Portland v Topham
| Jurisdiction | UK Non-devolved |
| Judgment Date | 07 April 1864 |
| Court | House of Lords |
| Date | 07 April 1864 |
English Reports Citation: 11 E.R. 1242
House of Lords
Mews' Dig. x. 1495. S.C. 34 L.J.Ch. 113; 10 Jur. N.S. 501; 10 L.T. 355; 12 W.R. 697; and, below, 31 Beav. 525; 1 De G. J. and S. 517. Commented on, as to execution of power, in Palmer v. Locke, 1880, 15 Ch.D. 299; and cf. also Thacker v Key, 1869, L.R 8 Eq. 415; Cooper v. Cooper, 1869, L.R. 5 Ch. 212; and Burdick v. Garrick, 1870, L.R. 5 Ch. 453.
Power - Appointment - Understood Reservation - Appointee, Concurrence of, Implied, but not Expressed.
st//; 13.3; gcA a_)3 The DUKE OF PORTLAND and Others,- Appellants ; LADY MAR! E. TOPHAM i and Others, - Respondents [April 6, 7, 18641. Applied. In re i L J H953i3Sw.L.R.98tMews' Dig. x. 1495. S.C. 34 L.J.Ch. 113; 10 Jur. N.S. 501; 10 L.T. 355; 12 W.R. ji 697; and, below, 31 Beav. 525; 1 De G. J. and S. 517. Commented on, as to (urton's settled '! execution of power, in Palmer v. Locke, 1880, 15 Ch.D. 299 ; and cf. also Thacker *ETi9SSi Ch n' v- KeV 1869 L-R- 8 E(l- 415; Cooper v. Cooper, 1869, L.R. 5 Ch. 212; and Burdick v. Garrick, 1870, L.R. 5 Ch. 453.] Power - Appointment - Understood Reservation - Appointee, Concurrence of, Implied, but not Expressed. / A power to be validly executed must be executed without any indirect object. ,' The donee of the power must give the property, which is the subject of it, as ! property, to the person to whom he affects to give it. A. created a power to appoint a fund between two of his daughters, H. and M., i or to appoint it to one, in exclusion of the other, and subject to such restrie- i tions, etc., as the donee of the power (A.'s son) might think fit. The donee of the power executed a deed of appointment, which in form gave the whole cf : the fund to one of the sisters, H., but it was understood between the parties that H. was only to receive one moiety of the fund for- her own use, and that slie was to allow the other to accumulate, subject to some future arrangement, and in pursuance of this understanding H. gave her brokers directions to invest, in the name of the donee of the power, of another brother, and of \ herself, one-half of the fund, and the interest thereon, to accumulate : 1 Held, that this was, in equity, a; fraudulent execution of the power, and that the I deed of appointment was wholly void. i The power authorised the donee to execute an appointment with or without a 1242 PORTLAND V. TOPHAM [1864] XI H.L.C., 33 power of revocation and new appointment. The deed of appointment did not reserve the right of revocation. The Lords while affirming the decree of the Court below, which declared the deed of appointment void, introduced into the Order the words " without prejudice to any question as to any future exer cise of the power of appointment," but refused to express any opinion whether any such future exercise of the power could be permitted. / This was an appeal against certain Orders of the Lords Justices. [33] The late Duke of Portland married, on 4th August 1795, a daughter of Major-General Scott, and on that marriage a settlement was executed by which, among other things, certain English estates of the Duke were charged with a sum of 40,000 for the younger children of the marriage, in such shares and proportions as the Duke and Duchess or the survivor should appoint, and in default of appoint ment, among the younger children, equally. A similar charge, with nearly similar powers of appointment, was created on the Scotch estates of the Duchess. On the 8th June 1814, a deed, with similar provisions, was executed, and was confirmed by a private Act of Parliament. There were nine children of the marriage. The eldest son died in 1824 unmarried, and the present Appellant, now Duke of Portland, be came then, as eldest surviving son, Marquis of Tichfield. Lady Caroline- Bentinck, one of the daughters, died in 1827. There were then seven children living, and on the marriage in that year of Lady Charlotte with Mr. Denison, one-seventh of the 4:0,000 charged on the English estates was appointed to be raised for her use, and was, in fact, paid in cash by the Duke, he taking an assignment of the seventh to him self as part of his personal estate. The same course was followed with respect to Lady Charlotte's seventh share of the 40,000 charged on the Scotch estates. On the marriage of Lady Lucy, in 1828, to Lord Howard de Walden, the same course was pursued, as to the charges on both the estates, in her favour. . Early in the year 1843, it came to the knowledge of the Duke that his youngest ; daughter, Lady Mary Bentinck, had entertained proposals of marriage from Colonel j (now Sir William.) Topham. His Grace did not think fit to approve of the match, ; and strongly expressed [34] his opinion, threatening that he would, so far as he, had .' the power, leave away everything from. Lady Mary. Her Ladyship promised not to ; marry in the'TTuFe's lifetime. j On the 24th June 1843, an indenture was executed between the Duke of Portland of the first part, the then Marquis of Tichfield (now Duke of Portland, and Appellant), Lord George Bentinck and Lord Henry Bentinck, of the other part, by which the Duke covenanted with the Marquis, Lord George, and Lord Henry, to transfer a sum of 52,000 Three per Cent. Consols, into their names; and it was declared that the Marquis, Lord George, and Lord Henry, should stand possessed of the said sum of 52,000 upon trust, to invest the dividends during the life'of the Duke, and after his decease the said trust fund and all accumulations should be held by them on trust for Lady Harriet Bentinck and Lady Mary Bentinck (the two surviving unmarried daughters), or for one of them exclusively, if the other should be living at the time of the appointment thereinafter mentioned (or the issue, etc.), in such parts, shares, and proportions, and for and with such limitations in favour of one or more of them, and either by way of legacy, portion, present or remote interest, or otherwise, and to vest and be payable, etc., at such time or times, age or ages, and upon such contingencies, and under and subject to such directions and regulations for maintenance, education and advancement, and such conditions and restrictions as the Duke during his life, or, after his decease, the person who during the live of the said Lady Harriet and Lady Mary, or the survivor of them, should be Duke of Portland, from time to time, by any deed, etc., should appoint. And in default of and until such appointment upon trust, during the joint lives of Lady Harriet and Lady Mary, [35] to pay the dividends to them as tenants in common for their respective absolute use and benefit; and after the decease of either, to pay the whole of the dividends to the survivor for life; and Brfter the decease of the survivor, the trust fund and dividends were to go to such person asi should then be Duke of Portland. In fact, 50,000 of this sum had been invested on mortgage; the rest was invested in the Three and a quarter per Cent. Consols. By an indenture of 29th June 1843, between the Duchess of the first part, the 1243 XI H.L.C., 36 PORTLAND V. TOPHAM [1864] late Duke of the second part, the then Marquis of Tichfield (the now Duke and Appellant) and Lord George Bentinck of the third part, three sums of stock, amounting to 23,343, Three and a half per Cent. Consols, and a sum of 9000, due on a bond of the Duke, all of -which were stated to be subject to the disposition of the Duchess, were assigned to the then Marquis of Tichfield and Lord George as trustees, in trust to pay the dividends and interest to the Duchess for her life, and afte? her death to set apart so much of the trust fund as, at 3 per cent., -would realise 800 per annum on the trusts thereinafter declared, and subject thereto absolutely to Lord Henry, or if he should die in the lifetime of the Duchess, to Lord George Bentinck absolutely ; and as to the fund so set apart to produce the 800 per annum, to be held upon trust during the life of Lady Mary Bentinck, and provided the Duke during his life, or, after his1 decease, the person who should for the time being, during the life of Lady Mary, be Duke of Portland, by any deed, etc., either with or without power of revocation and new appointment, etc., should so direct or appoint, but not otherwise, to pay an annual sum not exceeding 800 out of the dividends for the benefit of Lady Mary for life, in such manner, etc., as should be expressed in such appoint^[36]-ment, and subject to such trust and power to stand possessed of the same for Lord Henry, and in case he should die during the life of the Duchess, for Lord George. The Duchess of Portland died in 1844, on which event a part of the principal sum was paid to Lord Henry absolutely, and the rest, producing 800 a year, continued invested as a trust fund. The sum of 800 arising from this trust fund had been regularly received by Lord Henry, but not for his own use, nor had he paid it over to Lady Mary, but his bankers, under his order, dated September 1844, had regularly invested "it in the purchase of consols. By a memorandum of that date, he acknowledged that he was possessed of the fund " during the life of my sister, Lady Mary, in trust for her, as my father, or the Duke of Portland for the time being, may direct. In case of no such direction, the investments are to belong to me absolutely." Lord George Bentinck died early in the autumn of 1848. His death reduced the number of younger children of the Duke then living to five. Of these Lady Harriet and Lady Mary were unmarried. The Duke then desired to divide the two sums of 40,000 equally among them. He proposed to give a sum of 2666 13s. 4d. between his two married daughters, which would bring their respective shares, charged on the two estates, to 16,000 each, and then to divide the remaining 24,000 into three parts, one to be given to Lady Harriet, one to Lord Henry for...
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