Re Cohen. Brookes v Cohen
| Jurisdiction | England & Wales |
| Date | 1911 |
| Year | 1911 |
| Court | Chancery Division |
Power of Appointment - Exercise - Special Power - Appointment to Object of Power - Condition to pay Appointor's Debts - Purpose foreign to Power - Fraud on Power - Invalidity.
The donee of a special power to appoint his share under his father's will to his wife and children, in exercise of the power, appointed an annuity of 1200l. to his wife, and in case his residuary estate should be insufficient to pay his just debts he directed that the trustees of his father's will should pay to his wife an additional annuity of 500l. so long as any of his debts should remain unpaid or for a period of ten years from his death, whichever should be the shorter period, on condition that, and so long as, she should expend the sum of 400l. in every year in the payment of his debts; and after the debts should have been fully paid by her or after the expiration of ten years from his death, whichever should be the shorter period, to pay to her, if she should have fulfilled the condition, instead of the said additional annuity of 500l., an additional annuity of 100l. for the remainder of her life, and subject thereto he appointed the trust funds to his children:—
Held, that the condition could not fairly be separated from the appointment, and that the execution of the power was fraudulent and void as having been made for a purpose wholly foreign to the power. The appointment of the additional annuities was therefore bad.
ADJOURNED SUMMONS.
Under the will of his father, A. Cohen, S. B. Cohen was entitled for his life to three eleventh shares of certain property producing a yearly income of 11,000l., and the will directed that after the death of S. B. Cohen the trustees should hold his share and the income thereof in trust for all his children as he should by will or deed appoint, and in default of appointment in trust for his children equally.
The will further provided that it should be lawful for the said S. B. Cohen to appoint by will that from and after his decease the whole or any part of the income of his said share should be paid to any wife who might survive him for her life or any less period, and the interest so appointed unto or for the benefit of such surviving wife should take effect in priority to the trusts thereinbefore declared concerning his share to take effect after his death.
A. Cohen died in 1901.
S. B. Cohen by his will, dated in 1908, in exercise of the power under his father's will, appointed and declared that the trustees of the will of A. Cohen should stand possessed of his share under the will upon trust to pay an annuity of 1200l. to his wife during widowhood, to be reduced to 600l. per annum in the event of her marrying again, and further to pay to her an additional annual sum of 100l. for the maintenance of each of his children until they attained the age of twenty-one or married under that age. And he further appointed, in case his residuary estate should be insufficient to pay his just debts, that the said trustees should pay to...
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