Walrond v Walrond
| Jurisdiction | England & Wales |
| Judgment Date | 13 November 1858 |
| Date | 13 November 1858 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 322
HIGH COURT OF CHANCERY
S. C. 28 L. J. Ch. 97; 4 Jur. (N. S.) 1099; 7 W. R. 33.
Husband and Wife. Separation. Specific Performance. Custody of Children. Costs.
[18] walrond v. walrond. Nov. 12, 13, 1858. [S. C. 28 L. J. Ch. 97; 4 Jur. (N. S.) 1099; 7 W. E. 33.] Husband and Wife. Separation. Specific Performance. Custody of Children. Costs. A husband, upon a treaty for separation from his wife, agreed with a trustee to pay his wife an annuity for her separate use, and also, during their separation, to permit their daughter, then an infant, but now of age, to reside with, and be under the control of, and educated and supported by, her mother; in consideration whereof the wife (who was entitled under her marriage settlement to property settled to her separate use without power of anticipation) agreed with the same trustee to indemnify her husband in respect of any debt on her own account or on account of their daughter. The trustee declining to enforce payment of arrears of the last-mentioned annuity, or to act any longer as trustee : Held, first, that this was a voluntary agreement on the part of the husband, no consideration moving from the trustee by way of indemnity or otherwise, and the wife having no power to contract so as to bind property as to which, though settled to her separate use, she was restrained from anticipation. Secondly, that the agreement being voluntary on the part of the husband, the Court could not decree specific performance of it by him, or order him to account in respect of arrears; nor could it appoint a new trustee in the only mode in which a trustee could be effectually appointed, viz., by ordering the husband to enter into a new covenant with the new trustee. Thirdly, that there being nothing to implicate the trustee in any concurrence with the husband to avoid payment of the annuity, the Court could not, under the prayer for general relief, direct, as in Seagrave v. Seagrave (13 Ves. 439), that the wife should be at liberty to sue in the name of her trustee upon giving him a proper indemnity. Besides, the stipulation relative to the daughter being contrary to the policy of the law, semble-no action on the agreement would lie; and the circumstance of the daughter's having since attained twenty-one would not affect the question. Practice as to costs where a demurrer to a bill for specific performance of such an agreement is allowed. The bill was filed by Lady Janet Walrond, the wife of the Defendant, Bethell Walrond, but now living separate and apart from him, by the Earl of Rosslyn, her next friend, against the said Bethell Walrond and George Capron, as Defendants. It stated that before the Plaintiff's marriage with the Defendant, a settlement was executed, whereby, in consideration of the marriage and of the Plaintiff's fortune being £10,000, £400 per annum was secured to be paid during their joint lives to the Pkintiff or her appointees without power of anticipation, and in default of appointment, to the Plaintiff for her sole and separate use. Then, after stating that the marriage was solemnised in November 1829, and that there was issue of the marriage a daughter, Harriott Walrond, who had attained JOHNS. 19. WALROND V. WALROND 323 twenty-one, and a son still an infant-the bill set out certain articles of agreement under seal, entered into on the 2d of [19] May 1850, between the Defendant, Walrond, of the first part, the Plaintiff of the second part, and the Defendant, Capron, of the third part; whereby, after reciting that Walrond and the Plaintiff had agreed to live separate and apart from one another, and that, upon the treaty for their separation, it was contracted between the parties that the Defendant and the Plaintiff should enter into such agreements as thereinafter contained, it was witnessed that, in pursuance of the said agreement and in consideration of the agreements and promises on the part of the Plaintiff thereinafter contained, Walrond, for himself and his executors and administrators, promised and agreed with Capron, his executors and administrators, yearly and every year, during the joint lives of himself and of the Plaintiff, to pay to the Plaintiff, or as she should appoint, one annuity of £250 for her sole and separate use without power of...
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