Arthur Underhill.

The principles of the interpretation of wills and settlements online

. (page 35 of 42)
Online LibraryArthur UnderhillThe principles of the interpretation of wills and settlements → online text (page 35 of 42)
Font size
QR-code for this ebook

first son for life, with remainder (in default of issue male

of A.) to B. for life, and to his sons and their sons in lik(^

manner. Lord Cowper said, that though the attempt to

create a perpetuity was vain, yet, so far as was consistent

with tho rules of law, the devise ought to he complied

with ; and he directed that all the sons already horn at

the testator's death should take estates for life, with

limitations to their unborn sons in tail (J/umhertson v.

JIumhertson (171G), 1 P. Wms. ;?32 ; WillJams v. IWle

(1847), 6 Ha. 231) ; L>/ddou v. A7//.sy)?i (1855), 1<) lieav.

565 ; and see Be Emsell, JJorcU v. Dorell, [1895] 2 (Jh.

Separate use In Willis V. Kijmer (1877), 7 Ch. i). 181, a testatrix
exTc^utorv"^ had by her will (after requesting her si.ster Eliza
trust. to perform her wishes as therein expressed) bequeathed

various legacies to her brothers and sisters and their
children, including a legacy of £3,000 to her brother
John for life, " the princi})al to be divided at his death
between his children John, Sophia, and ]\Iary Ann.*' The
testatrix subsequently made a codicil, whereby she
bequeathed to Eliza " all T possess," requesting that at her
death she " will leave th(> sums as T have directed hereto-
fore." Eliza by her will apjiointed the shares of Sophia
and Mary Ann to them to their separate use, and the

Chap. I.— Executory Settlements, Generally. 315

question then arose whether she coukl do so : and Sir Art. 66.
George Jessel. M.R., said, ••lam of opinion that Eliza pai^(i).
had power to attach a limitation to separate use. . . .
The oritiinal will and codicil say nothing about sejJarate
use. They merely direct her to leave the money after her
brother's death to his children, and nothing more. She is,
therefore, bound not to make a ditVereut disposition.
Well, she has conformed to that direction by leaving the
money to the children, and. in doing so. has taken care to
dispose of it in such a manner that the shares of the
daughters shall, in case of their marriage, still remain for
their own bfuetit, thus effectually carrying out her sister's

A testator directed his trustees to purchase lands in the Cross-
counties of N. aii.l D., to be settled, on the death of the someUmes
eldest son of J. S. without issue (which ha}>pened), to impliL'<l.
the use of every son of J. S. then living or who should be
born in the testator's lifetime, and the assigns of such son
during his life, with remainder to trustees to ])reserve
contingent remainders ; but to permit such son and his
assigns to receive the rents during his life, ami al'ri-i- his
decease to the use of such son's first and every other son
■successively in tail male, and on failure of such issue, to
the use of the testator's right heirs : — Hihl, that the
vuunger sons of J. S, took as tenant^ in common for life,
with remainder as to eacii son's share to his first ami other
-uii- in tail male, with cross-remainders over {Sttrtees v.
Surlies (1«71), 12 Eq. 400).

AVhere a marriage or other settlement of jiersonalty
rontainf* a power to vary investments, and a eoveiiaiit to
x'ttlu after-acijuired property on -imilar tni-ts, a settle-
ment of after-accjiiired real estate should eoniaiii a power
of sile, as that is analogous to a jtower of varying inve>t-
ments of personalty {Kllon v. Elton (1^<(J0), 27 I'.eav. (;;'. I.
aiKJ -ee T.iit V. L>illil>,ir;t (\M't), 1 IC<|. 17 1 : H. U.vj,,, r.
Ua>fn,r V. /iui/,ur, [I'JOl] 1 ('\i. \li'> : /,'■ Cnt .,,„/
KaMins Contrail, [11HJ5] 1 ( 'h. '.Wi).

352 Part VII. — Exkcutory Settlements,

Art. 66.

,.,—.) PAKAORArn (2).

Marriage The abovc oxtunplcs show the liberal interprotaiion

articles i • i ii • n

always wlnoli tho t'Oiirt nivcs to executory settlements ocnerally.

const riu'd 111 j]yi^ altlu)ii;iii there is no iliti'oronce of iirineiplc in this
favour 01 ^ ...

issue. respect between executory trusts arising- (ui nian-iao-e

articles, and those arisino- on wills or voluntary deeds, yet
in oiu' respect they do differ. For niarriaoe articles by
their very nature, furnish more emphatically a clue to the
persons intended to be provided for (viz., the spouses and
issue of the marriage) than do wills or voluntary deeds.
It is, therefore, a principle of construction, that an inten-
tion to benefit issue will be presumed in the case of
marriage articles ; whereas in the case of executory settle-
ments directed by wills or voluntary deeds, that intention
(if it exists) must lie gathered, either from the words of
the will or deed, or from the nature and object of the

Rule in Thus, in marriage articles, a covenant to settle estates

generally "'^ *^ *^^® "•^'^ ^^ ^^'^ husband for life, with remainder to the
inapplicable -svife for life, with remainder to their heirs male and the
to marriage , . i i • i / i ■ i •

articles. iu'irs ot such heirs male (which in an executed settlement

would give an estate in special tail male to the husband
under the rule in S/telIe//s Cas('), is always construed to
mean that the settlement shall be so drawn as to give life
estates only to the husband and wife successively ( Trevor v.
Trevor (1847), 1 P. ^^\ 022 ; Streatfeld v. Streatjield
(1779), 1 W. ct T. L. ('. 410 ; Lamhert v. Peyton (1860),
8 H. L. ('as. 1). For it is not to be presumed that the
parties meant to put it in the power of the husband to
defeat the very object of the settlement, which is to make
a provision for the issue of the marriage. Nevertheless,,
where the articles show that the parties understood the
ilistinction (as, for instance, where part of the [iroperty is
limited in strict settlement and part not), the trust will lie
construed strictly (Iloa-el v. Hotrel (IT'il), 2 Yes. sen. 358 :

C'hap. I. — Marriage Articles. i55;3

Fowel V. Prhe (1717), 2 P. W. 5.").") ; I/i>//nra>/ v. 7J<nj«<'r Art. 66.
(1786), 1 Bro. V. C Ot>4 ; and soo .^tijira, pj). 215, 211)), PanTT-')

But (somewhat curiously) it has been held that marriage l>iiection
articles pi-ovidin^j that a certain estate should be ■"■ strictly strictlv does

settled " in the event oi" the lady havin<r issue, did not "^'^ authorise

. ... ' I M 1 portions for

authorise any provision tor younger children ; apparently younger

on the ground that the main object of strict settlement of '^'"^'^''®"-

real estate is to keep it in the family (Grier v. Gvii'v

(1871'), L. H. .") H. L. t;,s8). But rf. Wriohf v. Wriaht,

[li)04] 1 1. K. ;U;(», where under a direction to settle strictly

in a will, it was proper to provitle a jointure for a widow.

()i\ the other luuul, it has been held, where iiiarriage
articles proviiled for *• power> usuallv contaiiu-d in settle-
ments of a like nature," that powers of sale, exchange, etc.,
were authorised (Jhtle <>/ ludj'ord v. Mioyais of Ahervorii
(1836), 1 My. A: ('. ;U2 : and >e(' \\'l.<e v. Piiwr (1880),
13 ( 'h. D. 84:8). But these decisions woukl seem to be
of little imi)ortance since the Settled Land Acts. A
reference to certain specific powers has been held impliedly
to negative any others, on the principle stated in Art. (I,
p. 54, unjira (Jivewster v. Aiu/ell (I82t)j, 1 Jac, ».V; AV.

An intended husltand covenanted to settle real e.-tate to Rule in

the u>(; of hiiU'-eif for life, with remainder to the use of the " '/'/','; ^'"'"',

not tollowrd

intended ** wife and children." It was htdd that, although in executory
in the case of an executed trust hy will this would (under „,a,.,i,,,,o
the rule in lf7/</'.v, p. 222, .supra) have given tlu' wife '»'ti<lt'!^-
an estate tail, y<'t the true construction ol" marriage articles
was that she should only tak<' a life estate, with icniainder
to the children m~ tenants in <(»nnMnn ( /A ».<.<//</• v. liossittr
(1863;, 14 Ir. Cli. I{. 24 7).

In Ctxian v. Ihitj'hlil (l.'s7t'. ). 2 < h. |). II, there were <»nlniiiry
marriage articles by whiili the lady'- fortune was agreed J,!|,i,.',',„.„,
to !>•• transferre(l to trustee-, "the tni-t- of the income "f ^^'f''"*

I ■ I • • II • '14 I «• I I I*'"''""""!

theref)f l»enjg tor the benelit ol the -;inl .Ague- I hlthehj ,.^,,i(,. „iii|ii

and d(j-e|)h < 'o^jan durine; th<-ir live.-, aad the tru>t.s of the ""»"'"«'■
w. ii A

354 Pakt VII. — ExKCi'TORY Sktti.kmkxts.

Art. 66. (.Mpit;!! l)t'iii<;' ['ov mid :iiii(Hiu>t tlii' cliildrcii acconliii;^" to
p. ,.>> the appointment of the saitl -I. C'otvan and A. Dutiii'ld or the
.survivor of tlicin. and in default of apiiointnicnt to the
children ecjuallv ; and in the event of thei-e Ix'in;;' no
children, and of the said J. ( 'oean boine; the survivor, the
trust property to be at liis absolute disposal." In iiivin<>;
jud;;ment in the (/'ourt of A])peal, Ba(;gallay, L.d.. made
the followinii; remarks: *' The mode of settling a wife's
fortune which is approved by the court is to <rive her the
first life interest for her separate use, then a life interest to
the husband : then (subject to the ])owers ^iven to the
husband and wife of a|)pointing- the fund among the issue
of the marriage) it is given e([ually to such of the chihlren
as being sons attain twenty-one, or being daughters attain
that age or marry ; or else to the children equally, with
gifts over in favour of the others if any of them being sons
die under twenty-one, or being daughters ilie under that
age and unmarried. If there is no child who being a son
attains twenty-one, or being a daughter attains twenty-one
or marries, then, if the wife survives, the fund is liniitetl
to her ; but if she ilies in the husband's litetime she litis a
general power of appointment over it ; and in default of
any exercise of that power, it is given to her next of kin
as if she had died intestate and without having l)een
married. Such being the form of settlement which the
court considers most expedient, what would it do as to
these articles ? fSo far as they expressly ]>r()vide for the
destination of the income or ca})ital, the court must yield
to them. But in construing them, it will have regard to
what is recognised as the most pro})er form of settlement.
Now here, as regards the income, the articles are mere
heads, and do not make a complete disposition of the
income during the lives of the husband and wife. It is
necessary to supplement them ; and I agree that they
ought to be carried into effect by giving the wife the first
life estate to her separate use, and she is therefore entitled
to the arrears of income. When we come to the provisions

Chap, I. — Marriage Articles. ;5r);j

for the chiKlixMK wo timl only general wonls which must Art. 66.

be supplemented. I cannot entertain any doubt as to pam. (2).

what the court would have done it" this had been a suit to

have a settlement executed in pursuance of the articles,

instead of a suit to rectify the settlement when made.

The settlement would either have made the interests of the

children contingent on their attaining twenty-one being

sons, or being daughters attaining that age or marrying ;

or it would have contained limitutions over of the shares

of sons dying under twcntv-one, and of daughters dying

iHider that aije and unmarrietl. The husband then could

not take as representative of a ciiild who died an infant

and unmarried, and the articles contain no pretence tor

saying that there was any direct gift to him in the event

of his wife surviving him.

Since Cogaii v. JinfjiehU supra, was decided, it has been Additions
held that the wife's life estate ought to be irit/iont jtourr provisions

of aittiripation (Re ParvoU, Walter v. Parrott (188(1), "'"^'-'i" I'^c^'^t

' , , . I'asus.

'.V.\ ( 'Ii. 1 >. 274) : and tliat (smi/'le) the power of ap[)oint-

ment among issue should be given to the spouses and the

£Hi'i'fror (if them (J'e (Joayi/i, (joicau V. (rowaii (1880).

17 < h. 1>. 77^). antl that the settlement ought to contain

the usual j»ow»'rs of advancement (maintenance being now

implied ijy statute) and a power of ap|i<>intment by will l»y

the ladv in default of issue, with the usual limitations to

her next of kin in default of a|i|)ointment in the event of

her predeceasing the hu>luuid : and to herself absolutely

in the event of her suivi\ing liini. See J\e J'armtt,

W'alttr V. /'arroll, su/ini, and .\a.^h v. Allen (l.S8|t),

4-2 cii. I). :)i.

It bar- recently been held, that \vb<rf marriage article> AfttT-

,,11 a<t|iuiod pro-

provided for ".such other agr(Mnnnt> claii-i^ and pro- pert v <1uuho

visions as are usually iuM-ried in s.-ttlemmts ol" a Ijk,. ""t ""i'l«'-'l

nature," a covenant to >ettl<' al'tcr-actpiired pro|i<'rty of the miiili-H.

wife could not l»e insi.sted on ( lu MaUili/, Maildj/ v. Mu/t/i/,

[lUOl] 2 <h. .^2(1).


Part VIT. — Exkcutory Settlements.

Art. 66.

Para. (3).

of executory
trusts in
wills where
marriage is
not referred

Direction to
settle upon

of executory
trusts in wills
marriage of
legatee is
referred to.
Cases nf

Pauaohaimi {'.\).

Ill the c'li-c of (lii-('ctioiis to settle :i le;j,:iey euiitaiiiei! in
a w ill. ir is obvious that the same presumption iu favour
of issue, or even of a husband, will not arise as in the case
of niarriao;e articles. Therefore, where a testator gave
.•£1500 to trustees, u}>on trust to lay it out in the purchase
of lands, and to settle such lands to the only use of M. and
her children, and if 31. died without issue, '"the land to be
divided between her brotlici's and sistei's then living'."" it
was held that this oave M. an estate tail (''Sa'('ctaj>/>U' v.
Bi/,(lon (l(iit2), 2 Ver. 536).

So where a testator directed ihat his (lan;iht('rs' shares
should be '' settled upon themselves strictly," it was held
that the income of each daughter's share should, during
the joint lives of herself and husband, be paid to her for
her separate and inalienable use ; and, if she die(l first, then
her share should go as she should by will appoint, and in
default of appointment, to her next of kin (exclusively of
her husband) ; an<l if she survived, then to her absolutely
(Loch V. HiKjlen (18tI7), 4 Eq. I'l'l). A dir(>ction to strirtbj
settle real estate does not imply that the tenants for life
are to be dispunishable for waste (Stanlei/ v. Coiilt hurst
(1870), 10 Eq. 259).

There is, however, no difference between the construc-
tion to be put on an executory trust created by marriage
articles and on an executory trust created by will, ej-re/it
so far as the former [hi/ its r^rij nature) fuviushes more
empliaticalhj tlie means of ascertain/ }Uf the intentions of
those loJio created the trust (^Sackville -West v. Lord
Ilohnesdale (1870), L. R. 4 H. L. 543). Consequently
where the direction refers to a settlement on marria(je, or
in any other way shows an intention to Ijenefit the
issue of the legatee, effect will be given to it. Thus, in
Re Spicer, Spicer v. S/jicer (IDOl), 84 L. T. I'J.j, the
direction in the will was that no daughter of the testator
should be entitled to receive her share. l)ur onlv the income

("HAP. I. — Directed by Wills. 3.j7

thereof", witli ]»o\ver to dispose of the princijial l)y will it' Art. 66.
nnnuinieil. V>\n in the t'l-ent of am/ daiio/iter marniimK p^jj .-jv
then the testator empowered his trustees to see that her
share was "duly antl properly settled upon her by deed,
so that the same should be preserved tor her separate use
independently of her husband." Buckley, d.. in the
course of his judgment (after (juoting the direetion ). said :
" I have beyond that to give effect to the words • didy ami
properly settled.' That means the subject of a proper
settlement, and those wonls are in comiection with this :
' but in the event of any such daughter or female issue
marrying.' So that the parties cannot avail themselves
of the doctrine in Loch v. Baijleij, sujo'u, where the words
were merely ' the girls' shares to be settled on themselves
strictly,' and there wen* no words rcdating to man-iage.
It seems to me . . . that the shares on mai'riage
ought to be settled on the footing of giving each ihiughter
a life estate for her separate use, without power of antici-
pation, with no life estate to the hushaitd .• and there will t)e
the usual trusts in favour of children, and the ultimate
trusts usual in a settlement of the wife's property."

On >iMn'lar grounds, where a testator deviseil re;il estate to Casus .if real
trustees njion trust, n/ion fhr ha/'jun/iKi n/ the >»'H'i'''''."' O^ \\\y^y^\^.^\ \_^^\H'

his grand-d;iughter, to ronrcif the estate to the use ol' her ■'^I't tied on
,. . . , . , ,' ,.1 I , 1 ,. 1... inarriaiie.

tor lite, with remainder to the us*- of lier husliand tor lite,
with n'Miaindfi- to the is-ue of her liodv. with remaimler-
over, it was Jield. that though the grand-da lighter would
have taken an estate in tail had it been an executed tru>t.
vet as the tru<t w:i-< executory, it \va< to be exei-iite(l in a
more caret'ul and accurate manner ; and that a-; the
testator's intention was t(» j.rovide for the cliildien of the
marriage, that int<Mitioii woulii be be^t <airi<(l <iiii by a
convevanci' to the grand-tiaughter for lil'r. ujih reniainder
to her husbainl for iif«*, with remaiiidt-r tu her lir>i and
otlicr sons in tail, with remainder to her daughters (Lord
(ilfiwrrhf V. Jinsrillr ( 17:',:'.). -' W. A T. L. < '. 7t;;'.).



Art. 66.

Para. (.S).

oil a man's
niarriagi' to
si-ttlf ill strict

on a man's
marriage to
settle ])er-
sonal estate
on liis wife
and cliilflron.

I )epartures
from the
form where

A Irstnloi- (lr\i-('(l i'(>;il estate to Ills SOU. and (lircctcd
that /// tlw crtiit of /i/s son mori'i/liHj, it slioiilil he put in
strict settlement. The son tiled without havino; executed
any sen lenient, leaxin^ a widow and three dani4liter>,
a tdUi'th lia\iiie- jiredeeeased him. an inl'ant and s|iin>tei'.
( hie ot' the three infants dieil alter the >on. aUo an iid'anl
and >|iinsrer : — Held, that the |)ro|)er settlcinenl \va^ a
jointure for the widow, and snhject thei-eto the |ii-(i|iei-tV
sliould l)e lu'ld in lru>t foi- such one or more of the two
infants as should attain twenty-ono or mari-y in fee
simple {Wr'iqlit V. Il'/vy///. [I'.IOi] 1 1. \{. ;',»;();.

Ao-ain. whei-e a fund was he(|neathe(l to a man until
marriao-e. and then to he settled on his u-ife (iinl r/iililreii,
and in default of issue to revert to the testatrix's estate,
the court directed that the settlement >lioidd contain a
limitation of the fund to the hnshand for life, with
remainder to the wife for life, with remainder to the
cliildren as the hushand and wife >hould i<iintlv appoint,
with remainder as the survivor should 1)\- tlrctl or will
appoint { Init if the hushand were survivor, he was to have
power to appoint amongst his children hy a lutui-e
marriaoe), with an ultimate remainder to all the children
of the husband attaining twenty-one, or in the ease of
daughters, marrying under that age : and in default of
children the fund to fall into the testatrix's residuarv estate
(Re Goican, Goican v. Goioan (1<S80), 17 ( 'h. D, 77<S,
where the form of order is given showing the limitations
in full).

Where, how-ever, there are indications that the settlor
contemplates a different form of settlement to any of those
above indicated, his wishes will have effect given to them.
Thus, in Re Rarrotf, Walter v. /'orrnti (1886), 33 Ch. 1).
274, a testator had bequeathed as follows : "' To my
daughter A., wife of M. AV., I bequeath ,^1 (»,()()(>, this
amount to be settle(l upon her foi- her life, ami to be
invested for her in oood securities, in the names of two or

Chap. I. — Directed by "Wills. 359

more trustees. At her ileath, ,4'8,000 of the :ibove sum to Art. 66.
be divided equally amongst her children, and the remain- pj^,.,^ i-^\
ing £2.000 to be given to her husband, it' living ; if
deceased, then the whole amount is to be equally divided
amongst her children." It was held by the Court of
Appeal that, on the construction of the will, the settle-
ment must be so framed as to make the contingent gift of
A'2.000 to "her husband if living." apply only to ]\I. W..
and not to any future husband (see supra, p. OG &t .Nvy.,
and Aa.*/i v. Alien (1889), 42 Ch. D. 54, where on the
construction of the will, the decision was contra), and
also, so as to confine the trusts in tavour of the daughter's
children, to her children by him. It was further held,
that the ;«ettlement ought to be framed so as to restrain
the daughter from anticii)ating the income, and so as to
make the fund divisible only among children who should,
being sons, attain twenty-one, or, being daughters, attain
that age or marry. It was further held, that the settle-
ment ought to contain the usual powers of maintenance
and advancement, and a power of appointment by the
daughter in default of children, with the usual limitations
to herself or next of kin in default of appointment, but
not any power of appointment among the children, as
such power would be inconsistent witii the direction for
cijual di\i^ioii.

The :il)Ove examples fttr the m<)>t part relate to cases Cases wliere
where th<; testator eontempiates the marriage of the |^|jj^|!|^^'^^^, ^^^^^
legatee or devisee. l»ut the same liberal construc-tion lefc-iml

... , . ..... I , lO tluTC

Will oe ;_MVeii to 111- (liieet lull-, wllerc. fur iiiii/ (i/lnr /va.vo// mi, utii,.,.
aji/'Ureut on t/w fare «/' tlu- irill, a teeliiiieal interi)refat ion ""'"" ''ti'iiis .<f

1 !• " I • ' • • 'IM • 11 I- mtflltlnli to

would di.sappoint his nitcntions. lliu-, in the leading i„.,u-iit i>sur
case of .SV/r/7/^-nV.v/ v. Visro,,,,! Ilnlnosdalr ( 1 .sjo), "f «K;viM.v or
L. \{. 1 H. L. 51.;. Lady .\.. by a codicil to li.i- will.
deelared li'-r iiitiMiiion tn lie to give certain real and
per.-onal projieitv lo tni-tci-. in tni-t to settle it "in a
course ot I'litail to eorre-poiid " (a- near a- iiii;:lit be)

3G0 Part VII. — Executory Settlements.

Art. 66. with the limitations of tlic rmroiiy of liucklmrst. in >uch
Para (3) niaiiiuT as the trustees shoiiltl consider |)ro|)er, or as their
eomisel should advise. The harony was limited to Lady
IX' la ^\'ar^ for lite, with remaiiidei' to \\. her second
son and the heirs male oi' his hody, with remainder to the
third, lourth, ami other sons in like manner. It \va^ held
that the property ou^ht not to be settled upon K. in tail
like the barony, but ought to be limited in a course of
strict settlement to R. and other younger sons of Lady
De la AVarr for their resj)ective lives, with remainder to
their sons successively in tail male, in the order mentioned
in the jiatent whereby the harony was created. And Jjord
(/helmsfoud said: "The best illustration of the object
and purpose of an instrument t'uiiiishing an intention in
the case of executory trusts, is to be found in the instance
of marriage articles, where, the object of the settlement
being to make a provision for the issue of the marriage,
no words, however strong (which in the case of an
executed trust would place the issue in the ]>ower of th<'
father), will be allowed to prevail against the implied
intention. So, us Sir W. Grant said, in BlacLlnim v.
Stahles (1814), 2 V. & B. 3G7, 'in the case of a will if it
can be clearly ascertained from anything in the will that
the testator did not mean to use the expressions which he
has emjdoyed in their strict technical sense, the court, in
decreeing such settlement as he has directed, will depart
from his w^ords to execute his intention.' . . . There
are cases of executory trusts in wills, where the words
• heirs of the body ' have been made to bend to indica-
tions of intention that the estate should be strictly
settled ; and a direction in a will, that a settle-
ment ' shall be made as counsel shall advise,' has been
held sufficient to show that the words were not intended
to have their strict legal etfect (Bastard v. Frohi/ (1788),
2 Cox 6). . . . It appears to me that the words of
the codicil express an intention that the baron v and the

Online LibraryArthur UnderhillThe principles of the interpretation of wills and settlements → online text (page 35 of 42)