of Mary Goldsmith, was alive at the time of the execution of the last-mentioned indenture, but did not consent to or execute the same. In 1849 a suit was instituted for partition of the premises, to which the persons entitled in remainder after the determination of the estate tail of Eliza Lenton, in case Mary Goldsmith was not the sole protector of the settlement, were not made parties. And by the decree in the suit, dated 1857, the two messuages aforesaid were allotted to the Plaintiffs in severalty; and it was ordered that all parties, including the said Thomas Cree, should execute a conveyance of the same accordingly. In 1858 the Defendant contracted to purchase these messuages of the Plaintiff...
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