BANKES 2. LE DESPENCER. [ *512] and her sons and daughters respectively; and, as to the remaining fourth part, to the use of Maria Catherine Stapleton in tail (1). The draft then provided that, in case of the failure or determination of the uses therein before declared as to the shares of any of the four last-mentioned young ladies, their shares, as well original as surviving or accruing, should go to the three others of them and their issue, for the same estates &c. as were therein before limited with respect to their original shares; and it declared uses, of the entirety of the manors &c., after the failure or determination of all the uses thereinbefore limited, in favour of Sir Francis Jarvis Stapleton and his sons and daughters, similar to those in favour of the Baroness Le Despencer and her sons and daughters respectively (2). At the end of the limitations, the shifting proviso was inserted. It was as follows: "Provided always and it is hereby declared and agreed that, notwithstanding some of the limitations herein before contained are made to several persons as tenants in common or applicable to undivided parts or shares of and in the said manors and hereditaments hereby settled, the object and intent of the settlement hereby made, is to limit the entirety of the same manors and hereditaments, as far as the law will permit, so as to accompany the dignity of Le Despencer as long as the person possessed of the same dignity shall be a lineal descendant of the said Thomas Lord Le Despencer, in pursuance of the direction in that behalf contained in the said recited indenture of appointment and release of the 8th day of August, 1826; and the said limitations to tenants in common or applicable to undivided parts or shares are made upon the assumption that, at the respective times at which the same are limited to take effect in possession, the said dignity will be in abeyance; and, therefore, in order the better to effect the said object and intent of this settlement, it is hereby further declared and agreed that in case (but only during the lives of the several descendants of the said Thomas late Lord Le Despencer to whom estates for their lives respectively are hereinbefore limited and the life of the longest liver of the same and the term of 21 years to be computed from the day next before the day of the decease of such longest liver,) at the time or respective times at which the said manors and hereditaments (1) This young lady was born after the late Lord Le Despencer's death. (2) There were several other lineal descendants of the late Lord Le Despencer, and the draft contained limitations in their favour: but, for the purposes of this report, it was not necessary to state them. hereby settled shall, under the limitations of these presents, become vested in possession in any two or more of such lineal descendants in undivided shares, the said dignity shall not be in abeyance, or in case, at any time or times during the limited period herein before mentioned and while after the said manors and hereditaments shall have so become vested in possession in undivided shares as aforesaid, the said dignity shall be in abeyance and such abeyance shall be determined, *by the prerogative of the Crown or otherwise, in favour of any one person being a lineal descendant of the said Thomas late Lord Le Despencer, then and in either of the said cases and so often as the same shall happen during the limited period aforesaid, the several uses and limitations herein before limited and contained shall cease and determine, and the entirety of the said manors and hereditaments with their appurtenances shall, thereupon, become vested in the person in whom the said barony or dignity shall become vested by the determination of such abeyance in her or his favour or otherwise, for such and the like estate in possession, and with such and the like remainders and limitations over as the same manors and other hereditaments or any part or share thereof, are or is limited and assured to or would have become vested in her or him under and by virtue of the limitations hereinbefore contained; and, if the case provided for as aforesaid, shall, during the period aforesaid, happen more than once, then this provision shall be applicable and operate toties quoties." Then followed the clause which was referred to, in the Master's report, as the clause giving the Court of Chancery power to alter, vary and explain the limitations of the proposed deed of settlement. It was thus expressed : "Provided always that, notwithstanding the uses, trusts, powers, and limitations herein before contained, and in order and to the intent that such uses, trusts, powers and limitations as are hereinbefore contained may, under the authority and by the direction of her Majesty's High Court of Chancery, be altered, varied, explained, enlarged or revoked in such manner and to such extent as the said Court shall decree or order in case the same Court shall, upon or according to the true construction of the said recited trust or direction for settlement of the said trust estates, think proper or deem it expedient to decree or order any such alteration, variation, explanation, enlargement or revocation, it is hereby agreed and declared, between and BANKES ፖ. LE DESPENCER. [ *513] [*514] BANKES v. LE DESPENCER. [515] [523] [ 525 ] [526] by the said parties hereto, that it shall be lawful for the trustees or trustee, at any time or times hereafter during the life of the survivor of the persons hereby made tenants for life or within 21 years next after his or her death, and under the authority and by the direction of and in obedience to any decree or order of the said Court of Chancery (but not otherwise) by any deed or deeds, instrument or instruments in writing to be sealed and delivered by the same trustees or trustee in the presence of and attested by two or more credible witnesses, to alter, vary, explain,; enlarge or revoke all or any of the uses, estates, trusts, powers and limitations herein before limited, created, expressed, declared and contained of and concerning the said manors, hereditaments and premises herein before expressed to be hereby released or any of them, and, by the same or any other deed or deeds, instrument or instruments in writing to be sealed and delivered and attested as aforesaid, to limit, declare, direct or appoint such new or other use or uses, estate or estates, trusts and powers as shall be decreed or ordered by the said Court of Chancery to be limited, declared, directed or appointed." The cause was now brought on to be heard for further directions. Exceptions were not taken to the Master's report, as it stated the grounds on which the draft of the settlement was objected to. Mr. Follett appeared for the plaintiff. Mr. Anderdon and Mr. Lee, for the Misses Stapleton, the daughters of the late Miles John Stapleton [on the first point as to the appointment of a protector, cited Woolmore v. Burrows (1); on the second point (as to the insertion of a term of years to provide for the abeyance of the peerage instead of the shifting proviso) they cited The Duke of Norfolk's case (2)]. Mr. Bethell and Mr. Hetherington, for Sir Francis Jarvis Stapleton, the youngest and only surviving son of the late Lord Le Despencer. Mr. Stuart and Mr. Hodgson for the Baroness Le Despencer : The draft which the Master has settled, is perfectly unobjectionable in every particular. The protector is an irresponsible person; and it is not the habit of the Court to appoint irresponsible persons. The settlor may do it; but it is a very different thing for the Court to do it. (1) 27 R. R. 225 (1 Sim. 512). (2) 3 Ch. Ca. 1. The words in the abeyance clause, which the counsel for Sir F. J. Stapleton have objected to, were inserted because they are contained in the release of August, 1826. The revocation clause ought not to be allowed to remain. The settlement must be made once for all, and must then become the absolute law governing the estates comprised in it. Mr. Follett, in reply, said that the plaintiff was perfectly satisfied with the draft; and did not wish to have a protector of the settlement appointed. THE VICE-CHANCELLOR: Upon the first question raised by the report, I am of opinion that there ought not to be any protector of the settlement under the 32nd sect. of 3 & 4 Will. IV. ch. 74. In the first place, it was stated to me, at the hearing on further directions, that the plaintiff who, under the deeds of the 7th and 8th of August, 1826, is the trustee upon trust to settle, does not desire to appoint a protector. By being the trustee upon trust to settle, I think he is a settlor within the meaning of that section; and, though he is to settle in such manner as this Court shall direct, yet, unless there is good reason to the contrary, the Court ought to let him exercise his discretion. In the next place, the Act of Parliament itself furnishes reasons why a protector should not be appointed by the Court, unless upon a special case. By the 36th section, a protector is made irresponsible, and is at liberty to act from mere caprice, ill will or any bad motive. By the 37th section, a protector is enabled to take a bribe for giving consent; and, if two or three persons are *made protector, and any one of them incurs a disability under the 33rd section, then it is questionable at least whether this Court could act in lieu of such person with the other or others who are not disabled; and, if it could not, there would be no protector capable of acting. I can easily conceive that a case might exist in which it might be advisable to appoint a protector according to the power given by the Act of Parliament. But, in the present case, no special circumstances are stated and it is reasonable to presume that the members of the noble family who will successively enjoy the settled estate, will best understand their own interests; and I think it better to commit the protection of the estate to them, than to strangers who will have the statutory privilege of being uncontrollably perverse and corrupt, with the BANKES บ. LE DESPENCER. chance of rendering the protectorate, by crime or accident, utterly inefficient. Upon the second question, I think it is not necessary to have a term of years limited; but that the clause in the nature of a limitation of cross remainders (1), sufficiently answers the intended purpose. Upon the third question, I think that the general words should stand for they may do good and cannot do harm. : And, upon the last question, I think that the proposed clause ought to be omitted for it is not warranted by the decree, which meant that the settlement should be final: and I think such a clause is wholly unusual and without precedent. 1840. Feb. 26. April 23. SHADWELL, COOPER v. EMERY. (10 Simons, 609-615.) [SEE the report of this case on appeal to be taken from Phillips, 388.] 1840. April 24. SHADWELL, [ 10 Sim. 629] DE LA VIESCA v. SIR JOHN WILLIAM LUBBOCK (2). (10 Simons, 629–633.) Pending a litigation in a Spanish Court, as to which of two testamentary papers of a deceased Spaniard, ought to be established, the plaintiff, who was resident in Spain, was appointed, by the Spanish Court, the judicial administrator of the deceased's goods; and the plaintiff, under the authority of that Court, afterwards appointed the defendant to be his attorney to recover and receive 10,0001. due to the deceased's estate from C. & Co., of London. The defendant, after litigation, in the Prerogative Court of Canterbury, with one of the parties to the Spanish suit, obtained letters of administration to the deceased, to be granted to him as the plaintiff's attorney, limited to receive the 10,0007., until the plaintiff should obtain administration to the deceased. The defendant afterwards received the 10,000l. Held, that he might safely pay it over to the plaintiff, although he had not obtained administration to the deceased. PENDING a litigation, in the Civil Court of First Instance at Cadiz, between the sister and the nephew of Don Domingo Aramburn, late of Cadiz, deceased, as to which of two testamentary papers of the deceased, the one dated in 1829, and the other in 1814, ought to (1) This clause was termed "the shifting proviso," in the Master's report. (2) Eames v. Hacon (1881) 18 Ch. Div. 347, 50 L. J. Ch. 740, 43 L. T. 196; In re Rendell [1901] 1 Ch. 230, 70 L. J. Ch. 265. |