Toker v Toker
| Jurisdiction | England & Wales |
| Judgment Date | 08 May 1863 |
| Date | 08 May 1863 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 724
BEFORE THE LORDS JUSTICES.
S. C. 31 Beav. 629; 9 Jur. (N. S.), 370; 32 L. J. Ch. 322; 8 L. T. 777. See Coutts v. Acworth, 1869, L. R. 8 Eq. 563; Hall v. Hall, 1873, L. R. 8 Ch. 437.
[487] toker v. toker. Before the Lords Justices. March 18, 19, 20, 21, May S, 1863. [S. C. 31 Beav. 629; 9 Jur. (N. S.), 370; 32 L. J. Ch. 322 ; 8 L. T. 777. See Coutts v. Acwm-th, 1869, L. R. 8 Eq. 563 Hall v. Hall, 1873, L. R. 8 Ch. 437.] A settlement by an aunt on her nephew in fee of all the settlor's real estates, reserving a life-estate only to herself, without any consideration except a covenant by the nephew to pay charges on the property after the aunt's death, and without any power of revocation, upheld, even as a voluntary settlement (as to which quiere per the Lord Justice Turner), it appearing that the settlor had had the deed sufficiently explained to her before she executed it, that she sufficiently understood its nature and effect when she executed it, and that she intended when she executed it that it should operate and be effective according to its purport and tenor, and there being no ground for believing that she consented to execute or did execute it through or under any fraud or misrepresentation or undue influence or by means or reason of any promise made to her or in reliance on any promise. In such cases the evidence in support of the validity of the impeached deed must be clear and decisive. The absence from a voluntary settlement of a power of revocation reserved to the settlor is, in determining the validity of the impeached settlement, only a circumstance to be taken into account in connection with the other circumstances of the case. The absence in the like case of advice given to the settlor as to the insertion of a power of revocation stands on the same footing. This was an appeal by the Plaintiff from the decision of the Master of the Rolls dismissing the bill, but, under the circumstances, without costs. The object of the bill was to set aside a settlement executed by the Appellant on the 16th of November 1853, on the grounds of its execution by her, she being at the time a maiden lady advanced in years, having been obtained from her by her nephew, the Defendant and Respondent Philip Champion Toker, by means of undue influence on his part, and as having been in equity a fraud on her. The settlement in question was expressed to be made between the Appellant of the one part, the Respondent of the second part, and Richard Bathurst of the third part. It witnessed that in consideration of the natural love and affection which the Appellant had and bore for and towards the Respondent, and of the covenant and agreement thereinafter entered into by him with the Appellant, and for the nominal [488] consideration therein mentioned, the Appellant granted to Richard Bathurst and his heirs certain specified real estates, and all other the messuages, lands, tenements and hereditaments, and parts and shares of messuages, lands, tenements and hereditaments, and real estate of the Appellant, to have and to hold the premises (subject nevertheless to the several charges, debts and incumbrances, if any, to which the same were respectively liable) to Richard Bathurst and his heirs, to the use of the Plaintiff and her assigns during her life without impeachment of waste, and after her decease to 3 DEO. J. &8. 489. TOKER V. TOKER 725 such uses upon and for such trusts, intents and purposes and with, under and subject to such powers, provisoes, agreements and declarations as the Respondent should by deed appoint, and, in default of such appointment, to the usual uses to bar dower in favour of the Eespondent in fee. Then followed powers for the Appellant during her life to lease the settled property, and in consideration of the premises the Eespondent covenanted to pay or discharge and keep the Appellant and her representatives indemnified against the charges, debts and incumbrances then on the property, and to pay the interest on such charges, debts and incumbrances as from the Appellant's death. Other clauses followed, which were intended to regulate the mode in which these charges, debts and incumbrances were to be borne as between the life-estate of the Appellant and the reversion of the Respondent, but the settlement contained no reservation to the Appellant of any power of revocation. The case in the Court below is reported in Mr. Beavan's Reports (vol. 31, p. 629), where the facts and evidence suffi-[489]-eiently appear, except that it should be added to the statement of facts in Mr. Beavan's report, that the Appellant had in the year 1846 made her will, leaving all her property to her brother John Buck Toker. For the purposes of this report, however, it is unnecessary to enter into such facts and evidence. The appeal was argued by Mr. Greene and Mr. Kingdon, for the Appellant, and by Mr. Selwyn, Mr. Baggallay and Mr. W. A. Clark, for the Respondent. The following authorities were referred to, viz:-Hoghton v Hoghtan (15 Beav. 278); Cooke v. Lamotta (Ib. 234); Huffiienin v. Basehy (14 Ves. 273); Nanney v. frillmms (22 Beav. 452); Forshaw v. Wekby (30 Ib. 243), and Bentley v. Mackay (31 Ib. 143); and it was strongly urged on the part of the Appellant that, assuming, as was also contended, that the settlement was a voluntary settlement, a power of revocation ought to have been inserted therein in favour of the Appellant, and that she ought to have been advised to have such a power inserted. May 8. the lord justice knight bruce said that the case had seemed to him a case of difficulty, nor had he been able to free his mind from doubt concerning it. But the inclination of his Lordship's mind being rather against than in favour of the Appellant's title to succeed in the suit, and the Master of ,the Rolls having dismissed the bill, his Lordship could not give a voice for disturbing that dismissal. His Lordship thought that upon the whole of the evidence the Appellant must be taken to have had the impeached deed in question [490] sufficiently explained to her before she executed it, to have sufficiently understood its nature and effect when she executed it, and to have intended when she executed it that it should operate and be effective according to its purport and tenor ; nor did his Lordship see any ground for believing that she consented to execute, or did execute it, through or under any fraud or misrepresentation or undue influence, or by means or reason of any promise made to her, or in reliance on any promise. It might be that Mr. Bathurst did not expressly call the Appellant's attention to the fact that the deed did not contain a power of revocation, but it was not, his Lordship thought, necessary. He believed that she intended the deed to be irrevocable, and executed it with that intention. the lord justice turner recapitulated the facts of the case, and examined the pleadings and evidence in the cause, and said that questions of the nature of that before the Court must depend on the evidence ; and, having entered into a consideration of how the present case stood in that respect, his Lordship concluded that the balance of testimony was clearly in favour of the Respondent. In speaking, however, of the balance of testimony, his Lordship said that he desired to be understood as not meaning a doubtful uncertain balance; his Lordship thought that in the position in which the Respondent stood, the evidence on his part ought to be clear and decisive, and that the evidence did come up to that standard. It was, in his Lordship's opinion, proved that what had been done was for giving effect to a purpose which the Appellant had long entertained : that she desired that the estate should continue in the...
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