Rowley v Rowley
| Jurisdiction | England & Wales |
| Judgment Date | 14 January 1854 |
| Date | 14 January 1854 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 103
HIGH COURT OF CHANCERY
S. C. 23 L. J. Ch. 275; 18 Jur. 306. See Bulteel v. Plummer, 1869-70, L. R. 8 Eq. 593; L. R. 6 Ch. 160; Whelan v. Palmer, 1888, 39 Ch. D. 648; Saunders v. Shafto [1905], 1 Ch. 134.
Escrow. Evidence. Appointments of Portions to Children. Fraud on the Power.
EAT, 242. EOWLEY V. ROWLEY 103 [242] eowley v. eowley. Jan. 13, 14, 1854. [S. C. 23 L. J. Oh. 275; 18 Jur. 306. See Suited v. Plummer, 1869-70, L. E. 8 Eq. 593; L. E. 6 Ch. 160; Whelan v. Palmer, 1888, 39 Ch. D. 648; Saunders v. Shafto [1905], 1 Ch. 134.] Escrow. Evidence. Appointments of Portions to Children. Fraud on the Power. Deeds of appointment of a sum of 30,000 for younger children's portions having been properly executed, and being found in the custody of the family solicitor: Held, that the onus was thrown upon the party disputing them to prove their invalidity as escrows. A husband and wife lived apart, and the wife had the care of one of their two younger children. The husband being desirous of raising money by mortgage of his settled estates, and being unable to do so on account of the existing charges thereon, applied to the wife to postpone her pin-money and jointure annuities to his proposed mortgages. The wife consented, provided that the husband would exercise a power of appointment which he had over a sum of 30,000 in favour of his younger children, to the extent of appointing 5000 to the child under her care. He accordingly did so by a revocable deed; and by a similar deed, dated the next day, reciting the former appointment, he appointed the rest of the fund to his only other younger child. The former deed only was communicated to the wife, and, she objecting to the power of revocation, it was cancelled, and a new irrevocable deed was prepared and executed of the same date as the former. The husband died before the mortgage which he proposed to make was effected. On an attempt being made to prove that the deeds were given to the family solicitor as escrows, not to take effect until the mortgage transaction was completed : Held, that though a priori it was probable that the appointment of the 5000 might have been so made, there was not the same probability as to the other appointment of the 25,000; and although a purchaser in the position of the wife would not have expected to have the deed of appointment of the 5000 delivered to him until the consideration was paid, that rule would not apply to the case of a mother seeking the benefit of one of her children by inducing the father to exercise a power of appointment in the child's favour ; and the evidence of the solicitor who prepared the deeds to the effect that they were delivered to him as escrows being unsupported by any other witness, being given fourteen years after the transaction, not very exactly, and being entirely contradicted by his conduct at the time of their execution, and subsequently it was discredited, and the deeds were considered to have been duly sealed and delivered. Held, also, that although the bribe to the husband would affect the validity of the appointment of the 5000, yet that the appointment of the 25,000 was not so connected with the former appointment as to be also invalid; nor indeed was the motive for the latter appointment the same as in the former case, for, instead of being an inducement to the wife to consent to the proposed arrangement, the second appointment, if revealed to her, would probably have prevented her concurring in postponing her pin-money and jointure. If a power of jointure be exercised on a corrupt bargain for some benefit to be given to the husband, the fraud being only upon the donor of the power, the Court will sever the appointment, and hold it to be good so far as it is for the benefit of the jointress, and bad as to the rest. But although, under a power of distribution among children, the fund is to be considered as a gross fund, to be fairly apportioned among all the objects; yet the donee, by appointing one share corruptly, has only to that extent diminished the common fund; and the Court will not, on that account, in consideration of the rights of the objects of the power, hold the whole to be invalid. This was a suit by the Hon. Hugh Eowley, an infant, against his brother, the Hon. Hercules Eowley, and others, praying that it might be declared that certain 10 4 ROWLEY V. ROWLEY KAY, 213. deeds of appointment, dated the 22d and 23d of January 1839, were void as an execu tion of a power of, appointment over a sum of ,30,000, and that they might be delivered up to be cancelled; and that the rights and interests of the said [243] Plaintiff and Defendant in the said sum and the interest thereof might be ascertained and declared. : . By certain indentures of lease and of release and appointment, bearing date respectively the 16th and 17th days of February 1821, the indenture of release and appointment being made between the Bight Hon. Clotworthy, then Lord Langford, since deceased, and the Eight Hon. Frances Lady Langford, his wife, and the Hon. Hercules Langford Eowley, afterwards Lord Langford, also since deceased, of the first part; William Disney and Abraham Henry Chambers the elder of the second part; William Gosling arid Abraham Henry Chambers the younger of the third part; and Chambers Ponsonby and the Eight Hon. Arthur James Plunket, now Earl Fingall, of the fourth part: the said Clotwortby Lord Langford and Frances Lady Langford, his wife, and Hercules Langford Eowley, for the considerations and by virtue and in exercise of the power therein mentioned, appointed, conveyed and assured unto the said William Disney and Abraham Henry Chambers the elder certain hereditaments therein described, situated in the county of Meath, in Ireland, with certain other hereditaments and the appurtenances : to hold the same hereditaments and premises, subject to the several charges therein mentioned, unto the said William Disney and Abraham Henry Chambers the elder, their heirs and assigns, to the use of the said Chambers Ponsonby and Arthur James Plunket, now Earl Fingall, their executors, administrators and assigns,'for and during and unto the full term of 1600 years, to commence from the date of the said indenture of release and appointment, upon trust, in case there should be two or more children of Hercules Langford Eowley, afterwards Lord Langford, other than and not being any of them an eldest or only son, to raise the sum of 30,000 for the portions of such two or more children; the said sum of 30,000 to be shared and divid-[244]-ed between or amongst such children not being an eldest or only son, in such parts or proportions, and to vest in and be paid to such children respectively at or upon such ages, days or times, and to be subject to such provisoes, charges and limitations, for the benefit of some or one of the said children, and in such manner as the said Hercules Langford Eowley, afterwards Hercules Lord Langford, by any deed or deeds, instrument or instruments in writing, with or without power of revocation and new appointment, to be by him sealed and delivered in the presence of and attested by two or more credible witnesses, or by his last will and testament in writing, or by any codicil or codicils thereto, to be signed and attested by three or more credible witnesses, should direct or appoint; and, in default of such direction or appointment, to be equally divided between and amongst such children other than or not being an eldest or only son, share and share alike, the share or respective shares of such of the said children as should be a younger son or sons to become' a vested interest or vested interests in him or them respectively at his or their age or respective ages of twenty-one years; and the share or respective shares of such of them as should be a daughter or daughters to become a vested interest or vested interests in her or them respectively at her or their age or respective ages of twenty-one years, or day or respective days of marriage, which should first happen, and to be paid and payable at or upon such ages, days or times accordingly, in ease the same should happen after the decease of the survivor of them, the said Clotworthy Lord Langford and Hercules Langford Eowley, afterwards Hercules Lord Langford; but if the same should happen in their lifetime, or in the lifetime of the survivor of them, then the same should be paid immediately after the decease of such survivor, unless the said Clotworthy Lord Langford and Hercules Langford Eowley, afterwards Hercules Lord Langford, or the survivor of them, should, [245] by writing, under their or his hands and seals or hand and seal, direct that the same should be raised and paid in their or his lifetime. And it was thereby agreed and declared, between and by the said parties thereto, that in case any appointment should be made in pursuance of the powers aforesaid, or either of them, which should only extend to a part or parts of the sum or sums thereby intended for the portion or portions of such child or children of the body of the said Hercules Langford Eowley, afterwards Lord Langford, on the body of his then present or anyiutufe wife or wives to be begotten, KAY, 246. ROWLEY V'. KOWEEY 105 other than or not being an eldest" or only son, such appointment should be valid arid effectual, notwithstanding the non-appointment of the remaining part or parts of such portion or portions; but, in that ease, such child entitled to a portion or share under such appointment should be entitled to no further share of or in the remaining or unapportioned part or, parts of the moneys thereby intended for portions as aforesaid, until he or she should have brought his or her appointed share into hotchpot, and should have accounted for the same accordingly, and unless the said Hercules Langford Eowley, afterwards Hercules Langford: Lord Langford, should declare a contrary intention in writing...
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