Lord Teynham v Webb
| Jurisdiction | England & Wales |
| Judgment Date | 02 May 1750 |
| Date | 02 May 1750 |
| Court | High Court of Chancery |
English Reports Citation: 28 E.R. 128
HIGH COURT OF CHANCERY
See Matthews v. Paul, 1819, 3 Swans. 340; Winham v. Graham, 1826, 1 Russ. 342 (n.); Bootle v. Scarisbrick, 1847, 1 H. L. C. 182 (n.); Lyddon v. Ellison, 1854, 19 Beav. 571; Reid v. Hoare, 1884, 26 Ch. D. 369.
Lord teynham v. webb, March 2, 1750-1, [See Matthews v. Paul, 1819, 3 Swans. 340; Winham v. Graham, 1826, 1 Euss, 342 (n.); Bootle v. Scarisbrick, 1847, 1 H. L. C. 182 (n.); Lyddon v. Ellison, 1854, 19 Beav. 571; Reid v. Hoare, 1884, 26 Ch. D. 369.] Vesting. Grandmother under a power, creates, by deed, a term to commence after her death for raising money for younger children; as their father should appoint: If no appointment, equally; if but one, besides the eldest, then to that one; if none except the eldest, then to him; if no eldest son, then to her own executors. At the date of the deed there was one grandson and one grand-daughter. The father afterwards had another son, and died without appointment. The eldest son having died under age, held that the whole sum belonged to the daughter, and that the younger son having thus become an eldest son, was excluded. (Lord Hardwicke determined this point, not merely on the intent (as to which see p. 211), but on the authority of Doleman v. Chadwick, 2 Vern. 528, which has frequently been approved and acted upon. See the principal case, p. 210, &c., and Chadwick v. Doleman, 2 Vern. 528, &c. Mr. Baithby's edition, which (inter alia) cites Broadmead v. Wood, 1 Bro. 77. Vide also in Hubert v. Parsons, 2 Ves. sen. 261, &c.) Elder son unprovided for considered as a younger. (See p. 203, note. Also in Colejnan v. Seymour, 1 vol. 210. Emery v. England, 3 Ves. 232. Lady Lincoln v. Pelham, 10 Ves. 166. Bowles v. Bowles, ibid. 177.) Vesting not suspended, in general by a power to appoint. (As to the points mentioned under this head, p. 208, see Gordon v. Levi, Amb. 364. Doe v. Martin, 4 T. B. 39, and Smith v. Lord Carrington, 2 Ves. jun. 698, &c. Also Loder v. Loder, post, 530.) Portions not to be raised for the representatives of a child, who died before it was naturally required. (Vide Hubert v. Parsons, 2 Ves. sen. 261.)-[Supplement, 325.] Lady Strangford, having a power over an estate, (1) created a term of five hundred years to commence after her own death for raising £300 per annum, for her daughter Elizabeth Audley, during her life; and from and immediately after the death of herself and Elisabeth Audley, and the survivor of them, to raise £6000 to pay £5500 part thereof to and among all and every child and children, sons and daughters, of Lord Teynham by his then wife begotten or to be begotten, except their eldest son, in such parts, shares and proportions, as the said Lord Teynham by any writing under hand and seal, attested by three credible witnesses, shall direct and appoint; for want of appointment then in equal proportions, share and share alike- If it should happen, 2 VES. SEN. 199. TEYNHAM (LORD) V. WEBB 129 that Lord Teynham by his wife should have but one child besides the eldest son, the said sum of money to be paid to such child; if none except the eldest son, then to be paid to that eldest son ; if no eldest son, then to go to executors and administrators of Lady Strangford. At the time of making this deed in 1710, Lord Teynham had but one son Philip, and a daughter Mary: but afterward had another son, the present plaintiff. Lord Teynham died in 1723, without having executed his power; Philip died in 1727, not quite of age; on which his younger brother the plaintiff, then about eighteen, succeeded to the honour and estate of the family. In 1729, Mary married Mr. Webb, with the privity and approbation of Lady Strangford and the rest of the family. Lady Strangford died in 1730 ; Elisabeth Audley in 1732. Mr. Webb having given a note to pay his father £3500 out of this sum, which was to be raised for his wife's portion, his wife, after her husband's death, purchased this note for £1500, to which the plaintiff was proved to be privy, and to have encouraged his sister thereto, and to have assisted her in raising the £1500. The plaintiff used to receive- the interest of this £5500, and pay it to his sister and her husband : but now brought this bill to have a moiety of this £5500 raised and paid to him with the interest [199] thereof; or that, if the defendant his sister had received the whole interest of the whole sum, she might account to him for one moiety of that interest in consequence of his right. For plaintiff. The first question is, at what time this portion, provided for the younger children, vested an interest in them 1 Three times may be considered; the death of the father, or of Elizabeth Audley, or the time of the term coming into possession. There is a difficulty in considering it vested at either of the latter times ; therefore it shall be at the death of the father, when plaintiff was clearly one of the objects, for whom this provision was made ; and would be so intitled if things had remained in that situation, although the term did not come into possession by way of raising the profits of it till after those two periods of time. The suspension of vesting was only, while the father's power of appointment continued, which ended with his death, being no longer executory or uncertain: and in this light this case is like those determined on the doctrine of reversionary terms; for, which ever way determined, the court was inclined strongly to the vesting the interest independent of the commencement of the term, 1 Wil. 448, 2 Ver. 460. Suppose the father had appointed it to be equally divided, it would have vested, and could not be devested ; then it vests equally in default of appointment. There is no implication of the not intending from the plaintiff's having the inheritance, as in the cases on marriage articles; for the plaintiff has not the inheritance of this estate. There is nothing in this deed, or in what happened afterward from becoming an elder son, that will devest it: nor any case where the court has said, a vested interest in a younger child shall be taken from him on his becoming an eldest. There is nothing contingent in the payment itself, but from the circumstances of the fund : the payment being only suspended for benefit of Elizabeth Audley. Then it is the common case of a sum to younger children, but payable at a future time (see 2 P. W. 612, note, and Bolger v. Mackell, 5 Ves. 509): the suspension of which payment is merely on collateral consideration of the persons who were to receive the benefit of it during their lives. In Lowther v. Condon [cited ante, in Hogdson v. Rawson, 1 Ves. sen. 45, S. C. 2 Atk. 127], the time of payment was only suspended from circumstances of the iund : yet your Lordship held it vested. A contingent, much more a vested, interest is transmissible. The court never takes away the benefit of a younger child's vested portion for the other children on the particular hardship or circumstances of the case; òGraham v. Lord Londonderry (3 Atk. 393), 24 November 1746 ; where the trust of two terms was declared, if the father should have one issue male and other child or children, -son or sons, daughter or daughters, to raise the following portions ; if but one younger òchild, £5000, if two or more, £10,000, to be equally divided among them; to be paid to the sons at twenty-one, to the daughters at eighteen or marriage, which should first happen after death of the father, or otherwise at such times during his life as the father should think fit, if he thought proper to appoint it: if any younger child die before his portion [200] became payable, it should go to the survivors, share and share alike, so as the portion of an only younger child should not exceed £5000 ; if none lived to be intitled, it should not be raised. At the father's death there were two sons and a òdaughter : Lord Londonderry was then a younger child, but before he was twenty-one, he became eldest by death of his brother : yet your Lordship held, he was intitled to his C. vm.-5 130 TEYNHAM (LORD) 1). WEBB 2 YES. SEN. 201, portion as a younger child, it being to be taken as at death of his father : it was admitted not so vested in him at his father's death as to have it raised, and that if he died before-raised, it would not be transmissible : but as he lived to twenty-one, though he became eldest before, it was originally so vested, that he was intitled to his share. In Trafford v. Ashton, 2 Ver. 660, though an eldest son was expressly excluded, another becoming eldest was intitled. Chadwick v. Doleman, 2 Ver. 528, is very different: that was an appointment by a father over his own estate : and such powers are considered in a larger sense than powers over another estate : nor will that case be extended farther. Devesting is odious in law, and unless through necessity not admitted. Several incon-veniencies arise from postponing the vesting till a time after the father's death; for that will hold throughout among all the younger children ; as if all, eldest and youngest, should die in life of Lady Strangford, it would go to her representatives ; or if plaintiff's brother had lived a great while, and died but a little before Elizabeth Audley, plaintiff might have continued several years, his whole life perhaps, a younger child without any provision under this deed : nay even the defendant would have been in the same case; for there is no other provision for younger children under the family-settlement: these difficulties prove, the intent was otherwise. As to the subsequent acts of plaintiff, supposing the evidence goes to the payment of the whole interest to defendant, no proof that plaintiff ever knew of any such provision made for him, or that he had any right to it, or that knowing his right he intended it as a gift to his sister; so that if a mistake, it cannot give away a right. The court often relieves a mistake : but will never from...
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