Lee v Head
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1855 |
| Date | 01 January 1855 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 608
HIGH COURT OF CHANCERY
S. C. 3 Eq. R. 1046; 1 Jur. (N. S.) 722; 3 W. R. 591.
Power of Appointment. Limitations in default. Advancement. Pleading. Special Case.
[620] lee v. head. Feb. 22, June 29, July 4, 1855. [S. C. 3 Eq. E. 1046; 1 Jur. (N. S.) 722 ; 3 W. E. 591.] Power of Appointment. Limitations in default. Advancement. Pleading. Special Case. Settlement of lands to the use of children as the parents should appoint, and in default of appointment to the children, as tenants in common in tail. There being only two children, a son and a daughter, the father on the daughter's marriage advanced her a sum exceeding in value her moiety of the lands; and by the settlement executed previous to- her marriage, it was declared that such sum was advanced and agreed to be accepted and taken in lieu, bar and full satisfaction of all and every sum and sums of money, legal and beneficial estates and interests whatsoever, to which she then was or at any time thereafter should be entitled under the settlement made on the marriage of her parents. Held, that the daughter was absolutely barred of all estate and interest in the settled lands, and that the whole of such lands became vested in the son as tenant in tail. In such cases there is a presumption-liable however to be rebutted by evidence to the contrary-that the father in so advancing one child intends to clear the property of the claim of that child for the benefit of his other children, not of himself, and so as to let such other children have the benefit of the advanced child's share. Sir W. Grant's decision in Folkes v. Western (9 Ves. 456), maintained and shewn to be consistent with Pitt v. Jackson (2 Bro. C. C. 51), although some of Sir W. Grant's reasons are not satisfactory. Where a creditor of a deceased person is named as Plaintiff in a special case, the record should not be intitled " Between such Creditor on behalf of himself and all other Creditors of the deceased Plaintiffs and the Defendants," such other creditors not being before the Court, and therefore not bound by the proceedings. By indentures executed in 1790, previously to the marriage of Christopher Flood and Elizabeth Dunsford, real estates were limited, subject to successive life-estates in Christopher and Elizabeth, to the use of all and every or such one or more of the child or children of the marriage, for such estate or estates, interest or interests, and in such parts, shares and proportions, manner and form, and chargeable with the payment of such sum or sums of money, unto or amongst or in trust and for the benefit of all and every or such one or more of the other children of the marriage, with or without power of revocation, as Christopher should by deed or will appoint, and in default, as Elizabeth, in ease she survived her husband, should appoint; and in default of such appointment, or in case any such should be, then so soon as the estates and interests to be thereby limited should respectively end and determine, and as to the parts 1K.&J. 621. LEE V. HEAD 609 of the premises whereof no such gift, devise, &c., should be made, to the use and behoof of all and every the children, if more than one, of the marriage, and of the [621] several and respective heirs of the bodies of all and every such children as tenants in common, with remainders over, with remainder to Christopher in fee. The settlement contained a covenant by Christopher Flood to lay out a sum of 2000, which Samuel Dunsford, the father of Elizabeth Dunsford, agreed to advance for his daughter's marriage portion, in the purchase of lands, and to convey such lands to the same uses. The ,2000 was never paid by Samuel Dunsford. Samuel Dunsford died in 1802, having by his will, dated in that year, bequeathed 1000 to trustees, upon trust to invest and pay the interest to his daughter Elizabeth for her life; and after her death to her husband, Christopher Flood, for his life : and after the death of Christopher Flood and Elizabeth, his wife, then, upon trust, to account for and pay the 1000 and interest unto and amongst all and every, or unto such one or more, of the child or children of Elizabeth by her said husband born or begotten, or to be begotten, in such shares and proportions, manner and form as Elizabeth should, notwithstanding her coverture, by deed or will appoint; and, in default of such appointment, then as Christopher should after her death by any deed, will or writing duly executed and attested give, bequeath, direct or appoint; and in default of such gift, &c., then upon trust to account for and pay the 1000 and interest, or such part thereof as should not have been so given, &c., unto and amongst all and every the children of Elizabeth by her said husband who should live to attain twenty-one, as tenants in common. And after certain other legacies the testator gave the residue of his personal estate and all his real estate to Christopher Flood, his heirs, &c., and appointed him sole executor of his will. [622] Christopher Flood proved the will. There was issue of the marriage two children only, Elizabeth Margaret, who married the Defendant, Head, and Christopher Samuel Flood. By an indenture, executed in 1823, previously to the marriage of Mr. and Mrs. Head, it was recited that Christopher Flood had agreed to give and advance in money and securities for money 6000, as the marriage portion and fortune of his daughter Elizabeth Margaret, and to be by her accepted and taken in lieu, bar and full satisfaction of all and every sum and sums of money, legal and beneficial estates and interests whatsoever, to which she was then or at any time thereafter should or might be entitled under or by virtue of the will of Samuel Dunsford or the settlement of 1790. Trusts were declared of the 6000 for the benefit of Mr. and Mrs. Head and their children. And the indenture then contained a proviso that the several sums so secured and paid by Christopher Flood were so paid and advanced, and agreed to be accepted and taken, in lieu, bar and full satisfaction of all and every sum and sums of money, legal and beneficial estates and interests whatsoever, to which Elizabeth Margaret then was or at any time thereafter should or might be entitled under or by virtue of the will of her said grandfather or the settlement of 1790. Elizabeth Flood died in 1830. By indenture, dated in 1833, lands allotted to Christopher Flood in respect of the lands comprised in the settlement of 1790 were conveyed by him to Christopher Samuel Flood in fee. In 1843 Christopher Flood died, having made his will [623] in 1831, whereby, after directing his debts to be paid, he gave to his son Christopher Samuel 5000, to be paid out of his real and personal estate in one year after his death. The trusts of this sum were declared to be for Mrs. Head for life, and in case she survived her husband, for her absolutely, with certain other benefits to her children, in case of her death in her husband's lifetime. After which the testator declared as follows :-"And I do further declare that the provision I have already made, and which I have hereby made for my said daughter, shall be accepted and taken in full satisfaction and in lieu of all provision which she might otherwise be entitled to under my marriage settlement or by the will of my late wife's father, or otherwise, the whole of which it is my will shall go and remain to my executor hereinafter named for his entire benefit. Also all the rest, residue and remainder of my goods, chattels, moneys, securities for money and personal estate, and all my real estate whatsoever and V.-C. xiv.-20 610 LEE V. HEAD 1K.&J.624. wheresoever, I give, devise and bequeath unto my said son, Christopher Samuel Flood, his executors, administrators and assigns, subject however to the payment of the legacy hereinbefore given, and my debts and funeral expenses." The testator appointed his son, Christopher Samuel Flood, sole executor of his will. Christopher Flood having died largely indebted, and his son, Christopher Samuel Flood, who had proved his father's will, having in 1847 been declared a bankrupt, a special case was stated in which a creditor of Christopher Flood, who had filed a bill for the administration of his real and personal estate, was named as Plaintiff "on behalf of herself and all other the creditors of Christopher Flood, deceased," and Mr. and Mrs. Head, their daughter (an only child), Christopher Samuel Flood, and the assignees of his estate were named as Defendants, stating, in addition to the foregoing facts, that the value of the entirety of [624] the premises comprised in the indentures of 1790 and thereby settled was, at the date of the indenture of 1823, 2776, and the present value of the entirety of the premises, including the allotments, 2919; that nothing remained due from the estate of Christopher Flood to the trustees of the indenture of 1823 in respect of the covenants or trusts therein contained; and that Christopher Flood never exercised the power of appointment by the settlement of 1790 limited to him over the real estate therein comprised, except so far...
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