Routledge v Dorril
| Jurisdiction | England & Wales |
| Judgment Date | 17 July 1794 |
| Date | 17 July 1794 |
| Court | High Court of Chancery |
English Reports Citation: 30 E.R. 671
HIGH COURT OF CHANCERY
See Leake v. Robinson, 1817, 2 Mer. 391; Monypeny v. Dering, 1852, 2 De G. M. & G. 174; Birley v. Birley, 1858, 25 Beav. 307-27 L. J. Ch. 572; Williamson v. Farwell, 1887, 35 Ch. D. 134; In re Abbott, Peacock v. Frigout, [1893] 1 Ch. 57.
eoutledge v. dorbil. July iTth, 1794. Bolls. [See Leake v. Robinson, 1817, 2 Mer. 391; Monypeny v. Dering, 1852, 2 De G. M. & G. 174; Birley v. ~ Birley, 1858, 25 Beav. 307-27 L. J. Ch. 572; Williamson v. Farwell, 1887, 35 Ch. D. 134 ; In re Abbott, Peacock v. Frigout, [1893] 1 Ch. 57.] Personal estate settled on marriage for the husband for life, then for the wife for life, then to and among all and every the children and grand-children, or issue, in such shares, under such restrictions, at such times, and in such manner, as they or the survivor should appoint by deed or deeds or by will; for want of appointment to all and every the children and grand-children, or issue, living at the decease of the survivor, equally, payable at 21 or marriage; if but one, to that one; provided that in case of no appointment the issue of any children dead should not have a greater share than their parents would have had : issue only are within the power; but in any degree : but an appointment to any issue not living must be restrained to 21 years after lives in being at the creation of the power ; otherwise it is void, even as to such as come in esse within those limits : but on marriage of a daughter interests may be given to her children, generally, and to the husband. What is ill appointed goes as in default of appointment: but children of a living parent cannot take under the proviso. The doctrine of cy pres does not apply to personal estate; therefore where under a power to appoint personal estate to children or issue an appointment is made to a son for life, then among all his children, if none, to him, his executors, &c., the limitation to his children being void, because not restrained within the legal bounds, cannot be made good cy pres. Preceding limitations under an appointment being void, subsequent limitations, though within the power, cannot be accelerated; and are void also; though the objects of the prior limitations never come in esse. An unborn child of a person in esse may be made tenant for life, if beyond that the absolute interest is disposed of. On the marriage of Richard Dorril and Elizabeth Harcourt, one moiety of the manor of Nutting Barnes and other premises at Kensington, and one moiety of £2150 Old South Sea Annuities were conveyed and assigned on trust to be sold; and that the produce with £5500 Bank Annuities transferred by Richard Dorril to the same trustees, should be possessed by them on trust as to the Bank Annuities for the husband for life ; after his decease for the wife for life ; and after the decease of the survivor, if there should be any issue of the marriage, to pay, divide, and distribute, assign, or transfer, the said trust premises, or the [358] securities, unto and among all and every the children, and grand-children, or issue, of the said intended marriage, if there should be more than one, in such shares and proportions, and under such restrictions, limitations, and conditions, and at such time and times, and in such manner and form, as Richard and Elizabeth Dorril by any deed or deeds, writing or writings, to be by them duly executed in presence of two or more credible witnesses should from time to time, or .at any time or times during their joint lives, direct and appoint; and for want of such appointment, unto and among all and every the children, and grandchildren, or issue, of the intended marriage, if more than one, in such shares and pro- 672 ROUTLEDGE V. DORRIL 2 VES. JUN. 359. portions, and under such restrictions, limitations and conditions, and at such time and times, and in such manner and form, as the survivor should from time to time, or at any time or times, by any deed or deeds, writing or writings, executed as aforesaid, or by his or her last will and testament, give, declare, direct, or appoint; and for want of such appointment, for all and every the children, and grand-children, or issue, of the marriage, if more than one, which should be living at the decease of the survivor, equally to be divided among them, share and share alike; payable to the sons at twenty-one ; to the daughters at twenty-one or marriage ; provided, that in case of no appointment by Richard and Elizabeth Dorril, or the survivor, the issue of any child or children dead should not have any greater or other share, than the parent or parents of such children or issue, if living, would have been entitled to; and if there should be but one child living at the decease of the survivor, for such only child, with power for maintenance and education of the children or issue of the marriage in case of no appointment; and as to the produce of the said moiety of the manor, &c., and of the moiety of the South Sea Annuities, to lay out the same in some of the public funds, upon the same trusts, for the same purposes, and subject to the same powers, applications, restrictions, and agreements ; and in case of no child or issue of the marriage, or the decease of all before time for payment, upon other trusts. The estates at Kensington were sold; and a moiety of the produce was invested in the purchase of £3500 3 per cent. Bank Annuities upon the trusts of the settlement. The £1075 a moiety of the £2150 South Sea Annuities was not transferred under the settlement; but remained vested in the original trustees. [359] Richard Dorril died in 1762 before any appointment, leaving his widow and four children by her, Richard, Elizabeth, Frances, and Mary, surviving. In 1775, £300 part of the £5500 Bank Annuities, was at the request of the widow, sold and .applied in the advancement and for the use of Frances Dorril. In 1776 in consideration of the marriage of John Edwards and Elisabeth Dorril the younger, her mother by the marriage settlement, executed according to her power, appointed £500 part of the £3500 Bank Annuities to her daughter Elisabeth immediately on her marriage, as part' of her share in the same, to the intent, that her husband might receive the same and the dividends to his own use; and in consideration of the marriage, and to make some provision for John Edwards and Elizabeth Dorril and their issue, Elizabeth the elder by virtue of her power appointed £1000 other part of the said £3500 Bank Annuities to her daughter Elizabeth immediately after the decease of the mother to be transferred to trustees upon trust for John Edwards for life, in case he should survive Elizabeth Dorril the elder; and after his decease for his wife for life, in case she should survive him; and after the decease of the survivor for all and every the child and children of the marriage in such shares and proportions, manner and form, upon such conditions, with such restrictions, and at such time and times, as John and Elizabeth Edwards or the survivor should appoint; in default of appointment, equally, with survivorship ; and if there should be no children, or all should die, before they should be entitled, for the survivor of John and Elizabeth Edwards,...
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