Mill v Ashhurst
| Jurisdiction | England & Wales |
| Judgment Date | 15 March 1847 |
| Date | 15 March 1847 |
| Court | High Court of Chancery |
English Reports Citation: 68 E.R. 208
HIGH COURT OF CHANCERY
Affirmed 12 Jur. 1035.
[502] ashhurst v. mill. mill v. ashhuest. Marcfi 15, 1847; April \5, 27, Dec. 14, 1848. [Affirmed 12 Jur. 1035.] A sum of money was charged upon an estate as portions for younger children, according to the appointment of the parents, to take effect after their deaths; and the parents, in contemplation of the marriage of their daughter, and of a settlement which her intended husband proposed to make, appointed £5000, part of the sum so charged, to the daughter, in case the marriage should take effect. By a settlement of the same date a jointure was secured to the daughter by the husband. The marriage took place, and some years afterwards, the father being then dead, an arrangement was made for the sale of the estate, and for the investment in the funds of the sum necessary to provide for the portions. The money was accordingly raised and invested in the names, among others, of the daughter and her husband, and a declaration executed, in which the trusts of the stock purchased with the £5000 was declared to be (subject to the life interest of the mother) for the daughter absolutely. After the death of the father and mother and the husband the Court, at the suit of the representative of the husband, rectified the declaration of trust by declaring the £5000 to be the property of the husband, inasmuch as it did not appear that the husband intended to part with his interest in the fund, or do more than approve of the change of security; the declaration of trust omitting any recital of the settlement on the marriage, and it appearing from the letters which had passed between the solicitors of the parties, when the declaration was made, that neither of such solicitors was aware of that settlement, or of its effect as to the portion of the daughter. Variation of the effect of a deed, made for the purpose of carrying into effect a family arrangement, where it contained a declaration of right inconsistent with the actual rights of the parties, and there was no evidence that the inconsistency was known to or contemplated by the parties or their solicitors, or that their actual rights were intended to be altered. A sum of £10,000 was, by a settlement of July 1782, charged upon certain lands as portions for the younger children of Sir John Morshead and Dame Elizabeth, his wife, as the father and mother should by deed appoint, and subject to life interests in the father and mother ; a term of 1500 years in the lands was created to raise such sum. By a deed of appointment, of the 1st of January 1800, [503] between Sir John Morshead and Dame Elizabeth, his wife, of the first part, Selina, their daughter, of the second part, and Sir Charles Mill of the third part, reciting the settlement of 1782, an intended marriage between Sir Charles Mill and Selina, and that, in prospect thereof, Sir John and Lady Morshead had agreed to appoint £5000, part of the £10,000, for the portion of Selina, Sir John and Lady Morshead in pursuance of their power, and in consideration of the intended marriage, and of the settlement which Sir Charles Mill made upon the said Selina, thereby appointed that, in case the marriage should take effect, the said £5000 should, after their own deaths, be raised and paid to Selina. By the settlement on such marriage, which was dated also the 1st of January 1800, Sir Charles Mill, in consideration of the marriage, and of the said sum of £5000, the portion of Selina appointed by the other deed, granted to Selina and her assigns for her life, in case the marriage took effect and she should survive him, a rentcharge of £500 a year. After the marriage, in March 1804, Sir Charles Mill, having in right of his wife received a legacy of about £2500, granted to her a further rent-charge of £500 a year for her life, if she should survive him. 7 HAKE, 504. ASHHUBST V. MILL 209 Siu John and Lady Morshead had three children, Frederick, John and Selina. Sir John Morshead died in 1813, leaving Lady Morshead and the three children surviving. Upon his death the lands .comprised in the term of 1500 years became vested in Sir Frederick Morshead, his eldest son, for an estate of inheritance, subject to that term. Subsequently, by an agreement dated in May 1816, Lady Morshead and Sir Frederick agreed that the lands should be sold, and that, out of the proceeds of the sale, the £10,000 should be invested in the names of trustees for Lady Morshead for life, and, at [504] her death, for the parties entitled thereto. The lands were accordingly sold, and the £10,000 was paid to Mr. Hayes, of the firm of Messrs. Budd & Hayes, the solicitors of Sir Frederick and Lady Morshead, and was invested in £9539, 4s. lOd. Navy £5 per cent, stock, in the names of Sir Charles and Lady Mill, John Morshead and T. P. Hayes. The question in the cause arose upon an indenture, dated the 28th of August 1819, being a declaration of trust of the £9539, 4s. lOd. stock. This deed was made between Dame Elizabeth Morshead of the first part, Sir Charles Mill and Selina, his wife, of the second part, John Morshead of the third part, T. P.!Hayes of .the fourth part, Sir Frederick Morshead of the fifth part, and Edward Morshead and T. H. Budd of the sixth part. It recited the settlement of 1782, the appointment of January 1800, a subsequent appointment of the other £5000 to John Morshead, the death of Sir John Morshead, the agreement of May 1816 ; that administration to the last survivor of...
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