Re Joicey. Joicey v Elliot
| Jurisdiction | England & Wales |
| Date | 1915 |
| Court | Court of Appeal |
Will - Power of Appointment - Special Power - Delegation - Exercise - Invalidity.
A testator gave a sum of money to trustees upon trust to pay the income to his daughter for life and after her decease as to the principal in trust for her issue born in her lifetime “for such interests in such proportions and in such manner in all respects” as she should by deed or will appoint, and in default of appointment for all her children equally. The daughter, in exercise of the power, by her will appointed the trust fund among all her children who should survive her and being male attain twenty-one or being female attain that age or marry under it; and she declared that during the period of twenty-one years from her death the income of each child's share should be paid to the child, and if the child should die within the period of twenty-one years the child should have a power of appointment by will, and subject thereto in the event of the child leaving issue in trust for such child absolutely, but in the event of the child leaving no issue then the share was to go by way of accruer to the other shares. If the child should survive the period of twenty-one years the child was to take absolutely: “provided always that the said trustees” (of the testator's will) “shall (it and so far as I can authorise the same) have power from time to time or at any time during the said period of twenty-one years in their absolute discretion to transfer and make over the share or shares for the time being of the appointed funds of any son of mine who shall have attained the age of twenty-one years or any part of such share or shares to such son for his own use absolutely”:—
Held, that the power conferred upon the trustees by the proviso was an attempt to delegate the power given by the testator to his daughter and was therefore an invalid exercise of that power.
APPEAL from a decision of Joyce J.
John Joicey by his will dated August 6, 1879, after appointing the plaintiff, Lord Joicey, his brother Edward Joicey, and his widow to be his executors and trustees and devising certain real estate to the uses therein declared, bequeathed to each of three of his daughters Alice, Rose (afterwards Mrs. Elliot), and Eve Joicey the sum of 50,000l. to be held by his trustees upon the same trusts and subject to the same powers and provisions as were thereinafter expressed concerning such daughter's share of his residuary estate, and he devised and bequeathed his residuary real and personal estate to his trustees upon trust for sale, conversion, and investment and to stand possessed thereof in trust for all his children living at his death. And the testator declared that his trustees should invest each daughter's share and the legacy of 50,000l. and hold the same upon trust to pay the income thereof to such daughter during her life and after her decease then in trust for all or any of the issue of such daughter “for such interests in such proportions and in such manner in all respects” as she should by deed or will appoint, and in default of appointment in trust for the child if only one or for all the children equally if more than one of such daughter, and the testator empowered his trustees to apply the whole or any part of the income of any legacy thereby given or of the share of his residuary estate to which for the time being any infant legatee would if of the age of twenty-one years be absolutely entitled in possession for or towards the maintenance or education or otherwise for the benefit of such legatee during minority.
The testator died on August 15, 1881.
The plaintiff was now the sole surviving trustee of the will.
The testator's daughter Mrs. Elliot (hereinafter called “the testatrix”) by her will dated March 1, 1910, in exercise of the power of appointment given to her by her father's will appointed that the trust fund should after her death be held by the trustees of her father's will in trust for all or any of her children who should survive her and being male should attain twenty-one or being female should attain that age or marry under it, and if more than one in equal shares. And the testatrix directed that the share of the appointed funds to which any child of hers should become entitled under the appointment should be retained by the trustees of her father's will upon the following trusts: During the period of twenty-one years from her death to pay the income of such share to such child if he or she should so long live and in the case of a female for her separate use without power of anticipation during coverture. If such child should die within the said period of twenty-one years then the trustees...
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