Topham v The Duke of Portland
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1863 |
| Date | 01 January 1863 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 205
BEFORE THE LORDS JUSTICES.
S. C. 31 Beav. 525; 32 L. J. Ch. 257; 8 L. T. 180; 11 W. R. 507; 1 De G. J. & S. 603; 11 H. L. C. 32; 34 L. J. Ch. 113; 10 Jur. (N. S.), 501; 10 L. T. 355; 12 W. R. 697; 11 E. R. 1242. See Thacker v. Key, 1869, L. R. 8 Eq. 415; Cooper v. Cooper, 1869, L. R. 5 Ch. 212; In re Huish's Charity, 1870, L. R. 10 Eq. 9. Discussed Burdick v. Garrick, 1870, L. R. 5 Ch. 453. Distinguished, Roach v. Trood, 1875, 3 Ch. D. 430. See Palmer v. Locke, 1880, 15 Ch. D. 299; Whelan v. Palmer 1888, 39 Ch. D. 658. For further proceedings in 1869, see S. C. L. R. 5 Ch. 40.
[817] topham v. the duke of portland. Before the Lords Justices. Jan. 12, 13, 14, 16, Feb. 14, August 1, Dec. 5, 1863. [S. C. 31 Beav. 525; 32 L. J. Ch. 257; 8 L. T. 180 ; 11 W. R. 507 ; 1 De G. J. & S. 603; 11 H. L. C. 32; 34 L. J. Ch. 113; 10 Jur. (N. S.), 501 ; 10 L. T. 355; 12 W. R. 697; 11 E. R. 1242. See Thacker v. Key, 1869, L. R. 8 Eq. 415; Cooper v. Cooper, 1869, L. R. 5 Ch. 212 ; In re Huish's Charity, 1870, L. R. 10 Eq. 9. Discussed, Burdide v. Garrick, 1870, L. R. 5 Ch. 453. Distinguished, Roach v. Trood, 1875, 3 Ch. D. 430. See Palmer v. Locke, 1880, 15 Ch. D. 299 ; Whelan v. Palmer, 1888, 39 Ch. D. 658. For further proceedings in 1869, see S. C. L. R. 5 Ch. 40.] The donee of a power of appointing portions among his younger children appointed 206 TOPHAM V. THE DUKE OF POBTLAND IDB 0. J. ts 8. B18. . a double share to a younger child without previous communication with him. But it appeared from the instructions for the appointment, that its purpose as to half of . the double share was that it should be held in trust, and the income accumulated during the life of the appointee and twenty-one years afterwards, or until the successor to the title of the appointor should direct the half of the double share and accumulations to be paid to another child who had been excluded by reason of an intended marriage disliked by the appointor. In the absence of such direction the half of the double share and accumulations were intended to be paid to the appointee. The appointee soon after the appointment executed a deed settling the moiety accordingly. Held,- 1. That if the appointment and subsequent settlement could be held to be one transaction, the provisions for accumulation and for the controul of the appointor's successor in title over the appointed fund could not be rejected as mere excess, so as to give the moiety to the excluded child. 2. That the purpose of the appointment as to the moiety, although uncommunicated, vitiated it as to that portion, but as to that portion only. A settlor intending to exclude one of his children from a settled annuity, in the event of an intended and disapproved-of marriage, unless the settlor's successor in title should otherwise direct, gave instructions to that effect for a settlement, which was prepared so as to vest the annuity in trustees in trust to pay it to the child and her sister, or either of them to the exclusion of the other, in such shares as the successor to his title should appoint, and subject thereto to the two children equally. The successor first appointed one year's annuity to the sister without any previous communication with her, and afterwards caused to be prepared for her signature an order to her bankers directing them to carry a moiety to a trust account. She signed the order, and afterwards the successor appointed to her the whole annuity, which continued to be paid over to the trust fund under the same order. Held, that the appointment was a fraud on the power, and that the intention of the donor of the power could only be collected from the deed creating it. A tifilfr cannot be derived under a fraud upon a power in the absence of valuable consideration. In considering whether or not a particular appointment is a fraud upon the power, although the motive with which the power was exercised may not be regarded, the purpose may. The rights of the persons entitled in default of appointment under a power can be defeated only by its bondjide exercise. The general rule laid down in Daubeny v. Cockburn (1 Mer. 626), that where an appointment is made for a bad purpose the bad purpose affects the whole appointment, does not apply to cases in which the evidence enables the Court to distinguish what is attributable to an authorised from what is attributable to an unauthorised purpose. The questions raised by these appeals, which were from a decision of the Master of the Rolls, reported in the 31st Volume of Mr. Beavan's Reports (page 525), related to the operation and validity of appointments made, as to some of them by the late, and as to others of them by the [518] present, Duke of Portland, under powers vested in them respectively, and the following statement is in substance taken from the judgment of the Lord Justice Turner. The first appointment in question was one made by the late Duke of Portland under a power contained in a settlement, dated the 8th of June 1814, which was founded upon a settlement made upon his marriage with the late duchess in the year 1795. At the date of this settlement of 1814 there,,were eight daughters and younger sons of the marriage, and by the settlement a sum of 40,000 was secured upon some estates in the county of Nottingham belonging to the Portland family for portions of younger children. The estates were limited to trustees for a term of one thousand years for securing the portions, and the trusts of the term were declared to be, after the decease of the duke-to levy and raise for the portion or portions of as well the eight daughters and younger sons of the duke by the duchess his wife as the children of the same duke and duchess thereafter to be bora the sum of 40,000, lDBG.J,fti.H. TOEHAM V. THE DUKE OF PORTLAND 207 and to pay jand divide the same unto or between such daughter* and younger sons and future children respectively, or any one or more of them, entire, or in such parts, shares and proportions, and at such ages, days and times, and subject to, with and under such provisoes, conditions and limitations over, being for the benefit of some or one of iuch daughters and younger children and future children, as the duke and duchess by any deed or deeds, writing or writings, with or without power of revocation and new appointment, to be sealed and delivered by them respectively in the presence of and to be attested by two or more credible witnesses, should direct or appoint; and for want of such joint direction or appointment, then as the survivor of them [819] should after the death of the other of them by any deed or deeds, writing or writings, with or without power of revocation and new appointment so executed and attested as aforesaid, or by his or her last will and testament in writing, or any codicil or codieils thereto, to be signed by him or her in the presence of and attested by the like number of witnesses, direct or appoint; and in default of such direction or appointment, or in case the same should not extend to the whole of the 40,000, then to pay the whole thereof or so much thereof whereof there should be no such direction or appointment as aforesaid, unto or equally between or amongst all such daughters and younger sons and future children, share and share alike. By another settlement, made upon the marriage of the late duke and duchess, another sum of .40,000 was provided for portions of younger children, and was secured upon estates in Scotland belonging to the late duchess, and a power of appointment similar to the power contained in the settlement of 1814 was given to the late duke. One of the eight younger children mentioned in the settlement of 1814 having afterwards become the eldest son, there were in the result seven younger children of the late duke and duchess; all of whom attained twenty-one. Of these younger children two afterwards died, and their interests in the suit were represented by the Defendant the Duke of Portland. Two others of them married, and one-sixth of each of the sums of 40,000 was appointed to each of them, thus disposing of 13,333, 6s. 8d., part of each of those sums. The three other younger children were the Plaintiff Lady Mary Topham, then Lady Mary Bentinck, the Defendant Lord Henry Bentinck, and the Defendant Lady Harriet Bentinck. No further appointment of any part of [520] either of the above-mentioned sums of 40,000 was made until the month of October 1848, and 26,666, 13s. 4d., part of each of those sums, was therefore then remaining unappointed. Before the month of October 1848, however, the following events had occurred. Sometime in or before the month of June 1843 the Plaintiff Lady Mary Topham, then Lady Mary Bentinck, became engaged to marry Sir William Topham, and this proposed marriage was much objected to by the late duke. On the 29th of June 1843 the late duke and duchess executed a deed of that date, not in controversy in the suit, by which money and stock were assigned and covenanted to be transferred to and into the names of the present Duke of Portland and Lord George Bentinck, upon trust to pay the income thereof to the late duchess for her life; and after her death upon trust to set apart so much and such portion of the trust fund, the annual dividends, interest or income arising wherefrom to be calculated at a rate not exceeding 3 per cent, per annum would realise not less than 800 sterling, to be held upon the trusts thereinafter declared. Then the trusts of that fund were declared to be these-upon trust that the trustees should stand possessed thereof and of the dividends, interest and annual income to arise or be received therefrom, upon trust during the life of Lady Mary Topham ;-and provided the then Duke of Portland during his life, or, after his decease, the person who thenceforward and for the time being during the life of Lady Mary Topham should be Duke of Portland, by any deed or...
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