Sandeman v Mackenzie
| Jurisdiction | England & Wales |
| Judgment Date | 28 May 1861 |
| Date | 28 May 1861 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 889
HIGH COURT OF CHANCERY
S. C. 30 L. J. Ch. 838; 7 Jur. (N. S.) 1231; 5 L. T. 175. See Domvile v. Winnington, 1884, 26 Ch. D. 389; Shuttleworth v. Murray [1901], 1 Ch. 829.
Settlement. Construction. Younger Son. Confirmation.
[613] sandeman v. mackenzie. May 7, 23, 28, 1861. [S. C. 30 L. J. Ch. 838 ; 7 Jur. (N. S.) 1231; 5 L. T. 175, SeeDomvik v. Winnington, 1884, 26 Ch. D, 389; Shuttleworth v. Murray [1901], 1 Ch. 829.] Settlement. Construction. Younger Son. Confirmation. The rule, that a limitation in favour of younger children will not operate in favour of a younger child who becomes an eldest son and succeeds to the estates, is confined to cases where the provision is made by a parent or a person in loco parentis. Where, in a marriage settlement, the husband covenanted to pay ,10,000 for the children of the marriage; and, for want of such children, for the children of the wife by a former marriage (other than A. W., her eldest son) as the husband should appoint; and, in default, for all who should attain twenty-one, equally, or, if only one, then for such one younger child: Held, that the wife could not be considered as purchasing the provision in such a sense as to make her the settlor; and that the settlement was not by a perspn in loco parentis. In cases of provisions made by strangers, the time for ascertaining the class of younger children is in general the period of vesting, not the period of distribution as in settlements by parents. In order to make out a case of confirmation it is necessary to prove not only knowledge of the facts but of the rights flowing from them. On the 10th of June 1819 Sir Thomas Ramsay married Elizabeth Chisholm, who was then a widow with three children, viz., Alexander William, the head of the clan known as The Chisholm, on whom the Chisholm estates had devolved, Duncan, the second son, and Jemima, afterwards the wife of E. C. Batten. Mrs. Chisholm was 890 SANDEMAN V. MACKENZIE 1J. & H. 614. entitled, under her first marriage settlement, to a sum of 6000, and to jointure lands, part of the Chisholm estates. On the occasion of her second marriage a settlement was executed, [614] dated the 10th of June 1819, by which the sum of 6000 and the jointure lands were secured to the wife; and Sir Thomas Eamsay covenanted to pay to the trustees the sum of 10,000, upon trust to pay the interest to Sir Thomas Ramsay for life, and after his decease upon trust for Lady Ramsay for life, and after the decease of the survivor of them upon trust for the children of the said marriage as the said Sir Thomas Ramsay should appoint, and in default of appointment to them equally; and in default of children of the said marriage, " then upon trust to pay, transfer, or assign the trust funds unto all and every, or such one or more exclusively of the other or others of the then present children of the said Lady Ramsay (other than and excepting the said Alexander William Chisholm, her eldest son) as the said Sir Thomas Ramsay should direct or appoint; and for want of such direction or appointment, in trust for all and every the then present children of the said Lady Ramsay (other than and except as aforesaid) who should attain the age of twenty-one years, to be divided between and among such children (except as aforesaid), if more than one, in equal shares and proportions, and if there should be only one such child (except as aforesaid) then the whole of the said trust funds to be in trust for such one younger child ; and if none of the present younger children of the said Lady Ramsay should attain the age of twenty-one years, then the said trust moneys, stocks, funds, and securities to be in trust for him the said Alexander William Chisholm, his executors, administrators and assigns, for his and their own benefit." Two post-nuptial deeds were executed, dated respectively the 5th of July and the 30th of July 1819 : by the former of which certain other property was assigned by Sir Thomas Ramsay on the trusts of the settlement; and by the latter (to which Sir Thomas and Lady Ramsay and the trustees were parties) it was witnessed that Sir Thomas released [615] the 10,000 from his power of appointing among the children of Lady Ramsay by her former marriage; and it was agreed and declared by the trustees and the other parties thereto that the 10,000 (which had not then been paid) should be held, in default of children of the marriage, " upon trust for such one or more exclusively of the other or others of the then present children of the said Lady Ramsay by her former husband, as the said Lady Ramsay by deed or will should appoint, and for want of such appointment for all the then present children (other than and except as aforesaid) who should attain the age of twenty-one years, to be divided among such children (except as aforesaid), if more than one, in equal shares, and if but one, the whole to be in trust for such one younger child." In the year 1830 Sir Thomas Ramsay executed instruments purporting to revoke the deeds of the 5th and 30th of July 1819, and died on the 26th of June 1830. These instruments were ultimately declared void by the House of Lords, and the additional settlement of the 5th of July 1819 was sustained. There was no issue of Sir Thomas Ramsay ; and the three children of Lady Ramsay all attained twenty-one. In May 1837, the second son, Duncan (who was then of age), being desirous of purchasing a commission, Lady Ramsay executed an appointment in his favour, under the deed of July 30th, 1819, of 1560 consols, being part of the 10,000 fund, and also released her life interest therein. The trustees being advised that the power was not well created by the deed of July 30th, but that they could safely pay over the fund on obtaining a release from Lady Ramsay and her son Duncan, sold out the stock, and paid the proceeds to the son ; and a release was thereupon executed by Lady [616] Ramsay and her said son, dated the 22d of July 1837, which recited the ante-nuptial and post-nuptial settlements, the appointment by Lady Ramsay, and the payment to Duncan of the proceeds of the 1560 consols, and released the trustees from the said sum so sold out and paid as aforesaid. Alexander William, the eldest son, died in September 1838 ; and Duncan succeeded to the Chisholm estates and became the head of the clan. In 1843 Mrs. Batten was married, and by the settlement then made her moiety of the 10,000 was settled, Lady Ramsay joining and covenanting to pay an annuity equal to her life interest therein. Duncan Chisholm died a bachelor on the 8th of September 1858, his personal 1J. &H. 617. SANDEMAN V. MACKENZIE 891 estate having been previously vested in the Defendant, Mackenzie, as a trustee appointed under the Scotch Bankruptcy Act. Lady Ramsay died on the 7th of October 1859, having...
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