particulars belonging to the wife, and the inference seems irresistible that they did not intend to bring this particular fund into settlement. V. C. W. 1871-2 In re CLINTON'S TRUST: FUND. THE SAME: Further, the fund is money which has arisen from the sale of real estate. It could not have been affected by the covenant, HOLLWAY'S during the coverture, unless the estate had been sold; nor, secondly, unless the mother had died; nor, thirdly, unless the fund had been actually received. Can it be imagined that the parties had these contingencies in view, and intended it should depend upon their happening whether the fund should or not be affected by the covenant? The settlement must be construed like any other instrument, The Court will endeavour to find out what the intention of the parties was. It must be admitted that the cases are not all reconcilable or satisfactory. [They cited, on the general construction of the covenant, Hoare v. Hornby (1), Otter v. Melvill (2), Atcherley v. Du Moulin (3), Wilton v. Colvin (4), Archer v. Kelly (5), and Dering v. Kynas ton (6); and, on the nature of the fund, May v. Roper (7) and Briggs v. Chamberlain (8).] The case of Franks v. Bollans (9) having been mentioned by the Vice-Chancellor, it was stated that since the decision of the Lords Justices the case had, in view of an appeal to the House of Lords, been compromised. Mr. Higgins (Mr. Dickinson, Q.C., with him), for the Respondents (the trustees of the settlement and the children of the marriage) on the first Petition : The property which has produced this fund is bound by the covenant. The words of the covenant are very large; they are"gift, descent, succession, or otherwise howsoever become entitled (1) 2 Y. & C. Ch. 121. (4) 3 Drew. 617. (5) 1 Dr. & Sm. 300. (8) 11 Hare, 69. (9) Law Rep. 3 Ch. 717. FUND. V.-C. W. 1871-2 In re CLINTON'S TRUST: FUND. to;" and they refer to "any real or personal estate, property, or effects." In Grafftey v. Humpage (1) the words of the covenant were in case the lady or the husband, in her right, should at any time HOLLWAY'S during the coverture succeed to the possession of or acquire any property real or personal, by devise, descent, bequest, or otherwise, and they were held to include a reversionary interest, which fell into possession during the coverture. THE SAME: In Blythe v. Granville (2) two sums of stock of which the lady was possessed were settled upon certain trusts, and after a discussion upon the meaning of the words "become entitled," the ViceChancellor said that they meant "either in possession or in reversion," and held that the stock was bound by the covenant. Ex parte Blake (3) was a stronger case in favour of the Petitioners than the present, and yet it was held that the property of the lady was bound by the covenant. There was in the present case a change of interest during the coverture which brought the fund within the words of futurity in the covenant, and so there was in Maclurcan v. Lane (4), where the word "accrue" was much observed upon. In Re Hughes' Trusts (5) there was a covenant similar to that in Grafftey v. Humpage, for the words of it were, "gift, descent, succession, or otherwise become entitled to;" and it was held to include reversionary interests in consols. In Wilton v. Colvin (6) the words of the covenant were in reference to the property of which the wife should, during the coverture, "become seised, possessed of, or entitled unto;" and it was held that the settlement contemplated future acquired title. In Otter v. Melvill (7) the wife was absolutely and immediately entitled, at the date of the settlement, to the sum in question. The case of In re Browne's Will (8) was one of tontine debentures, which were not reversionary, but in possession, and that was the ground of the decision. The Master of the Rolls said, "The (1) 1 Beav. 46. (4) 5 Jur. (N. S.) 56, 59. (5) 4 Giff. 432. (6) 3 Drew. 617. (7) 2 De G. & Sm. 257. lady was at that time both possessed of and entitled to this property;" and he afterwards added, that "if the parties to the settlement had intended to settle these tontine debentures, they would have done so by mentioning them in the settlement." V.-C. W. 1871-2 In re CLINTON'S TRUST: FUND. THE SAME: FUND. Hoare v. Hornby (1) was a case in which the words "all such HOLLWAY'S further estate (if any) as shall, during the life" of the lady, "become vested in or accrue to her, or as shall or may be assignable," were used; and there it was held that the property was vested at the time of the settlement, and that it could not become vested. It is submitted that Archer v. Kelly (2), relied upon on the part of the Petitioners, is an authority in the Respondent's favour; for there the wife's interest was changed in condition during the coverture, and here the property was converted during the coverture. It was changed in its condition from being a mere reversionary interest into money in possession, and therefore upon that authority it is bound by the covenant. The word "succession" in this covenant may be relied upon, and if alone, it would be quite sufficient to give the Respondents this fund. The plain meaning of all the words shews that the Petitioners interest in this reversionary realty, which became during their coverture reversionary personalty, was intended to be bound, and therefore it is submitted that it ought to be paid to the trustees of the settlement. Mr. Hardy, in reply : Mr. Higgins (Mr. Dickinson, Q.C., with him), for the Petitioners (the two surviving trustees of Mr. and Mrs. Weare's settlement, and the four infant children of the marriage,) on the second Petition: Re Hughes' Trusts (3), in which Grafftey v. Humpage (4) was followed, is a clear authority in favour of these Petitioners. The covenant here refers to the future acquisition of title, and, assuming that the Court will take that view of the matter, it will be needless to carry the argument further. Mr. Hardy, Q.C., and Mr. Loughborough, for the Respondents V.-C. W. (the legal personal representatives of Mr. Weare) on the second 1871-2 In re CLINTON'S TRUST: HOLLWAY'S FUND. THE SAME: Grafftey v. Humpage (1) has been disapproved of by Vice-Chancellor Knight Bruce in Hoare v. Hornby (2), by Vice-Chancellor Kindersley in Wilton v. Colvin (3), and by the present Lord Chancellor in Atcherley v. Du Moulin (4), In re Wyndham's Trusts (5), and Rose v. Cornish (6). Re Hughes' Trusts (7) was an extraordinary decision if the report be correct; but the marginal note is clearly wrong. In re Pedder's Settlement Trusts (8), decided by the Lord Justice James when Vice-Chancellor, is conclusive. Mr. Higgins, in reply, submitted that upon a general view of the law the current of authority was with these Petitioners; but he admitted that the decision in In re Pedder's Settlement Trusts was against them. He relied upon the decision in Re Hughes' Trusts, and referred to Atcherley v. Du Moulin, where the words were "be or become entitled" during the coverture; In re Wyndham's Trusts; Rose v. Cornish, where the decision in Grafftey v. Humpage was followed; and Churchill v. Shepherd (9). Mr. Reginald Hughes appeared for the trustees of the testator's will. SIR JOHN WICKENS, V.C.: The law on this subject is in a very embarrassing state, and the decisions are in fact irreconcilable. I have on these two Petitions to deal with covenants which are in the same words, and which have been introduced into two different marriage settlements. What makes the case somewhat important is, that the covenants are in the usual form of conveyancers' precedents, and this form of words may be taken as likely to occur again. (1) 1 Beav. 46; 3 Jur. 622. (3) 3 Drew. 624. (4) 2 K. & J. 192. (9) 33 Beav. 107. (5) Law Rep. 1 Eq. 290, 293. (6) 16 L. T. (N. S.) 786. (7) 4 Giff. 432. (8) Law Rep. 10 Eq. 585. 1872 In re CLINTON'S TRUST: FUND. It must be taken as clear on principle and authority, that such V.-C. W. a covenant, where the words are future, does not affect present property. The judgment of the Vice-Chancellor James, in the case of In re Pedder's Settlement Trusts, (1) represents, I conceive, quite accurately the law as deduced from the cases cited before HOLLWAY'S him. There can be no doubt that a covenant like the present applies exclusively to interests which the parties may acquire a title to after marriage, distinct from those vested in them at the time of marriage, and that there must be some change or other in the title to the property after marriage in order to bring it within the covenant. This change is described in the covenant by the words "become entitled to." The expression "become entitled to" in these and most covenants of the sort applies, I conceive, only to an acquisition of interest by the wife, and this may mean an acquisition of property in which the wife had no interest at the time of marriage, and which vests in her absolutely during the coverture—or an acquisition of property which she was entitled to in remainder at the time of marriage, and which vests in possession during the coverture-or an acquisition of property in which she had no interest at the time of the marriage, which vests in her by way of future title during the coverture, but, does not vest in possession till it is determined. The re can be no doubt that the first of these three classes is within the covenant; the difficulty arises with regard to the other two classes. Both of them cannot be included in such a covenant, and the question is, which of them is, primâ facie, to be considered as so included. Now it seems to me, that in considering this question we start with some slight presumption that the object of a settlement being to exclude the marital right, it is more likely, and the Court will be inclined to hold that it was intended to affect property which comes into possession during coverture, and which, therefore, the husband may make his own; but that does not carry us very far. Then the nature of these settlements is to be considered. Each of them. is an ordinary marriage settlement of the wife's property-that is to say, the income during the joint lives of the husband and wife is to be the wife's separate and inalienable property; it is then (1) Law Rep. 10 Eq. 585. THE SAME: FUND. |