Walker v Armstrong
| Jurisdiction | England & Wales |
| Judgment Date | 19 July 1856 |
| Date | 19 July 1856 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 495
BEFORE THE LORDS JUSTICES.
S. C. 25 L. J. Ch. 738; 2 Jur. (N. S.), 959; 4 W. R. 770; 21 Beav. 284. See Attorney-General v. Cambridge Consumers' Gas Company, 1868, L. R. 6 Eq. 308.
8DEO.M. iO. Ml. WALKEB V. AHMSTRONG 495 [531] walker v. armstrong. Before the Lords Justices. July 14, 19, 1856. [S. C. 25 L. J. Ch. 738 ; 2 Jur. (N. S.), 959 ; 4 W. R. 770 ; 21 Beav. 284. See Attorney-General v. Cambridge Consumers' Gas Company, 1868, L. R. 6 Eq. 308.] A deed may be reformed so as to be plainly confined to the object intended, where its operation as it stands is doubtful. An appointment under a settlement limited the settled estates to such uses as a husband and wife should jointly appoint, but by mistake omitted to give them life- estates. On discovering the error, they instructed a solicitor to frame such a deed as would remedy it. The solicitor prepared a deed which remedied the defect, but was framed by way of complete re-limitation of the uses, and thus raised a question whether a testamentary appointment which the wife had made in the meantime, but of which the solicitor was unaware, was not revoked. Held, a proper case for reforming the deed. 5 This was an original hearing arising out of an appeal from a decision of the Master of the Rolls, reported in the 21st Volume of Mr. Beavan's Reports (page 284). On the marriage of the Plaintiff Captain Robertson Walker with his late wife in June 1824 a settlement was made by which her property, consisting of two estates, to one of which ahe was entitled under her brother's will, was limited to such uses as the husband and wife should jointly appoint by deed, and in default of such appointment, to the use of trustees and their heirs during the joint lives of the husband and wife in trust, as to one half, to pay the rents and profits to the husband during the joint lives of himself and his wife, and, as to the other half, to pay the rents and profits thereof to the wife for her separate use during their joint lives, and upon the death of either to the use of the survivor for life. Subject to these limitations the estate derived from the brother was limited to such uses as Mrs. Walker should appoint, either by deed or will, and in default of such appointment to the use of her first and other sons in tail male, with remainder to the use of her daughters as tenants in common in tail general, with cross-remainders between them in tail. In default of auch issue, the estate was limited to Robert Baynes Armstrong, the first Defendant, for life, with remainders to his first and other sons in tail male, with remainders over for life and in tail, [532] under which Anthony Benn, one of the Defendants, was the first tenant in tail in ease. As to the other estate, the limitations were to the use of the children of the marriage as Captain and Mrs. Walker, or the survivor, should appoint by deed, and in default of appointment to the use of the children as the survivor should by deed or will appoint, and in default of appointment to the same uses as those limited of the other estate in default of appointment by Mrs. Walker. Sometime after the execution of the settlement it was observed, that, according to these limitations, the daughters of a son of the marriage would not in any event take, and it was also observed that the settlement contained no power enabling Mrs. Walker to dispose of the estate not derived from her brother, in case there should be no issue of the marriage. Mr. and Mrs. Walker desired that these errors might be corrected. Accordingly, a deed of appointment, dated the 17th of May 1825, was prepared and was executed by Captain Walker and his wife of the one part and the trustees of the other part. This deed recited the desire of Captain and Mrs. Walker to exercise the joint power of appointment, and then proceeded to limit and appoint both the estates to such uses as both husband and wife should by deed jointly appoint, and in default, of any auch appointment as follows:-So far as regarded the estate derived from her brother, to such uses as Mrs. Walker should appoint by deed or will, and in default of any such appointment to the use of the first and other sons of the marriage in tail general, with remainder to the use of the daughters of the marriage as tenants in common in tail general, with cross-remainders among them in tail, and in default of such issue to such uses as Mrs. Walker should by deed or will appoint, and in [533] default of such appointment to the uses limited by the original settlement to take 496 WALKER V. ARMSTRONG 8 DE Q. M. to Q. 534. effect after the limitations to the daughters of Mrs. Walker. So far as regarded the estate not derived from the brother, it was declared that it should remain (subject to the above joint power of appointment, and subject to the uses in the original settlement limited to take effect during the lives of Captain and Mrs. Walker and the survivor of them) to the use of the children of the marriage in such manner as Captain and Mrs. Walker should by deed jointly appoint, and in default of such appointment to the uses limited by the deed now in statement to take effect concerning the lands derived from her brother; provided always, that in case there should be a failure of issue of the marriage, Mr. Walker should have a general power of appointing by will the hereditaments not derived from her brother. In February 1827, Mrs. Walker made her will, by which, after reciting the power contained in the original settlement, she, by virtue of that and every other power enabling her so to do, appointed all the settled lands and hereditaments, as to part, to certain persons, members of the Armstrong family, and as to the remainder to the Plaintiff, her husband Captain Walker absolutely. Many years afterwards, Captain and Mrs. Walker having occasion to deal with some portion of their property, the settlements were laid before a professional gentleman, who pointed out the omission which existed in the deed of 1825, of any limitation of life-estates to Captain and Mrs. Walker. On their instructing him as mentioned below to remedy the defect, he prepared the deed in question in the cause, which was dated the 24th of October 1840, and made between Captain and Mrs. Walker of the one part, and the surviving trustees of the [534] original settlement of the other part. It recited the indentures of June 1824, and of May 1825, and that Captain and Mrs. Walker were desirous of varying the limitations contained in the settlement, and of limiting the estates to the uses thereinafter declared. By the witnessing part Captain and Mrs. Walker appointed the estates, as well those derived from the brother as the others to such uses as Captain and Mrs. Walker should by deed appoint, and in default thereof during the joint lives of Captain and Mrs. Walker, as to one half in trust for Captain Walker and as to the other half, in trust for the separate use of Mrs. Walker, and after the decease of either to the use of the survivor for life, and after the decease of the survivor, to such uses as Mrs. Walker should by deed or will appoint, and in default of appointment, to uses under which the Defendants were interested. This deed omitted all limitations in favour of issue, but there had never been any, and Mrs. Walker was advanced in life. In December 1854, Mrs. Walker died without issue, without having altered or re-published her will, and without having revoked it, unless the deed of 1840 operated as a revocation. When the cause was heard before the Master of the Rolls the bill did not seek to reform the deed of 1840, and the arguments and judgment proceeded, therefore, on the aupposition that the intention of those who executed that deed, and the title to the property, was to be governed or affected by it according to its actual tenor, according to its true construction in its actual state. On this hypothesis the Master of the Eolls dismissed the bill, and the Plaintiff appealed. When the appeal first came on, their Lordships thought from the materials then existing in the suit, that there was a probability, or reasonable possibility, that the instrument of 1840 had been executed [535] in mistake, and might be properly, to some extent at least, impeached or questioned on that ground. They therefore gave the Plaintiffs leave to amend the bill, and to the Plaintiffs and Defendants permission to add to the evidence. The bill having been amended accordingly, and additional evidence having been adduced, it appeared by the pleadings and evidence in their altered state, that the mistake in the instrument of 1825 having been discovered after the year 1827, Captain and Mrs. Walker, in 1840, gave instructions to their then solicitor, Mr. Wilson Perry, to prepare such a deed as might be necessary to correct the mistake, and that Captain and Mrs. Walker in executing the instrument of the 24th of October 1840, considered and understood it as providing for that object and doing nothing more, and that so far as it exceeded that particular and restricted purpose, it was contrary to their wish, and executed in error. the solicitor-general (Stuart-Wortley), Mr. Roundell Palmer and Mr. Cole, for the Plaintiff. This is a plain case for reforming the deed, for there never was any 8DBG.H.ftCL 38. WALKER V. ARMSTRONG 497 intention to affect the property beyond the life of the survivor of the appointors. But even if the deed should not he reformed, there is no revocation of the will. They referred to Duke of Bedford v. Abercorn (1 Myl. & Cr. 312); Marquess of Exeter v. Marchioness of Exeter (3 Myl. & Cr. 321); Tweddell v. Tweddell (Turn. & R. 1); Barstonv. Kilvington (5 Ves. 593); Jenkins v. Quinduint (5 Ves. 596, n.); Marquess of Breculalbane v. Marquess of Chandos (2 Myl. & Cr. 711); Elbeck v. Wood (1 Russ. 564); Plow-[53fj]-den v. Hyde (2 De G. M. & G. 684) ; Parsons v. Freeman (3 Atk. 741); Evans v. Evans (1...
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