Mallott v Wilson

JurisdictionEngland & Wales
Date1903
CourtChancery Division
[CHANCERY DIVISION] MALLOTT v. WILSON. [1901 M. 3743.] 1903 April 21; May 27. BYRNE J.

Voluntary Settlement - Real Estate - Grant to Trustee - Refusal to act - Disclaimer by Grantee - Revesting of Legal Estate - Validity of Settlement - Mortgage of part of Settled Property - Marshalling for Payment of Mortgage - Priority of Cestui que Trust.

By a voluntary settlement of 1866, real estate was granted unto and to the use of a trustee upon certain trusts; the settlement contained the usual covenant for further assurance, but no power of revocation by the settlor. In 1867, the trustee executed a deed of disclaimer, and the settlor also purported to put an end to the settlement:—

Held, that the settlement was not thereby rendered inoperative, but that the trust was imposed on the settlor, in whom, by operation of law, the estate had revested after the creation of the trust.

Jones v. Jones, W. N. (1874) 190, followed.

Statement in Preston's notes to Sheppard's Touchstone, 7th ed. p. 285, that “from the moment there is evidence of disagreement” between the grantor and grantee, “then in construction of law the grant is void ab initio, as if no grant had been made,” discussed and explained.

In 1888, the settlor mortgaged part of the property comprised in the voluntary settlement; in 1899, this mortgage was paid off, and a transfer thereof taken for the benefit of the settlor's estate:—

Held, that the beneficiaries under the settlement were entitled to have the settlor's estate marshalled, and the mortgage discharged out of the unsettled portion of his assets.

SPECIAL CASE.

The subject-matter of dispute between the parties to this action was a sum of money, representing proceeds of sale of real estate included in two voluntary settlements, executed by the same settlor in 1866 and 1889, the main question argued being the effect of a disclaimer by the sole trustee of the first voluntary settlement, the parties claiming under the second settlement contending that the effect of this disclaimer was to render the first settlement wholly inoperative; there was also a subsidiary question whether a transfer of a mortgage of 1888, which had been taken by the settlor's executors for the benefit of his estate, gave them any priority over the persons claiming under the first settlement. The documents and facts, so far as material for the purposes of this report, were as follows:—

By an indenture of voluntary settlement of July 31, 1866, between Montague Joseph Fielden, the settlor, of the one part, and William Carr of the other part, after reciting amongst other things that the settlor was entitled to certain hereditaments, furniture, railway stock, and effects, and that he was desirous of making a settlement on his wife and any child or children he might have by her, certain real estate purported to be granted unto and to the use of the said William Carr, his heirs and assigns; and it was thereby declared that the said William Carr, his heirs, executors, administrators and assigns, should stand possessed of the said hereditaments and effects, and of the said sums of stock when respectively transferred to him or them upon trusts for the settlor's wife Alice Fielden for life for her separate use without power of anticipation, and after her decease in trust for all and every the settlor's children or child by her who being sons or a son should attain twenty-one, or being daughters or a daughter should attain that age or marry, and if more than one as tenants in common, and their respective heirs, executors, administrators, and assigns for ever, and if there should be but one such child, then the whole should be in trust for that one, his or her heirs, executors, administrators, and assigns. The settlements contained the following covenant by the settlor for further assurance: “for himself, his heirs, executors, and administrators, with the said William Carr, his heirs, executors, administrators, and assigns, that the said Montague Joseph Fielden, his heirs, executors, and administrators, and every person claiming any estate or interest in or out of the said hereditaments and premises hereinbefore respectively granted and assigned or expressed and intended so to be or any part thereof under or in trust for him, shall and will at all times hereafter at the request of the said William Carr, his heirs, executors, administrators, or assigns, at his or their costs or at the cost of the trust hereditaments and premises, make, do, and execute all such further lawful acts, deeds, and assurances for the more perfectly granting, assigning, and confirming the said hereditaments and premises hereinbefore respectively granted and assigned or expressed and intended so to be, unto and to the use of William Carr, his heirs, executors, administrators, and assigns respectively in manner aforesaid, and for enabling him or them to obtain possession of the said furniture.”

This settlement was executed by the settlor, but was never executed by William Carr.

On March 9, 1867, William Carr executed a deed-poll whereby he disclaimed the trusts of the settlement in the following terms: “The said William Carr doth hereby absolutely and irrevocably disclaim all the real and personal estate and effects whatsoever by the said indenture expressed to be granted or assigned unto or to the use of the said William Carr, his heirs, executors, administrators, or assigns, or to which he or they could or might in any manner become entitled under or by virtue of the same indenture. And also all trusts, powers, and authorities whatsoever expressed to be reposed or given in or to him or them by the said indenture.”

On April 5, 1867, the settlor executed a deed-poll reciting the said settlement and that William Carr had never accepted the trusts or any of them, and that the settlor was desirous that the said intended settlement should not take or have any effect; the deed then proceeded: “Now know ye that he the said Montague Joseph Fielden doth hereby reclaim, withdraw, countermand, cancel, revoke, and make and declare imperfect, null and void, all and singular the trusts, powers, authorities, provisoes, agreements, and declarations therein respectively expressed, declared, or contained, as fully and entirely to all intents and purposes as if the said indenture had never been made or intended to be made.”

By mortgage of February 11, 1888, the settlor purported to convey some of the hereditaments comprised in the settlement of 1866 to the mortgagee to secure 300l. and interest at 4 per cent. This deed contained the usual personal covenant by the settlor for the payment of the principal sum secured and interest.

By an indenture of voluntary settlement of January 17, 1889, between Montague Joseph...

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16 cases
  • Motor Insurers Bureau of Ireland v Stanbridge and Others
    • Ireland
    • High Court
    • 8 December 2008
    ...& VOLUNTARY CONVEYANCES 3ED 1908 4 GLEESON v FEEHAN 1997 1 ILRM 522 HALSBURY'S LAWS OF ENGLAND 4ED VOL 50 PARA 442 MALLOT v WILSON 1903 2 CH 494 STRATTON'S DEED OF DISCLAIMER, IN RE; STRATTON & ORS v INLAND REVENUE CMRS 1957 2 AER 594 TOWNSON v TICKELL & ANOR 1819 3 B & ALD 31 PARADISE MOT......
  • Bank of Ireland and Others v Domvile
    • Ireland
    • High Court
    • 8 December 1956
    ...[1901] 1 I. R. 178. (12) 67 L. T. 135. (13) [1906] 1 I. R. 20. (14) [1914] 1 Ch. 618. (15) [1947] 1 Ch. 583. (16) I. R. 6 Eq. 232. (17) [1903] 2 Ch. 494. (18) [1936] 2 All E. R. (19) [1902] 1 K. B. 388. (1) 45 Ch. D. 629, at p. 631. (2) [1893] W. N. 99. (1) [1914] 1 Ch. 618. (1) 7 De G. M. ......
  • Attorney General v Parsons
    • United Kingdom
    • House of Lords
    • 19 December 1955
  • Nicola Suzanne Mackay v David Stuart Wesley
    • United Kingdom
    • Chancery Division
    • 18 May 2020
    ...“disclaimer” is itself indicative that pending the disclaimer the appointment is effective. There is authority for that proposition in Mallott v Wilson [1903] 2 Ch 494, per Byrne J at p.501. The position is analogous to a transfer of property where the transfer is effective even though the......
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1 books & journal articles
  • AT THE INTERSECTION OF PROPERTY AND INSOLVENCY: THE INSOLVENT COMPANY’S ENCUMBERED ASSETS
    • Singapore
    • Singapore Academy of Law Journal No. 2008, December 2008
    • 1 December 2008
    ...of the trustee is not usually relevant to the validity and nature of the trust and its associated obligations; see, eg, Mallott v Wilson[1903] 2 Ch 494. Indeed, the assets of a company, whether or not encumbered by a charge, would remain subject to the statutory trust even if they were to c......

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