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A selection of leading cases in equity, with notes (Volume 2) online

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as so much depends upon the cir-
cumstances of the parties ; but, in
general, notwithstanding the con-
sent of a female ward and her
guardians {Gordon v. Irwin, 4 Bro.
P. C. 355, Toml. edit.), her pro-
perty will not be settled entirely
upon the issue of her first mar-
riage : as provision will be made
for her issue by a future marriage ;
see Winch v. James, 4 Ves. 386 ;
Wells V. Price, 5 Ves. 398 ; Millet
v. Roivse, 7 Ves. 419 ; Bathurst
V. Murray, 8 Ves. 76 ; Halsey v.

Halsey, 9 Ves. 471 ; Long v. Long,
2 S. & S. 124 ; Rudge v. Winnall,
11 Beav. 98. But it seems, where
there has been an antenuptial
settlement upon a ward under
age, if, after she attains her ma-
jority, she comes into Court and
consents to it, the Court may
confirm it without a reference :
Leeds v. Barnardiston, 4 Sim.
538, and Re Anne Walker, L. &
G. t. Sugd. 326 ; Day v. Day, 11
Beav. 35.

In general, a female ward of
the Court tvhen of age may make
whatever settlement of her pro-
perty she pleases ; she can, how-
ever, only effectuate this by con-
senting personally in Court, or
under a commission for the pur-
pose. Where this is not done,
her property will not be dis-
charged from the protection of
the Court, except by the order of
the Court ; and, consequently,
until such proceeding, she and
her property must always be con-
sidered as having the protection
of the Court still around her. Per
Lord Eldon, in Austen v. Halsey,
2 S. & S. 123, n., in which case
his Lordship referred it to the
Master, to inquire whether a
settlement made before mamage
upon a ward who had attained
twenty-one was a proper settle-

Where proposals for a settle-
ment on the marriage of a ward
have been entertained by the
Court, the parties will not be
allowed to defeat the intention of



the Court, by deferring the mar-
riage until the ward conies of age.
Thus, where a female infant had
been made a ward of the Court,
and in contemplation of her mar-
riage, terms for the settlement of
her property, and that of her in-
tended husband (which were for
the benefit of the intended hus-
band and wife and the issue of the
marriage), had been approved by
the Master, and his approval had
been confirmed by the Court, it
was held not to be competent to
the husband and wife, by delaying
the marriage till after the wife
had attained her majority, and
entering into fresh settlements, to
defeat the settlement of the Court :
Hobson V. Ferraby, 2 Coll. 412.

So, likewise, in Money v. Money,
3 Drew. 256, proposals of mar-
riage with an infant ward of the
Court, not being such as the
Court would approve, were made
six months before her marriage.
The parties waited till she at-
tained her majorit}'^, and a few
days afterwards, a settlement was
executed pursuant to new pro-
posals made a very short time
before her majority. The terms
of the settlement appear to have
been pursuant to the instructions ;
and, in fact, the wish of the
ward's mother, and were such
as the Court would not have ap-
proved of. It was held by Sir
R. T. Kindersley, V. C, that the
jurisdiction of the Court over the
ward had not ceased, and ordered
the settlement to be rectified, so

as to make it what the Court,
looking at the position of the
parties would have made. See
also Re Donne, 2 Moll. 490;
Biddle v. Jackson, 26 Beav. 282 ;
Cook V. Fryer, 1 Hare, 498.

An improper settlement, though
the marriage takes place after a
female ward comes of age, will be
rectified, unless she consent to
it. Thus, in Long v. Long, 2 S.
& S. 119, a lady entitled to a fund
in Court married the day after she
came of age. After the marriage
a settlement of her property was
made on her and her husband for
theii' lives, and on the children of
the marriage absolutely ; but the
wife never consented in Court to a
transfer of the fund to the trus-
tees. After the husband's death,
and the birth of a child, the set-
tlement was, at the suit of the
wife, declared void, because it
contained no provision for a
second marriage, and because the
rights acquired by the husband
were, on account of the precipita-
tion of the marriage a surprise
on the wife. In the case, how-
ever, of Re Hoare^s Trust, 4i Giff.
254; 11 W. B. (V. C. S.) 181.
Sir J. Stuart, V. C, refused to
rectify a settlement by inserting -a
provision for children of a second
marriage, observing that the hus-
band had married upon the faith
of the settlement as it stood.

An improper settlement will be
varied or rectified b}' the Court
after the lapse of a considerable
length of time, subject neverthe-



less to the due protection of the
rights and interests of persons
•who have come into esse since the
time of the marriage {Cave v.
Cave, 15 Beav. 227). So, where,
on the marriage of a ward, no
clause against anticipation was
attached to her separate life estate
which she afterwards incumbered,
it was held by Sir J. Romilly,
M, E,., that the settlement could
not be rectified to the prejudice
of her incumbrancers : Blackie v.
Clarke, 15 Beav. 595.

Where a female ward of the
Court marries after she is of age
the Court cannot, except in such
cases as have been before men-
tioned, enforce a settlement : {Long-
bottom V. Pearce, 3 De G. & Jo.
545, n. ; White v. Herrick, 4 L.
R. Ch. App. 345, overruling
Biddies V. Jackson, 26 Beav.
282 ; 3 De G. & Jo. 544) ; but
if any property belonging to her is
in the power of the Court, it will
not part with it, unless the wife
waives her equity to a settlement.
See Lady Elibank v. Montolieu, and
Murray v. Lord Elihank, ante.
Vol. 1, p. 464, 471, and note.

Where the marriage takes place
in contempt of the Court, the na-
ture of the settlement will de-
pend in a great measure upon the
fortune, position, and conduct of
the husband. If the case be that
of a beggar marrying a ward of
the Court for the sake of her for-
tune, the Court is in the habit of
not permitting him to touch that
fortune, which was his object ; but

it has never gone the length, that,
if this species of indiscretion has
occurred, which the Court must
punish by commitment, but which
brings together persons of equal
rank and fortune, and as con-
siderable a settlement is made by
one as by the other, of giving no
attention to an equivalent provi-
sion made by the husband for the
wife and issue : Ball v. Coutts, 1
V. & B. 303.

The almost invariable rule in
modern practice, in case of a mar-
riage with a ward, in open con-
tempt of the Court, is to frame
the settlement in such a manner
as to exclude from it altogether
all marital estate and interest, and
the rule would only be departed
from in cases where it could be
clearly shown that the departure
would be clearly for the benefit
of the lady: Wade v. Hopkinson,
19 Beav. 613, 619; Hodgens v.
Hodgens, 4 C. & F. 323; Baseley
V. Baseley, lb., p. 378, n. ; Field v.
Brown, 19 Beav. 176; Field v.
Moore, 7 De G. Mac. & G. 691.

Where the husband was igno-
rant at the time of the marriage
that his wife was a ward of the
Court, and there are " alleviating
circumstances" attending the con-
tempt, the settlement will be
more favourable to the husband :
Richardson v. Merrifield, 4 De
G. & Sm. 161.

The mere fact, however, of mar-
riage with a female ward of Court,
without the Court's consent, will
confer upon the Court a jurisdic-



tion to decline, during the joint
lives of the husband and ivife, to
part with a fund in its own power
and custody belonging to the ward,
even upon the appKcation of the
husband and wife and upon the
consent of the wife in Court, until
such settlement should have been
made thereof as should appear
advisable and proper under the
circumstances of the case {Martin
V. Foster, 7 De G. Mac. & G. 98 ;
Biddies v. Jackson, 3 De G. & Jo.
544 ; 26 Beav. 282 ; Gijnn v. Gil-
hard, 1 Dr. & Sm. 356). It seems,
however, to be doubtful whether
the Court in such a case would
have power to correct or enforce
a settlement against the wishes
both of the husband and wife :
Martin v. Foster, 7 De G. Mac. &
G. 98, 101. See Vol. 1, pp. 515,
516, and cases there cited.

It may be here mentioned that
when a proper case is made out,
the legislature has annulled mar-
riages where infants have, by
fraud, misrepresentation, or vio-
lence been induced to go through
the ceremony of marriage. See
cases collected in the report of the
proceedings in Field's Marriage,
annulling Bill, 2 H. L. Cas. 48.

The Court has no jurisdiction
to compel a male ward, with whom
a marriage had been solemnized
without its consent, on attaining
his full age to execute a settle-
ment of his estate so as to exclude
his wife from all participation in
the property: In re Murray, 3
D. & War. 83.

A settlement made by an infant
ward does not, independently of
the Infants' Settlement Act (18
& 19 Vict. c. 43), derive vahdity
from the sanction of the Com-t,
which it would not otherwise
have. Thus, the real estate of
an infant ward would, unless she
attained her majority, descend to
her heir, notwithstanding it was
agreed on her marriage to be put
in settlement : Savill v. Savill,
2 Coll. 72. So where a man
married a female ward of the
Court without leave, and under
an order of the Court a settlement
was afterwards made, by which
the husband covenanted to con-
vey all the real estate of the wife
to trustees upon trusts, excluding
him and giving his wife a jjower
to devise. It was executed by
the wife, but not acknoicledged by
her. On her death during cover-
ture, having made a will devising
the property, it was held by Sir
John Romilly, M.R., that the
wife's heir-at-law* was not bound
b}'- the incomplete settlement,
and that therefore her will was
ineffectual to disinherit him :
Field v. Moore, 19 Beav. 176;
and see Barrow v. Barroiv, 4 K.
& J. 418.

As a man on marriage be-
comes entitled to a woman's per-
sonal estate not settled to her
separate use, his covenant to
settle it will be bmding upon her
as well as upon him. But in a
case where a female ward, en-
titled to leaseholds for her sepa-



rate use, made a settlement mider
the order of the Court, giving a
power of sale to trustees, it was
held, that a sale made by the trus-
tees during her minority was not
valid : Simpson v. Jones,, 2 Russ.
& My. 365. However, by the
Infants' Settlement Act (18 & 19
Vict. c. 43, explained by 28 &
24 Vict. c. 83, infants are now
enabled, with the approbation of
the Court of Chancery, to make
binding settlements on marriage
of their real and personal estate,
whether it be in possession, re-
version, remainder, or expectancy.
See Morgan and Chute's Chancery
Acts and Orders, 233, 4th edit..
Re Olive, 11 W. R. (V. C. K.) 819.

The Court has no power under
18 & 19 Vict. c. 43, to make a
settlement after marriage upon an
infant. When, therefore, an in-
fant married woman, not being a
ward of Court, filed a petition for
a settlement of her property, it
was held that the Court had no
jurisdiction to ol'der a settlement
to be made. In re Potter, 7 L. R.
Eq. 484. See remarks on Wort-
ham V. Pemherton, 1 De G. & Sm.
644, ante, Vol. 1, p. 486.

As to confirmation by a woman
after the death of her husband of
a voidable settlement made upon
her marriage, while an infant. See
Davies v. Davies, 9 L. R. Eq. 468.

A settlement made with the
sanction of the Court on the mar-
riage of an infant, of certain funds
alleged to represent the infant's
share under a will, does not

operate as a confirmation of prior
dealings by the trustees of the will,
so as to preclude the cestui que
trust under the settlement from
filing a bill charging the trustees
under the will with breaches of
trust : Zambaco v. Cassavetti, 11
L. R. Eq. 439.

Where a marriage has been
solemnized between parties, one
or both of whom is or are under
age, hy a false oath or fraud, the
parent or guardian whose consent
has not been obtained, may, by
information in the Court of Chan-
cery, obtain a forfeiture _ of the
propert}'^ the ofi'ending party takes
by the marriage, and the Court
has power to make a settlement
thereof (4 Geo. 4, c. 76, s. 25),
any agreement or settlement by
the parties inconsistent with
that to be made by the Court
being void (sect. 24) ; and the
principle upon which the Court
acts in carrying into efi"ect the
directions by the act is to pre-
vent the ofi'ending party from de-
riving any pecuniar}^ benefit from
the marriage, as far as may be,
without prejudicing the pecuniary
interests of the innocent party and
the issue of the marriage. See The
Attorney-General v. Lucas, 2 Ph.
753 ; Attorney -General v. Read,
12 L. R. Eq. 38 ; and see Attor-
ney-General V. Mullay, 4 Russ.
329 ; Attorney- General v. Mullay,
7 Beav. 351 ; Attorney -General v.
Severne, 1 Coll. 313. And in a
recent case where the fund in pos-
session was small, the Court, in-



stead of ordering a settlement,
after declaring the forfeiture, di-
rected the trustees to transfer the
residue of the fund into Court,
and declared the trusts : Attorney-
General v. Clements, 12 L. K. Eq.

As to form of order declaring
trusts of the funds both in posses-
sion and reversion, see lb. 36.

VIII. Maintenance.'] — The
Court of Chancery has ample juris-
diction with regard to mainten-
ance, in all those cases where in-
fants have property (Wellesley v.
Beaufort, 2 Russ. 21) by applying
the income for their benefit, and
accumulating the surplus {Welles-
ley V. Wellesley, 2 Bli. N. S. 133)
even although they may be luna-
tics {Volans v. Carr, 2 De G. &
Sm. 242) ; and guardians or trus-
tees whose dut}' it may be to see to
the maintenance of an infant ac-
cording to his rank, fortune, and
expectations will, in aU cases when
there is any difficulty, act wisely
in applying to the Court, and
acting under its du^ections.

The Court itself will grant
maintenance out of rents and
profits {Dormer v. Dormer, Rep.
t. Finch. 432 ; Re Hoivarth, 8 L.
R. Ch. App. 415), or out of the
income of personal property, pro-
vided the fund be clear. Thus,
when it is doubtful whether any-
thing is coming to a residuary
legatee, who is an accounting
party, nothing will be allowed him
for maintenance {Warter v. ,

13 Ves. 92, 94) ; but where the
Court can see clearly that there
will be a clear fund, the residuary
legatee will have an allowance for
maintenance in the meantime :
lb. and see Wear v. Wilkinson, 13
Ves. 93, cited ; Jervoise v. Silk,
Geo. Coop. 52 ; Coster v. Coster,
1 Keen, 199).

Maintenance, moreover, cannot
be allowed out of a fund unless it
be vested in possession, but it
must be remembered that a legacy
upon a contingency, if, for in-
stance, it be given to a person
when he attains a certain age, may
be vested by a direction on the part
of the testator that the interme-
diate interest is to be given to,
or to be applied for the benefit
of, the legatee. See Lane v.
Goiidge, 9 Ves. 225 ; In re San-
derson's Trust, 3 K. & J. 497,
503, 504, and cases cited in the
note to Hanson v. Graham, 2
Lead. Cas. R. P. 752 ; Spencer v.
Wilson, 16 L. R. Eq. 501 ; Fox
v. Fox, 19 L. R. Eq. 286.

So, where an infant has a vested
interest in a fund, he will, although
it is defeasible in a certain event
by a condition subsequent, be en-
titled to the interest, and there-
fore in a proper case to mainte-
nance thereout, until the happen-
ing of the event. See Taylor v.
Johnson, 2 P. Wms. 504. There
a testator bequeathed a legacy to
an infant, with a proviso that if
he died before twenty-one, then
the legacy should go over to
another, The Master of the Bolls



said, " The infant's death before
twenty-one will only defeat the
legacy from the time it happens,
consequently in the meanwhile, it
shall carry interest, at least, from
the end of the year after the death
of the testator." See also Shep-
herd V. Ingram, Amb. 448 ; Cha-
ivorth V. Hooper, 1 Bro. C. C- 82.
As a vested legacy, payable at
a future day, does not carry in-
terest until the arrival of that day,
no maintenance can be allowed
in the meantime {Descrampes v.
Tompkins, 4 Bro. C. C. 149, n. ;
Crickett v. Dolby, 3 Ves. 10) ex-
cept in the case of a residuary
legacy {Nicholls v. Oshorii, 2 P.
Wms. 419 ; Chaworth v. Hooper,

1 Bro. C. C. 81 ; Hawkins v.
Combe, 1 Bro. C. C. 335 ; Skey
V. Barnes, 3 Mer. 335). But
maintenance cannot be given out of
the income of a contingent legacy,
inasmuch as the interest must ac-
cumulate until the happening of
the contingency {Butler v. Free-
man, 3 Atk. 58 ; Bullock v. Stones,

2 Ves. 520; Ellis v. Ellis, 1 S. &
L. 1 ; Glanvill v. Glanvill, 2 Mer.
38 ; Gotch v. Foster, 5 L. E. Eq.
311) ; unless the non- happening
of the contingency can be provided

An important exception takes
place to the rules before laid
down, where a parent or a person
in loco jKirentis leaves to a child
or to children as a class {Incledon
V. Northcote, 3 Atk. 438 ; Brown
V. Temperley, 3 Buss. 263) ; who
are unprovided for, a vested

legacy, the payment of which is
postponed, or a contingent legacy,
for in such cases interest on the
legacy will be allowed as mainte-
nance from the death of the tes-
tator. (See note to Ashburner v.
Maguire, ante, p. 293, and cases
there cited.) Secus where the tes-
tator has made provision indepen-
dently for the maintenance of the
legatee (lb. and see In re George
an Infant, W. N. 1877, p. 94).

And upon the principle of com-
pensation, where there are equal
legacies to a class of children,
even with a direction for accumu-
lation, the principal, with the accu-
mulations, for instance, to be paid
at twenty-one, with survivorship
in case of the death of any under
that age to the others : the chance
of all taking or the survivor being
equal, the t^ourt takes the fund,
which belongs to all, and must go
to all or some of them, and main-
tains them all out of the interest :
Marshall v. Holloway, 2 Swanst.
436, and cases cited in note.

But this is said to be a rule of
Court, and does not enable trus-
tees so to apply the income when
the estate is not under adminis-
tration. In re Breed's Will, 1
Ch. D. 226. sed vide Franklin v.
Green, 2 Vern. 137.

But the principle cannot be ap-
plied where property is not given
absolutely to the children and the
survivor ; but in certain events
there is a gift over to a stranger.
Thus in Ex parte Kebble, 11
Ves. 604 (overruling Greenwell v.



Greemvell, 5 Ves. 194), a residue
was bequeathed to five infants,
with survivorship among them in
case of the death of any under
the age of twenty-one ; and, in
case all of them should die under
that age, the whole was given to
their sister, who took no interest
directly in that residue ; but a
legacy was given to her by the
same will, and in case of her death
under the age of twenty-one, that
legacy was given over to the other
five children. Lord EMon refused
an application of the five infants
for maintenance, there being no
direction for it in the will. " By
this will," said his Lordship, " five
children have this residue given
to them, with survivorship among
them, and the sixth has nothing
given to her in that fund, unless
all the five die under the age of
twenty-one. So the five would be
maintained at her expense, for she
has no interest in common with
them. Where is the difterence
between her and a mere stranger ?
She is not a legatee of this resi-
due with the other five ; but it is
given over to her as to a stranger,
only in the event of the death of
all the five under the age of
twenty- one ; and while it remains
contingent, she has no interest
with them. The circumstance that
she has a legacy by another part
of the will cannot alter it. If no
legacy was given to her, it could
not be contended ; for this has not
been allowed, except where all had
a chance and an equal chance, and

there is no instance of setting off
one legacy against another in this
way. There is no case in which
interest of property directed to
accumulate, has been applied to
maintenance, except where it was
one principal sum in which all
were interested." See also Er-
rington v. Chapman, 12 Ves. 20.

Nor will the j)rinciple be ap-
plied where j^roperty is not given
absolutely to a class of children
and the suiwivor; but in case of
the death of a child under a cer-
tain age there is a limitation to
the issue, who, for that purpose,
are strangers: see Ex parte Kehhle,
11 Ves. 606 ; Turner v. Turner,
4 Sim. 430 : see also Errington v.
Chapman, 12 Ves. 20 ; Ex parte
Whitehead, 2 Y. & J. 243 ; Parsons
V. Coke, 10 W. K. (V. C. K.)
641. Maintenance was, however,
allowed under such circumstances
by Lord Thurlow in Fendall v.
Nash, 5 Ves. 197, n. ; but this
case has been disapproved of by
Lord Eldon : 14 Ves. 203.

Nor will maintenance, if not
directed by the wiU, be ordered,
where the children making the ap-
plications are not all the persons
among whom the property is to
go: where, for instance, miborn
children may form part of the
class. In Sir Frederick Eden's
Case, indeed Lord Rosslyn allowed
maintenance ; but upon an appli-
cation to Lord Eldon for an in-
crease of the allowance, he ob-
serves, " I did not think myself
justified in following that, and re-



fused it, a^ those children might
he the persons to take the whole ;
but future children, then unborn,
might be the persons to take a
part of it : " Ex parte Kehhle, 11
Ves. 604.

In Lomax v. Lomax, 11 Ves.
48, a petition was presented for
maintenance out of the interest
of a legacy to the children of the
testator's daughter, when the
younger^t should attain the age
of ti^er^an'J^- I-iOV^Eldon, how-
ev/r, :' jfused the application.
"|Upon a legacy," observed his
>-T lordship, " when they shall attain
twenty-one, and to such of them
as shall attain twenty-one, is not
the meaning, that such as do at-
tain twenty-one shall have it at
that time ; and what right has the
Court to give the interest before
that time ? If aU die under
twenty-one, and a child not yet
in existence should come into
existence, and attain that age,
that child clearly would take the
whole, interest as well as prin-
cipal. Therefore, I may give it to
these children, who may never be-
come entitled to it. In the case
of Sir Frederick Eden's cliildren,
I refused to increase the mainte-
nance, or even to continue it, under
an order made by Lord Rosslyn.'"
The application was renewed, but
Lord Eldon refused it, saying,
" The interest could not be given
for maintenance, in the face of
the will."

However, in Haley v. Bannis-
ter, 4 Madd. 275, a testator di-

rected that the dividends of stock
should accumulate until one of the
children then born, or thereafter
to be born of his daughter, should
attain twenty-one ; and upon his
or her attaining that age (if there
should be only one child who
should attain that age), his execu-
tors should transfer the whole to
such only child ; and if more than
one such child were then living, to
transfer to such children one equal
part of the said stock and accu-
mulations, in proportion to the
number of such children then
living. The residuary personal
estate was given upon the same
limitations. Upon an application
during the life of the father and
mother. Sir J. Leach, V. C, held,
that the children were entitled to
maintenance. " I take," said his
Honor, "the principle to be, that
wherever the children have a com-
mon interest on a fund, the in-
come of the fund, if necessary,
may be applied for their mainte-
nance. In this case, children born
or to be born have a common inte-
rest ; and therefore the income of
the fmid, if necessaiy, may be ap-
plied to their maintenance. So, in
Errat y. Barlow, although no order
for maintenance was made by Lord
Eldon, where the interest of a le-
gacy charged upon real estate was
given in trust to the younger chil-
dren of the testator's daughter, to
accumulate during their minority,
and to be payable equally among
them at their ages of twenty-one
(see 14 Ves. 202), yet Sir William



Grant, M.R., it seems, afterwards
ordered it upon an ex parte ap-

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