The Reverend Andrew Daubeny and Giles Daubeny, Plaintiffs, and Sir William Cockburn, John Ellis, and Judith his Wife, Defendants
| Jurisdiction | England & Wales |
| Judgment Date | 29 July 1816 |
| Date | 29 July 1816 |
| Court | High Court of Chancery |
English Reports Citation: 35 E.R. 801
HIGH COURT OF CHANCERY
See Askham v. Barker, 1853, 17 Beav. 54; Rowley v. Rowley, 1854, Kay, 259; Topham v. Duke of Portland, 1863, 1 De G. J. & S. 572; Whelan v. Palmer, 1888, 39 Ch. D. 653; In re Lawley, [1902] 2 Ch. 676.
[626] The Reverend andrew daubeny and giles daubeny, Plaintiffs, and Sir william gockburn, john ellis, and judith his Wife, .Defendants. Bolls, July 9-12, 26-29, 1816. [See Askham v. .Barker, 1853, 17 Beav. 54 ; Rowley v. Rowley, 1854, Kay, 259 ; Topham v:Duke of Portland, 1863, 1 De G. J. & S. 572 ; Whelan v. Palmer, 1888, 39 Gh. D. 653 ; In re Lawley, [1902] 2 Oh. 676.] Voluntary Settlement of personal property, in trust for such one or more.of his children as the Settlor shall appoint. Appointment to one child, exclusively, upon a secret understanding that that child shall re-assign a part of the fund to, or in favour of, a Stranger. This Appointment is a fraud upon the settlement ; and void, not only to the extent of the sum assigned back, but in toto. Bill, by purchaser for valuable consideration, without notice, under this appointment, dismissed as against the person entitled under the settlement in default of appointment, such person having also the legal estate in the fund which was the subject of the appointment. James Cockburn, Esq., having one son (the Defendant, Sir William Oockburn), and two daughters, and being possessed of 10,000, which he had lent on various securities in the names of W, Froggatt, and. of his daughter Margaret, made a volun-G. xv.~26 802 DAUBKXY V.. COCKBURX tary settlement, dated the 5th of March 1784, by which it was declared that the said Froggalt arid Margaret Cockburn should stand and be possessed of the said fund, and of the securities whereon the same was invested, upon trust, as to 2000, for the said Margaret; and, as to the remaining 8000, to pay the interest to the Settlor for life ; and, after his decease, as to 2000 (part thereof), for his daughter Mary; and as to 1000 (other part thereof) for his son William; and, as to the residue,'' Upon trust for all and every or such one or more of the child and children of the said Janes CocJdmrn, as he the said James Cockburn should direct or appoint " ; and, in default of appointment, for his said son William, his Executors, &c-. Margaret Cockburn married Cole, and received her 2000 portion under the settlement. The 1000 portion for Sir William Cockburn was also raised and [627] paid to him in the lifetime of his father. Mary died before her portion was paid. By deed poll, dated the 19th of May 1796, under the hand and seal of the said James Cockburn, reciting that Margaret had relinquished her trust to Sir William, who, together with Froggatt, became and then stood possessed of the remaining sum of 7000, and interest, and the securities for the same, upon the trusts of the settlement, and that, upon the death of the said James Cockburn, 2000, part of the said 7000, would go to the representatives of his deceased daughter Ma/ry, and 5000 (residue thereof) would thereupon become payable to or between such one or more of the children of the said James Cockburn as he should appoint, and further reciting that the said James Cockburn was desirous of settling, and had agreed to appoint, the said 5000 (expectant as aforesaid) absolutely to his daughter the said Margaret Cole, as thereinafter mentioned; it was witnessed that, in pursuance of such desire, and in consideration of the natural love and affection which he bore towards his said daughter, he the said James Cockburn (in pursuance and execution of the said recited power or authority, and by force and virtue thereof), did thereby absolutely and irrevocably direct, limit, and appoint, all that the said sum of 5000, as the clear residue or unappointed remainder of the said trust monies, and the securities, &c., and the interest dividends, &c., in reversion or remainder expectant on his decease, unto his said daughter Margaret Cole, her executors, administrators, or assigns, absolutely ; but nevertheless so that the said Margaret Cole might, notwithstanding her coverture, l y any deed under her hand and seal, attested as therein mentioned, appoint the said sum of 5000 to or in trust for any person or [628] persons, in such proportions, and for such intents and purposes, &c., as she might think fit. And the said James Cockburn declared, that the said Trustees should thenceforth stand possessed of the said 5 000, &c., in reversion, as aforesaid, in trust for the said Margaret Cole, or such person or persons, as she should in manner aforesaid appoint; and, in default of appointment, should pay or assign the same to the said Margaret Cole, her executors, or administrators, absolutely. By Indenture dated the 20th of May 1796 (the day following the day of the date of the deed poll), between the said Margaret Cole of the one part, and the Defendant Mrs. Ellis, then Judith Land spinster, of the other part; reciting that the said Margaret Cole was desirous, and had agreed, to settle and assure 2000 (part of the said 5000), to the said Judith, for her own use and benefit ; it was witnessed that, in pursuance of such desire or agreement, " and in consideration of five shillings, and for other good considerations," she, the said Margaret Cole, did, in pursuance of the power given to her by the said deed poll, absolutely and irrevocably appoint the said 2000, together with the full benefit of the securities upon which the said 5000 was or might be invested (so far as related to the security of the said 2000, and all other the produce, &c., thereof, in reversion, as aforesaid, unto the said Judith, her Executors, &c., so as that she might at any time thereafter appoint or bequeath the same in such manner as she should think proper ; and, in default of appointment, absolutely. By Indenture, dated Feb. 7, 1797, between Thomas Cole and 'Margaret his wife, of the one part, and Andrew Daubenn, of the other part, reciting the set-[629]-tlement of 1784, and the deed poll, and that the said Margaret Cole had then made no appointment of the trust monies ; but having occasion for money, and the said Andrew TJaubemy having agreed to lend her 2000 on the security of the said trust monies, she the said Margaret Cole, and Thomas Cole her husband, had agreed to appoint the same to him the said Andrew Daubeny, as therein mentioned ; it was witnessed, that in consideration of 2000, she the said Margaret Cole did, in pursuance of the power given her by the said deed poll, appoint, and the said. Thomas Cole assigned and 1 BIEB. 630. DAUBENY V. COCKBUR.N 803 transferred, the said 5000 (trust monies), and the securities, &c., to the said Andrew Daubeny, his...
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