Pomfret v Perring
| Jurisdiction | England & Wales |
| Judgment Date | 21 November 1854 |
| Date | 21 November 1854 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 1071
BEFORE THE LORDS JUSTICES.
S. C. 3 Eq. R. 145; 24 L. J. Ch. 187; 1 Jur. (N. S.), 173; 3 W. R. 81. See In re Jones, 1886, 34 Ch. D. 68; Charles v. Burke, 1888, 60 L. T. 381; In re Wells' Trusts, 1889, 42 Ch. D. 654. Considered, In re Brace [1891], 2 Ch. 671.
[775] pomfret v. peering. Before the Lords Justices. Nov. 21, 1854. f" "' /9^'^ [S. C. 3 Eq. R. 145 ; 24 L. J. Ch. 187 ; 1 Jur. (N. S.), 173 ; 3 W. R. 81. See In re Janes, 1886, 34 Ch. D. 68; Charles v. Burke, 1888, 60 L. T. 381; In re Wells' Trusts, 1889, 42 Ch. D. 654. Considered, In re Brace [1891], 2 Ch. 671.] An appointment expressed to be made in exercise of every power enabling the appointor, does not extend to property which the appointor cannot appoint without the exercise of a power of revocation, if there be other property to which the appointment can apply. Therefore, where the donee of a power under a settlement to be exercised by deed or will, partially exercised it by deed, reserving a power of revocation, and afterwards -by her will, by virtue of every power contained in the settlement, or " otherwise ^ howsoever," appointed all the real and personal estate which under the settlement,""" -or otherwise, she had power to appoint: Held, that the will operated on the unappointed part only, and was not an exercise of the power of revocation and new appointment. This was an appeal from a part of a decree of the Master of the Rolls, deciding that a testamentary appointment affected funds already appointed, subject to a power of revocation and new appointment. The case is reported below, in the 18th Volume of Mr. Beavan's Reports (page 618). The following statement will be found sufficient to explain the point decided upon the appeal. By a settlement, dated the 30th of April 1799, and made on the marriage of Philip Perring and Sarah Jackson, two sums of 2000 and 3000 stock were settled in trust, after the death of the survivor of the intended husband and wife, for all and every or such one or more of the children of the marriage, as the intended husband . should by deed or will appoint, and in default of such appointment, as the intended wife, if she should be the survivor, should by deed or will appoint; and in default of appointment for the benefit of the children of the marriage, as therein mentioned. The settlement contained a covenant that as soon as a sum of 1500, secured by a covenant of the intended wife's father, should be laid out in land, such land should be re-limited to uses conferring a life-estate in the intended husband, with remainder to the intended wife for life, with remainder to the children, as the husband should appoint, and, in default of such appointment, as the wife, if she [776] should survive, should appoint. There were also covenants by the father of the intended wife, and by the husband, for payment of 700 and 5000 respectively after their respective deceases, and declarations of trust subjecting those sums to a power of appointment in the wife if she survived the husband, similar to the power with respect to the 2000 and 3000. By his will, dated 13th of November 1835, Thomas Jackson (the father of Mrs. Perring), after giving certain legacies, devised and bequeathed all his real and the 1072 POMFRET V. PERRING S DE 0. M. to Q. 777. residue of hia personal estate to trustees, in trust to sell and convert, and invest the produce in the public stocks or funds or Government or real securities, and pay the dividends and interest thereof, and the income of his real and personal estate till converted, to his daughter Mrs. Perring for life, for her separate use, without power of anticipation; and after her decease, to divide the capital among such of her children, and the issue of any child or children, in such shares, and subject to such limitations over, and with or without power of revocation, as she should by deed or will appoint; and in default of appointment, and as to so much of the trust funds, and of the beneficial interest therein, whereof no such appointment should be made, in trust for all the children of Mrs. Perring, share and share alike. Mr. Perring died without executing the power, and afterwards, on the 15th of November 1847, Mrs. Perring executed a deed-poll, whereby, after reciting the will of her father, and the marriage of her youngest child Blanche with Edward Butler, and that no settlement had been executed on the marriage, she appointed one-fifth part of the residuary property under the will of her father, over which his will gave her a power of appointment, to Mrs. Butler for life, for her separate use, with-[777]-out power of anticipation, and after her decease for the benefit of her children as therein mentioned; and if there should be no issue of Mrs. Butler living at Mrs. Butler's decease, then she appointed the said fifth part in trust for the children of her son Jackson Perring deceased, and her other three then surviving children. The deed also contained a proviso that in case Mrs. Perring should not thereafter direct to the contrary, Mrs. Butler or her issue should not be entitled to any further share of the residuary property under Mr. Jackson's will; Mrs. Perring thereby declaring her intention to be that the other four-fifths, over which she had not exercised her power of appointment, should after her decease devolve equally upon her children Charles Perring, Claude Perring and Ellen (Toodehild, or their respective representatives, and the personal representative of Jackson Perring, such last-mentioned representative taking the share only which the said Jackson Perring would have taken had he been living. And Mrs. Perring thereby reserved to herself a power of revoking, by deed or will, the appointment of the one-fifth thereby made,_ and to make any other direction or appointment or disposition of the same. By a deed of the 86h of May 1852, it was declared that the lands, to be purchased with the 1500, mentioned in the settlement of 1799 should be conveyed to the uses declared by that settlement, or such of them as were then subsisting. In 1849 Claude Perring died without having been married. Mrs. Perring made her will, dated the 10th of May 1852, as follows :- " I give, devise and bequeath, and by virtue of every [778] power or authority whatsoever by an indenture bearing date oh or about the 30th day of April 1799," &c., "and by an indenture dated the 8th day of this present month, or either of such indentures, given or limited to me, or otherwise howsoever enabling mev do by this my will direct, limit and appoint all and singular the stock, sums of money, messuages, hereditaments and real and personal estate whatsoever, which I may at my decease be possessed of or entitled to, or, under or by virtue of the powers contained in the said indenture of settlement or otherwise, have power to appoint, save and except the sum of 20, part of the sum of 5000, in the said indenture of settlement covenanted to be paid (which I expressly allow to devolve unappointed by me), in manner following...
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