Webster from the Register's Book (1): Lady Webster, having a power of appointment among younger children, which she had partly executed, by her Will appointed the remaining fund, amounting to 30,000l.; giving to Lady Thomas only 1007.; and to three other children 500l. each: all those children having been before properly provided for on marriage, or otherwise, Lady Thomas having received 20,000l., on that ground the Lords Commissioners established the appointment. Mr. Richards, Sir Samuel Romilly and Mr. Trower, for the Defendant Henry Caslon, in support of the Decree. The Lord CHANCELLOR [ELDON].-This is represented as an appeal, not only from the Decree, pronounced in this cause, but also from three other judgments at the Rolls, in the cases of Butcher v. Butcher (2), Mocatta v. Lousada (3), and Dyke v. Sylves ** ter (4): an appeal in substance from the doctrine, which the Master of the Rolls thought fit to express, as I collect it from one of those cases in the following terms (5). [* 17] "Independent of circumstances, being still unable to discover any rule, by which I can ascertain, what is an illusory share, I adhere to the rule I laid down in Butcher v. Butcher; that I will go as far as I am bound by authority, but no farther. Show me a case, in which a specific sum, or an equal proportion of what would be the share of each object of the appointment upon an equal division, has been held illusory, and I will in the same case make the same division: but, where I am deprived of the guidance, or freed from the compulsion of authority, I will not hold any appointment to be invalid upon that ground of objection." The same principle is expressed in the conclusion of that case in other words (6): "I must hold this appointment to be good; adhering to the rule I laid down in Butcher v. Butcher; for this sum of 331. 6s. 8d. is not the same specific sum, or the same proportion of the share of each child upon an equal division, that has been in any former instance held to be illusory." These principles, thus stated, the Master of the Rolls appears to have conceived to be, not in opposition to, but consistent with, former authorities; and I take it, his Honor meant to say this: "Show me a case, in which 507. has been held illusory, and a case in which that *sum is given; and, if in the latter case it is the same share of the subject as the 501. in the former, [* 18] I will hold it illusory: but if in the latter case the sum is 517., I will not: as I cannot understand the doctrine, I will follow it as far as it has gone, but no farther." (1) Register's Book, 1769, fol. 323; Feb. 23, 1770. (2) Ante, vol. ix. 282. (3) Ante, vol. xii. 123. If a series of uniform authorities, through a course of centuries, prove, that this Court has undertaken the difficult task of judging, whether the execution of a power was reasonable, or not, using expressions more or less vague and loose, as, that the share must be reasonable, fair, a substantial share, a provision; that the power is to be exercised consistently with justice; expressions, that must distress the mind of any Judge, required to act upon principles, so explained, I should pause on giving judgment, if bound to decide upon those authorities with reference to the principle, stated in these late cases, now before me; which in effect, (and it would be better to do it in words) destroys all the authorities; as no two cases will probably ever be the same. The sum of 501. being given in one family, and by one Will, it is difficult to imagine, that the identity of the sum, or the proportion, can afford the ground of determination in another family and upon another Will. The motives also, must be furnished by the same circumstances: whether good conduct or misconduct a provision by a parent or by a third person: circumstances, if the Court is at liberty to regard them, of utility: for instance, in the case of a power to appoint between two children, and the situation in life of one of them, the effect of the appointment, may enable him to do more for the other, than if he had an equal share. If therefore it is established, that the Court has this authority to consider, whether the execution of such a trust, or power coupled with a trust, is reasonable, it seems to me better to deny the doctrine at once, than to lay down a rule, that will destroy * it in effect; looking only to sums and figures; excluding circumstances, unless in the same case; and considering in each case, merely, whether the motives, and circumstances, by which the judgment was so regulated, as among the different objects, were the same. [* 19] It is necessary to state the facts of this case accurately; which were not before the Master of the Rolls as fully, as they are before me upon this occasion. The power is given by a deed, dated the 19th of June, 1751, executed on the marriage of William Caslon and Elizabeth Cartlick. No provision was made out of any property of Caslon's: but she was entitled to the sum of 25007., Old South Sea Annuities; which in consideration of the marriage was vested in trustees, upon the trusts declared (1): in effect for the husband for life: for the wife, if she should survive him, for life; and, after the decease of both for the children and grand-children, according to the appointment of the survivor of the husband and wife; and, for want of such appointment, equally among all, who should attain the age of 21. The effect is, that in the event, which happened, the property was vested in William, the surviving son; and would remain vested in him; unless the grandson attained the age of 21. William became a bankrupt; and remained so until April, 1795; when he obtained his certificate. I remark the circumstance (1) See the Report, ante, vol. x. 31. of his bankruptcy, as I am not prepared, and desire not to be understood, to hold, that in the execution of such a power the party exercises it fraudulently by giving a less share to a son, who is a bankrupt; and, I think, it would be difficult to maintain, that this, being the property of the mother, might not have been limited to the children, who had not become bankrupts during her life. The Will of the mother is to be considered together [* 20] with the effect of the deed, creating the power. It is necessary to look into that Will; to see, whether it affords any circumstances, if the Court can attend to them, which may assist in forming the judgment, whether under all the circumstances such an execution of the power is unreasonable in this sense; that it can be deemed illusory; and therefore a fraud upon the object of the power. It is difficult to say, there is any case decided, in which the sum of 100l. has been held illusory, as part of 2500l.: but cases have been stated, where the Court, proceeding upon the ground, that the execution was unreasonable, held sums, bearing full as large a proportion to the whole, to be illusory. There is however another way of considering it. It is obvious, that the execution of the very same power in the same manner, for instance, the sum of 100%. being given to one of the objects, and 2400l. to the other, may in one case be most unreasonable, in another most reasonable. If a father, having a power of appointing a sum of 2500%. between his two eldest children, and another sum of equal amount between his third and fourth, should under the former power give to his eldest son 100l., and 2400l. to the second, and by a similar execution of the latter power give 100l. to his third child, and the residue to the fourth, the eldest having on his marriage received 20,000l. from his father, the third having received nothing either previously or by his Will, the appointment of the identical sum, which in the latter instance ought not to have the name of a provision, could not in the former be considered unreasonable. [* 21] If the grandson had died during his minority, by the effect of the instrument, creating the power, with the instrument executing it, the surviving son would have taken, not only the 1007. under the appointment, but the 2400l. also, with all the intermediate interest; and in * considering, whether this appointment is illusory, with reference to the value, taken by each respectively, the value of that contingent interest in the bankrupt, depending upon the event of his nephew's death under the age of 21, must be appreciated. In that respect therefore this is not merely 1001. given to the bankrupt. If the testatrix had died, before he obtained his Certificate, and she must have contemplated as a possible case, that finally he might not obtain his Certificate, the assignees, taking the 1007., might also have sold that contingent interest in the 24007., with all the intermediate interest, in the event of the grandson's death under the age of 21. Those are not however the only interests, which the bankrupt has under these instruments. The testatrix also gives him 501. for mourning, and to his wife a legacy for mourning; and then disposes of what I conceive to be the bulk of her property, a letter-foundry, upon trusts; under which the bankrupt, his wife and children, take interests in a sum of 2000l., the amount of an accumulation directed, and in the produce of the sale of the whole property, given in the event of the death of the grandson Henry, under the age of 21, to the children of the bankrupt, and, in failure of children, to the bankrupt and the widow of the other son. With regard to this doctrine, it was well stated at the Bar, that a rule, which would leave mankind in a state of ignorance and uncertainty, how they are to act, when making Settlements or Wills, must have a very bad effect: but I have long thought it difficult upon the authorities to say, that there is any rule, which does not leave this subject under those difficulties. If a person, having a power of appointment among children, or other objects, in such shares, manner, and form, and at such times, as he thinks fit, is informed, [* 22] that he is to make a provision for all the objects, *a fair provision, that he is to give something substantial, a reasonable share, a share not illusory, to all of them, and that what is fair, substantial, reasonable, not illusory, is to be determined, not by his judgment, but by the discretion of this Court, he is not extricated from the difficulty, by which, executing such a power, he finds himself embarrassed. On the other hand I agree with Lord Alvanley, that if this Court has exercised such a discretion through centuries, has considered such a power as to be exercised bonâ fide, in this sense, that it is coupled with a trust, has always avowed, that it would exercise the discretion, whatever difficulties belonged to the doctrine originally, however unwelcome it would have been in the first instance, however reluctantly adopted, or however willingly disclaimed by the Court, it is difficult to say, that such a course of decision is not now to be followed. I do not understand, that the Master of the Rolls has said so: yet I doubt, whether what he has said does not in substance amount to it; and with all the deference, which is universally acknowledged to be due to him, I think it better to declare, that the Court will not abide by these decisions, than to over-rule them in effect, professing to abide by them. It is clear, that this doctrine has prevailed through a long course of years, but not without some fluctuation. I incline to the opinion, that Lord Nottingham's Cases did not establish it, and it is material, that those cases should be very accurately examined. I cite the case of Craker v. Parrott (1), as it appears in 2 Chan. Cases; as, though what Lord Nottingham is there represented to have said differs in some degree from the quotation from his own manuscript in the case of Butcher v. Butcher (2), the words of the Will are stated, and the arguments; and you are informed, that the Chancellor declined to proceed on any of the grounds, stated [* 23] (1) 2 Ch. Cas. 228. (2) Ante, vol. ix. 382. at the Bar. The case arose upon the Will of a citizen of London, declaring, that the third part of the residue of his estate, which he had power to dispose of, he entrusts his wife with during the time she shall continue his widow; and in case she shall remarry, he wills and desires her to give unto his children the remainder of his estate according as she shall think fit; and, as to the first third, he had himself stated, that it was due to his children equally. From that I should infer, at least, that it does not necessarily follow, that he meant equality as to the last third; over which he gave the power; having previously had equality in his contemplation. The conclusion in the arguments at the Bar, as to what the father, if asked, would have done, when the father was in his grave, is not very satisfactory. The Report states, that the Lord Chancellor said in effect that he went upon other reasons than were touched on at the Bar: he considered not the case as matter of power, but as a trust in the wife; which was to keep the children in obedience to her, while a widow: but when she should marry, it was likely, that the reverence of the children would not be so much as before; and therefore, though he trusted her for the children equally before, yet, when she should marry, he seems to give her a more arbitrary power: but that doth not make the children rightless. From that passage it is not easy to deduce any principle, so satisfactory as to be attributed to Lord Nottingham. I cannot determine, whether he meant the trust implied; or construed the Will as expressing a trust; in which case there could be no question upon the execution of a power. I should have great difficulty to say upon that Will, that the testator had expressed a trust. If that was the ground, I should have understood the Will differently: the difference consisting, not in the principle, but in its [* 24] application. With regard to the quotation in the case of Butcher v. Butcher(1), which I take to be Lord Nottingham's words, from his own manuscript, speaking with all humility, I should have found it very difficult, construing that Will, to say, the wife was not entrusted with a discretion; because there was no convenience in trusting her: the only question in judicature being, not upon the convenience, but whether she was entrusted with the power. As I read the Will, whether convenient, or not, she was entrusted with that power; and, speaking with the same humility, I could not have declared in judg ment, that it seemed to me very apparent, that the true meaning was an equal division. If however that was Lord Nottingham's opinion, there could be no question, whether she was entitled to make an unequal division, or as to the execution of a power. This appears the more strong in the Case of Gibson v. Kinven (2); which I collect from the Register's Book; as stated in the very valuable edition (3) of Vernon, lately published. It is very useful (1) Ante, vol. ix. 382. (2) 1 Vern. 66. (3) Edition by Mr. Raithby. |