The Earl and Countess of Glengall, - Appellants; Lady Edward Thynne, and Others, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 21 August 1848 |
| Date | 21 August 1848 |
| Court | House of Lords |
English Reports Citation: 9 E.R. 1042
House of Lords
Mews' Dig. x. 1299; xii. 788, 1083; xv. 1565, 1575. S.C. 12 Jur. 805; and below, sub nom. Glengall v. Barnard, 1 Keen, 769; 6 L.J. Ch. 25. On question as to portions, discussed in Campbell v. Campbell, 1866, L.R. 1 Eq. 387; Chichester v. Coventry, 1867, L.R. 2 H.L. 83; Russell v. St. Aubyn, 1876, 2 Ch. D. 405. On point as to Statute of Frauds, see Murphy v. Boese, 1875, L.R. 10 Ex. 131.
Portion - Debt - Bequest of Residue - Satisfaction - Marriage - Incomplete Agreement - Part - performance.
II H.L.C., 131 THYNNE (LADY) V. GLENGALL (EARL OF) [1848] [131] LADY EDWARD THYNNE (by next Friend),-Appellant; THE EARL OF GLENGALL and the COUNTESS his Wife, and Others,-Respondents. and THE EARL AND1 COUNTESS OF GLENGALL,-Appellants; LADY EDWARD THYNNE, and Others,-Respondents [April 26, 27, and 29, 1847, August 21, 1848]. [Mews' Dig. x. 1299 ; xii. 788, 1083 ; xv. 1565, 1575. S.C. 12 Jur. 805 ; and below, sub nom. Glengall v. Barnard, 1 Keen, 769; 6 L.J. Ch. 25. On question as to portions, discussed in Campbell v. Campbell, 1866, L.R. 1 Eq. 387; Chichester v. Coventry, 1867, L.R. 2 H.L. 83 ; Russell v. St. Aubyn, 1876, 2 Ch. D. 405. On point as to Statute of Frauds, see Murphy v. Boese, 1875, L.R. 10 Ex. 131.] Portion-Debt-Bequest of Residue-Satisfaction-Marriage-Incomplete Agreement-Part-performance. A father having, upon the marriage of his daughter, agreed to give her a portion of 100,000, transferred one-third part thereof in stock to the four trustees of the marriage settlement, and gave them his bond for transfer of the remainder in like stock upon his death, the latter stock to be held by them on trust for the daughter's separate use for life, and after her death for the children of the marriage, as the husband and she should jointly appoint. The father afterwards by his will gave to two of the trustees a moiety of the residue of his personal estate, in trust for the daughter's separate use for life, remainder for her children generally as she should by deed or will appoint: Held, that the moiety of the residue given by the will was in satisfaction of the sum of stock secured by the bond, notwithstanding the differences of the trusts; and, it being found to be for the benefit of the daughter and her children, if any she should have, to take under the will, she was bound to elect so to take. (Vide post, 153-4.) A father having agreed to settle a certain sum for the benefit of his daughter and the children of her intended marriage with Lord G., a memorandum of the terms of the settlement was by his direction written by his solicitor, and approved of by him and Lord G., and he gave the solicitor instructions to prepare such settlement, but died before the same was ready for execution, having by his will given the daughter real estates and a moiety of the residue of his personal estate. Lord G. married the daughter, and performed his part of the settlement, in conformity to the written memorandum : Held, that1 the memorandum was not a complete agreement, binding within the Statute of Frauds; and of an incomplete agreement there cannot be part-performance. These appeals were brought against a decree and orders of the Master of the Rolls. (See 1 Keen, 769-in p. 771 the trusts are not correctly stated). [132] The appellant in the first appeal is one of the two daughters and only children of the late William Mellish. On her marriage with Lord Edward Thynne, on the 8th of July, 1830, her father, in pursuance of a previous agreement, transferred to the names of the trustees of the marriage settlement 33,333 6s. 8d. 3 per cent, consolidated Bank Annuities, and executed a bond to secure to them payment of an annuity of 2000 during his life, and the transfer to them by his heirs, .executors, etc., on his death, of 66,666 13s. 4d., like Bank Annuities, if his said daughter, or any child of the said marriage, should be then living. The trusts of these different sums were by the indentures of settlement declared to be: - As to the 33,333 6s. 8d., that the trustees should pay the interest, dividends, and annual income thereof, to Lord Edward Thynne during his life, and after his decease to the appellant for her life, and after the decease of the survivor of them, should apply the said Bank Annuities for the benefit of the child or children of the marriage, as Lord Edward Thynne and the appellant jointly, or the survivor of 1042 thynne (lady) v. glengall (barl of) [1848] n h.l.c., 133 them alone, should appoint, and, in default of appointment, then that the said trust fund should remain on trust for the child or children of the marriage, as in the settlement mentioned. And, as to the annuity of 2000 and the sum of 66,666 13s. 4d. Bank Annuities, that the trustees should compel payment of the former, and on the decease of the obligor, in case the appellant or any child of the marriage should be then living, compel the transfer of the latter sum, and should stand possessed of each, on trust during the joint lives of Lord Edward Thynne and the appellant, to pay the annuity during the life of William Hellish, and, after his decease, the [133] interest, dividends, and annual income of the 66,666 13s. 4d., as the appellant should, without anticipation, direct, and in default of such direction, to herself, for her separate use; and after the decease of Lord Edward Thynne, if he should die in the lifetime of the appellant, then to her and her assigns during her life: And after her decease, that the annuity and the said sum of Bank Annuities and the dividends thereof, whether Lord Edward Thynne should be then living or not, should remain and be on trust for the child or children of the marriage,-who, being a son or sons, should attain the age of twenty-one years, or being a daughter or daughters, should attain that age or marry under it, with consent,-as Lord Edward Thynne and the appellant should, during their joint lives, by deed appoint; and in default of appointment, if there should be but one child of the marriage, who, being a son, should attain the age of twenty-one, or, being a daughter, should attain that age or marry under it with consent, in trust for such child, his or her executors, etc.; and if there should be two or more children who should attain the said age, or being daughters should marry under it with consent, in trust for all such children, in equal shares as tenants in common, to be interests vested in a son or sons at the age of twenty-one, and in a daughter or daughters at that age, or marriage under it with consent, as in the indentures mentioned. And it was by the settlement declared that, if there should be no child of the marriage, or none who should live to acquire a vested interest in the trust funds, then the 33,333 6s. 8d. Bank Annuities, after the decease of the survivor of Lord Edward Thynne and the appellant; and the annuity of 2000 and the 66,666 13s. 4d. Bank Annuities, from and immediately after the de-[134]-cease of the appellant, and such failure of issue as aforesaid, and whether Lord Edward Thynne should be then living or not; should remain in trust for William Mellish, his executors, administrators, and assigns, for his and their absolute use. William Mellish, by his will, dated November 1833, gave all his real estate to William Astell and Benjamin Barnard, two of the four trustees of the appellant's marriage settlement, upon trust, as to certain parts thereof in the will described, to pay the rents to the appellant for her separate use, for life, without anticipation ; remainder to her first and other sons in tail, in strict settlement; remainder to her daughters as tenants in common in tail, with cross remainders among them in tail; remainder to the testator's other daughter, Margarett Lauretta Mellish (now Countess of Glengall, one of the respondents), for her life, for her separate use, in the same manner as her sister; remainder to her first and other sons in tail male in strict settlement; remainder to her daughters as tenants in common in tail, with cross remainders amongst them in tail; remainder to his own right heirs: And, as to certain other parts of his real estate in the will mentioned, upon the same trusts for the benefit of his daughter Margaret Lauretta Mellish and her children, with remainder over, in case of failure of issue, to the appellant and her children, as he had declared with respect to the property given to her, in the same manner; as if such trusts were repeated, mutatis mutandis. And the testator gave his leasehold house in Richmond Terrace, Whitehall, to his said trustees, upon the same trusts, for the benefit of the appellant and her children, as he had declared with respect to the real estate given to her, [135] or as near thereto as the nature of the property would admit: And he gave his shares in the East and West India Docks, in the Wey and Avon Canal, and in the Poplar and Greenwich Ferry, to the said trustees, for the benefit of his daughter Margaret Lauretta and her children, in the same manner. The testator, after some gifts to his wife, including an annuity of 2000 for her life, charged on his funded and other property, gave all the residue of his personal estate to his said two trustees, in trust to sell his ships and cargoes, and such other 1043 II H.L.C., 136 THYNNE (LADY) V. GLENGALL (EARL OF) [1848] parts thereof as they might think advisable, and to invest the money arising therefrom in Government or real securities; and, after providing for the payment of the said annuity to his wife, and paying such legacies as he might thereafter give, to stand possessed thereof on the trusts following: - As to one moiety of such residue, on trust to pay the interest thereof to the appellant, for her separate use for her life, in the same manner as he had directed with respect to the rents of the real estate given to...
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