Tidd v Lister Bassill v Lister
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1853 |
| Date | 01 January 1853 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 336
BEFORE THE LORD CHANCELLOR LORD CRANWORTH.
S. C. 10 Hare, 140; 23 L. J. Ch. 249; 18 Jur. 543. See In re Carr's Trust, 1871, L. R. 12 Eq. 613; Taunton v. Morris, 1878-79, 8 Ch. D. 456; 11 Ch. D. 780.
[857] tidd v. lister. bassill v. lister. Before the Lord Chancellor Lord Cranworth. April 27, 30, May 4, Dec. 19, 1853; Jan. 11, 16, March 11, April 29, 1854. [S. C. 10 Hare, 140; 23 L. J. Ch. 249; 18 Jur. 543. See In re Oarr's Trust, 1871, L. E. 12 Eq. 613; Taunlon v. Morris, 1878-79, 8 Ch. D. 456; 11 Ch. D. 780.] Although the purchaser for value from the husband of his wife's chose in action, to the corpus of which she is entitled, is in no better position than the husband himself, yet the husband's assignment for value of his wife's equitable life interest will prevail against her if he afterwards deserts her and leaves her destitute; if he deserts his wife, a Court of Equity will not help him to get at the fund without securing to the wife a portion of the income, but this consideration is inapplicable to the assignee of the husband. The income of a married woman's life-estate had been ordered to be received and applied by a receiver in a suit, in payment of her husband's incumbrances. Held, that arrears of income in the receiver's hands which had not been paid as directed were, nevertheless, by the effect of the order, reduced into possession so as to disentitle the wife surviving to such arrears. Husband and wife joined in creating two mortgages on the life interest of the wife in freehold and copyhold estates, the first mortgagee having a charge on both freeholds and copyholds, and the second on the freeholds only. Held, that as against the wife surviving, the second mortgagee was entitled to require that the first mortgagee should be satisfied out of the copyholds so far as they would extend. Testator being possessed of real and personal estate directed the latter to be invested in Government securities, the interest whereof, with all the rents and profits from freehold, copyhold, or leasehold property, after payment of all his debts, &c., he gave and devised upon certain trusts. Held, that this did not evidence a sufficient intention to create a mixed fund, so as to exempt the application of the personal estate in the first instance from the discharge of his debts. The facts of this case are so fully set forth in the 10th Volume of Mr. Hare's Reports, page 140, and recapitulated in the judgment of the Lord Chancellor, that it will be sufficient here to state that the appeal was by the Plaintiff Elizabeth Tidd from the decision of the Vice-Chancellor Turner, who determined the four following points against the Plaintiff: first, that though deserted by her husband she was not entitled as against his particular assignee to maintenance out of the income of the real and personal estate to which she was entitled in equity for her life; secondly, that though monies coming to the hand of a receiver [858] in a cause in which the husband and wife were parties might be considered as not reduced into possession, yet where, as in this case, the husband had created incumbrances on his wife's property, and the Court had ordered monies to be applied in favour of the incum-brancers, the effect was to divest the title and reduce into possession the monies which were the subject of the order; thirdly, that there was not a sufficient indication of intention to create a mixed fund so as to exempt the application of the personal estate in the first instance from the discharge of debts in a case where the testator had given all his real and personal property to trustees, and directed his personal estate to " be put out into Government security, the interest whereof with all the rents and profits from freehold, copyhold, or leasehold property," after payment of his debts, and the premiums on certain policies of insurance was given on the trust* therein mentioned ; fourthly, that the husband and wife having joined in creating two mortgages on the life interest of the wife in certain freehold and copyhold property, and the first mortgagee having a charge on both the freeholds and copyholds, and the second mortgagee upon the freeholds only, the latter was entitled, 3DEO.M. jcCK8J9. TIDD V. LISTER 337 as against the wife surviving, to require that the former should be satisfied out of the copyhold property, so far as it would exteiid. the solicitor-general [Bethell], and Mr. Leach, for Mrs. Elizabeth Tidd, the Appellant. We submit that Mrs. Tidd having been deserted by her husband was entitled, as against his particular assignee, for value to a settlement out of her life-estate. There is no ground for the distinction laid down by the Vice-Chancellor that the assignee for value of the life-estate of the wife is in a better position than the assignee for value of a capital sum; both take, subject to the [859] same equity under which the husband is entitled to his wife's property, namely, the obligation of maintaining her. On this principle it is, that when property of the wife cannot be reached by the husband without the interposition of this Court, equity will withhold its assistance until it has secured to the wife a suitable provision. There is clearly no difference in principle between the equity affecting a general and particular assignee for value in reference to the wife's property, as both stand in the shoes of the husband. They relied upon the following cases; Jewson v. Moulson (2 Atk. 417), Pryor v. Hill (4 Bro. C. C. 138), Macaulay v. Philips (4 Ves. 15), Sturgis v. Champneys (5 Myl. & Cr. 97), Lord Elibank v. Montolieu (5 Ves. 737), Wilkinson v. Oiarlesworth (10 Beav. 324), Richards v. Chambers (10 Ves. 580), Bond v. Simmons (3 Atk. 20), Whit-marsh v. Robertson (1 Coll. 570), Scott v. Spashett (3 Mac. & G. 599), Vaughm v. Buck (1 Sim. N. S. 284), Dunkley v. Dunkley (2 De G. Mac. & G. 390), Wortham v, Pemberton (1 De G. & S. 644), Greedy v. Lavender (13 Beav. 62), IVJtittle v. Henning (2 Phil. 731). They referred to and commented upon the cases of Elliott v. Cordell (5 Madd. 149), and Stanton v. Hall (2 Euss. & M. 175). Mr. Walker and Mr. Hardy, for the Messrs. Phillips, who were the first mortgagees, being incumbrancers on both the freehold and copyhold property, took no part in the argument. Mr. Rolt and Mr. Eddis, for Mrs. Bassill, the second mortgagee, whose security was on the freeholds only. The cases of Wright v. Motley (11 Ves. 12), Elliott v. Cor-\$8S\-ddl (5 Madd. 149), and Stanton v. Hall (2 Russ. & M. 175), clearly shew the reason of the distinction between the purchase of a life interest and an absolute interest of the wife's : in the former case, the consent of the wife is not requisite in order to enable the husband to receive it; nor could this Court impose on the purchaser of such an interest the obligation of seeing that the husband duly maintains his wife ever afterwards. The principle of the distinction on which this Court acts, as between the general and particular assignee, is founded upon this, that in the case of a bankrupt the inability to maintain his wife is coincident with the title of the assignee; but in the case of the particular assignee, the presumption is that the husband is of ability and is maintaining his wife. the solicitor-general, in reply. It was then contended by the Appellant, upon the authority of Stiffe v. Everitt (1 Myl. & Cr. 37), and Whittle v. Henning (2 Phil. 731), that the arrears of income in the hands of the receiver must be regarded as a chose in action, and not reduced into possession before the death of the husband so as to exclude the Appellant's title by survivorship. It was also urged by the Appellant that, according to the true construction of the will in question, the testator had created a mixed fund out of the rents and profits of his real estate and of his personalty, to defray debts and charges, and under such circumstances they ought not to have been thrown in the first instance on the personalty, Falkner v. Grace (9 Hare, 280). The Appellant further submitted that being in the [861] position of surety the equity to marshal did not attach as against her; Robinson v. Gee (1 Ves. 251), Aguilar v. Aguilar (5 Madd. 414), Earl of Kinnoul v. Money (3 Swanst. 202, note (a) ), Copis v. Middleton (Turn. & R. 224), Boas-man v. Johnston (3 Sim. 377), Bowker v. Bull (1 Sim. N. S. 29), Averall v. Wade. (Lloyd & Goold, 252), Barnes v. Itaxter (1 Y. & C. C. C. 401), Roper's Husband and Wife, Vol. I., p. 145, note b.; Story's Commentaries, Vol. I., p. 644. Mr. Rolt and Mr. Eddis, for Mrs. Bassill, argued that the present was simply a case in which both the real and personal estate were vested in the same persons to pay debts without any direction to sell, and that it was clear that the testator had 338 TIDD V. LISTER 3 DE O. M. & Q. 882. not thereby created a mixed fund for the payment of his debts, and they relied on the authority of Bmighton v. Boughtcm (1 H. L. Ca. 406), as conclusive upon this point. Mr. Leach, in roply. Dec. 19. the lord chancellor. This was an appeal against an order of the Vice-Chancellor Turner, made on two petitions by the Plaintiff Elizabeth Tidd. The first petition was presented on the 1st of August 1851, by Elizabeth Tidd, by her son and next friend, her husband being then alive. He died on tho 10th November 1851, and the second petition was presented by E. Tidd, his widow, on the 26th January 1852. The main object of both petitions was the same, [862] namely, to obtain the income of the residuary real and personal estate of Josias Lister, the father of the Petitioner, who died in November 1803. It is not necessary to set out the contents of his will further than to say that being seised of and entitled to real and personal estate, the former being partly freehold and partly copyhold, after payment of his debts and certain premiums of insurance, he gave and...
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