Lee v Fernie
| Jurisdiction | England & Wales |
| Judgment Date | 26 July 1839 |
| Date | 26 July 1839 |
| Court | High Court of Chancery |
English Reports Citation: 48 E.R. 1027
ROLLS COURT
[483] lee v. fernie. July 26, 1839. A. B., being desirous of voluntarily settling property on the female descendants then in existence of C. D., by deed reciting this desire and that certain persons therein .named were the only descendants then in life of C. D., settled a part of the property on the persons so named, and reserved to himself a power of appointing the remaining part of the property amongst such several persons before named, which, in default of appointment, was given to those several persons named; he .afterwards discovered that there were other descendants in existence of C. D., who had been omitted, and, to remedy the omission, he appointed a part of the fund to an abject of the power, upon his executing bonds for the payment to the persons newly discovered, of the amount when received. Held, that the appointment was void, and that the Court would not, in a suit to have the rights of the parties to the appointed fund declared, determine whether the case was such as to entitle the parties to have the settlement reformed according to the intention of the settlor. Jean Law executed a deed of entail in 1703, and a deed, of ratification and -confirmation in 1707, whereby, subject to certain limitations of the Lauries^[484]-towa and Randlestown estates, which failed on the death of her great-grandson Francis J. W. Law without issue, "she obliged her other nearest heirs whatsoever to 1028 LEE V. FERNIE 1 BEAV. 488. sell those estates, and apply the produce amongst the children of her seven children, giving one-seventh to each stock." Francis J. W. Law having become entitled to these estates, he, by a deed dated the 24th of December 1821, reciting the deeds of 1703 and 1707, and that he was seised of the estate in fee-simple, unfettered by the reservations, provisions, conditions, limitations and restrictions contained in the deed of entail; and further reciting that he was advised that the said ratification and obligation executed by Jean Law had become lapsed by the operation of prescription, but that he was nevertheless desirous, of carrying the intentions of the said Jean Law into effect with respect to such of the female descendants of the said Jean Law as were then in existence, viz., the female descendants of Andrew Law the fourth son of Jean Campbell, of William Law her second son, and the descendants of Margaret Hay (all the female descendants of the other children of Jean Campbell having failed); it was witnessed, that Francis J. W. Law conveyed the estate to trustees, in trust to sell, and make certain payments, and invest the residue; and after reserving to himself a life interest therein, he gave one-seventh " to James Hugh Grandison and George Fernie, being the only descendants then in life of the said Andrew Law:" he then gave other portions of the fund to other persons specifically named ; and he reserved to himself the power of appointing two-sevenths and two-fourths of one-seventh of the fund "to and amongst the several persons thereinbefore named," in such proportions as he the said Francis J. W. Law should appoint; and in default of appointment [485] this portion...
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