Lady Mary Topham v The Duke of Portland
| Jurisdiction | England & Wales |
| Judgment Date | 20 June 1863 |
| Date | 20 June 1863 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 239
BEFORE THE LORDS JUSTICES.
S. C. with note, 1 De G. J. & S. 517.
[603] lady mary topham v. duke of portland. Before the Lords Justices. June 20, 1863. [S. C. with note, 1 De G. J. & S. 517.] The costs of an application to stay the execution of a decree pending an appeal to the House of Lords are to be paid by the applicant. This was an application by Lady Harriet Cavendish Bentinck, that the proceedings under the decree in this cause, so far as related to the transfer and payment of certain sums of stock and cash to the Plaintiff, might be stayed pending an appeal by Lady H. C. Bentinck to the House of Lords from the decree made on the hearing of the appeal before the Lords Justices (1 De G. J. & S. 517). Mr. Giffard and Mr. T. Stevens appeared in support of the application, and the solicitor-general (Sir R. Palmer), Mr. Charles Hall and Mr. Rowcliffe, for the Plaintiff. It was arranged that an order should be taken in the following form :- That, notwithstanding the said order (2d May 1863), [604] the Defendants the Duke of Portland, &c., do on or before the 20th of July 1863 or within seven days after service of this order upon them, transfer into the name of the Accountant-General in trust in this cause the 22,710, 18s. 8d. Bank annuities in the said order mentioned, and that Defendant Lady Harriet C. Bentinck do within the time aforesaid pay into the bank to the credit of this cause the 3311, Os. 9d. cash therein also mentioned. Directions to invest the cash in consols and pay the dividends on the transferred 240 WALMSLEY V. FOXHALL, 1 DEO. J. * 8. 608. consols and on the purchased consols to the Plaintiff Lady Mary Topham upon her separate estate until further order, with liberty for her to apply for a reinvestment on other securities. the solicitor-general asked for the costs of the motion. Mr. Giffard, for the applicant, contended that the costs ought to abide the result of the appeal. their lordships, after conferring with the registrar, said that, according to the course of the Court, the applicant must pay the costs of the application. Ordered, that Defendant Lady H. C. Bentinck do pay to the next friend of the Plaintiff and to Defendants the Duke of Portland and Lord H. C. Bentinck their costs of this application, to be taxed, &c. (Beg. Lib. 1863, B. fol. 1427.)
English Reports Citation: 54 E.R. 1242
ROLLS COURT
See S. C. on appeal, 1 De G. J. & S. 517; 46 E. R. 205; 11 H. L. C. 32; 11 E. R. 1242. See cases in note 46 E. R. 205.
[525] lady mary toi-ham v. the duke of portland. April 23, 24, 25, June 30, 1862. [See S. C. on appeal, 1 De G. J. & S. 517; 46 E. E. 205; 11 H. L. C. 32; 11 E. K. 1242. See cases in note 46 E. E. 205.] The donee of a power cannot execute it for an object foreign to purposes for which it was intended, and therefore an ordinary power in a marriage settlement of appointment amongst the children cannot be made subservient to the accomplishment of any particular fancies or inclinations which the donee of the power may have as to the profession in life which a child may choose to adopt, nor can it be exercised in such a mode as to prevent a child marrying a particular person. An appointment was made to A. (an object of a power) with trusts in favor of B. (another object), but intended to accomplish a purpose not warranted by the power. Held, that it could not be treated as an absolute appointment to B. discharged of the void purpose. An appointment, under a, previous agreement, that the appointee will deal with the appointed fund in a manner foreign to the purposes for which the power was intended is void, and so is such an appointment where the agreement is subsequent, if accomplished by the inevitable influence possessed by the appointor over the appointee. A parent, having by his settlement an exclusive power of appointing a fund to his children, was desirous of preventing a daughter marrying a particular gentleman. For that purpose, he appointed part of the fund to his son, who, about a month afterwards, settled it on discretionary trusts in favor of the daughter, the object being to prevent that marriage. Held, that this was one transaction, that the object aimed at was foreign to the purposes for which the power was intended, and that the appointment was altogether void in equity. 31BBAV.BM. TOPHAM V. PORTLAND 1243 The execution of a power in such a form as to tend to prevent a marriage between A. (an object) with B. is valid, if such be the object of the original settlement creating the power. This suit was instituted by Lady Mary E. Topham, by her next friend, against the Duke of Portland, Mr. Ellis, Lord Henry C. Bentinck, Lady Harriett C. Bentinck, Sir William Topham (the Plaintiffs husband) and Mr. James (the trustee of a settlement), and the questions raised thereby were as to the validity of various appointments alleged to be in fraud of the powers, and as to the effect of such appointments. The circumstances and arguments are fully detailed in the judgment of the Court. the solicitor-general (Sir R. Palmer), Mr. Kolt, Mr. Follett and Mr. Rowcliffe, for the Plaintiff. [526] In re Marsden'x Trust (4 Drew. 594); Carver v. Bwvles (2 Russ. & Myl. 301); Scroggx v. Scroggs (Amb. 272); Welksky v. Aforninglon ('2 Kay & J. 143); Fanner v. Martin (2 Sim. 502); Jackson v. Jackson (4 Bro. C. C. 462); Fry v. Capper (Kay, 163); Russell v. Jaekson (10 Hare, 204); Saauleman v. M'Kenzie (1 John. & Hem. 613); Chadieick v. Doleman (2 Vern. 528); Salman v. Gibbs (3 De G. & Sm. 343). Sir Hugh Cairns, Mr. Hardy and Mr. A. Bailey, for the Duke of Portland. Stnud v. Norman (Kay, 313); Birky v. Birley (25 Beav. 299); Probij v. Lander (28 Beav. 505); Wallgram v. Tells (2 K. & J. 313); Ingram v. Ingrain (2 Atk. 8); Lomax v. Ripky (3 Sm. & Gif. 48); Daubeny v. Cockburn (1 Merr. 626); M'Queen v. Fanpthar (11 Ves. 479); Keily v. Keily (4 Dru. & War. 55); Watt v. CreyJce (3 Sm. & Gif. 362); Boutkdge, v. Donil (2 Ves. jun. 357); Sadkr v. Pratt (5 Sim. 632); Feamn v. Desbrisay (14 Beav. 635); Beere v. Ho/mister (23 Beav. 101); Bristow v. Wank (2 Ves. jun. 350); Mmldison v. Andrew (1 Ves. sen. 57); Robinson v. Ha/rdcastk (2 Term. Rep. 241); Eichardson v. Simpson (3 Jo. & Lat. 540); Askham v. Barker (12 Beav. 499, and 17 Beav. 37); Alexander v. Alexander (2 Ves. sen. 640); White v. St. Em-be, (1 Ves. & Bea. 399); Goldmiil v. Goldsmid (2 Hare, 187); Wright v. Go/ (22 Beav. 207); Lassence v. Tierney (1 Mac. & Gor. 551 ; 2 Hall & Tw. 115); Sawnden v. Vauli&r (4 Beav. 115 ; 1 Cr. Ph. 240); PaZmw [527] v. Wheekr (2 Ball & Beat. 18); tester v. Oautley (3 Sm. & Gif. 96 ; 6 De G. M. & G. 55); Cosset's Trusts (19 Beav. 529). Mr. Lloyd and Mr. Hobhouse, for Mr. Ellis. Mr. Oaborne and Mr. F. P. Morris, for Lord Henry Bentinck, cited Eowley v. Roidey (Kay, 242). Mr. Giffard, Mr. T. Stevens and Mr. Freeling, for Lady Harriett Bentinck, Mr. Selwyn, for Sir W. Topham and his trustee, Sugden on Powers (pp. 613, 528, 618 (8th edit.)). the solicitor-general, in reply. June 30. the master of the rolls [Sir John Romilly]. This is a suit instituted by Lady Mary Topham, contesting the validity of various appointments relating to two sums of 8000 each, to an annuity of 2720, and to the income of a fund originally consisting of 52,000 3, 10s. per cents., but since increased and varied by accumulations and changes of security. The bill prays, first, that the Plaintiff may be declared entitled to the sum of 18,686, 2s. 8d. New 3 per cent, annuities, bought with these sums, or, in the alternative, that the appointment may be declared void, and it then proceeds to ask for similar relief as to the [628] appointments relating to the two other funds. It will be necessary to consider these appointments separately, those which relate to the two sums of 8000 each rest 011 different instruments, and require a distinct consideration from the appointments of the annuity and the 52,000. As first in order of date, it will be proper to consider the appointments relating to the two sums of 8000 each, but, in order to explain the view I take of this case, it is necessary that I should state, somewhat in detail, the instruments that have been executed and the events which have occurred, on the combined effect of which the solution of the question discussed before me must depend. In August 1795 the marriage of the late Duke and Duchess of Portland took place, and on that occasion the English estates of the duke and the Scottish estates of the duchess were settled by two contemporaneous indentures. By that which 1244 TOPHAM V. PORTLAND 31 BEAV. 529. bears date the 4th of August 1795, in the events which have happened, the English estates of the duke were charged with 40,000 in favor of the younger children of the marriage in such shares and proportions as the duke and duchess or the survivor should appoint, and, in default of appointment, amongst such younger children equally. At the same time, and on 3d August 1795, the Scottish estates of the duchess were charged with .70,000 in favor of the younger children of the duchess by any marriage who or their issue should survive their father and mother. Of this sum 40,000 was limited to belong to the younger children of the first marriage in such shares as the duke should appoint, and, in default thereof, as the duchess should appoint, and, in [629] default of any appointment, amongst them equally. These are the two powers, the mode of exercising which by the late duke is complained of by the Plaintiff. lu June 1814 the duke executed two indentures; by the first of which he charged his Nottinghamshire estates with a jointure and rent charges in favor of the duchess, and subject thereto, he created a term of 1000 years in such estates vested in two trustees. By the second of these indentures he declared the trusts of this term to be, to raise the 40,000 settled by the...
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