M'Donnell v. Hesilrige.

and entitled under the Statute of Distribution as if she had died intestate and unmarried.

The deed also authorized the trustees to apply the income for the maintenance and education of any child, and also to expend a portion of the principal for advancing them in the world.

The 1,876. consols was duly transferred to the trustees, but the contemplated marriage with John Taylor never took effect; and on the 3d of September, 1836, Isabella Hesilrige intermarried with Francis M'Donnell, and on the 24th of October, 1838, she died in childbirth of the plaintiff, Elizabeth M'Donnell, leaving her her only child.

In May, 1834, at the request of I. Hesilrige, the trustees transferred 2007. of the sum of 1,8761. consols to her for her own use, but they retained the rest of the stock in their hands, and paid the dividends to her during her life. Francis M'Donnell, at the decease of his wife, was in greatly embarrassed circumstances, and with the plaintiff resided in Ireland, at the house of his father, Edward M'Donnell, at which place he was compelled to leave her. The family of the plaintiff's mother was anxious that she should be brought up among them in England, in which case (upon her father, F. M'Donnell, satisfying them of his inability to support her) the trustees expressed their willingness that the whole of the income should be applied for her maintenance and education; but if this was not complied with, they refused to make any advance they were not legally bound to make. This bill was then filed by Isabella Elizabeth M'Donnell, by Edward M'Donnell, her grandfather and next friend, against the trustees of the settlement, and against Francis M'Donnell and others, praying that the trusts of the settlement might be carried into execution, and asking for an account, and that a competent part of the income, arising from the trust-moneys, might be applied for the maintenance and education of the plaintiff, and asking for the appointment of new

trustees.

R. Palmer and Chapman Barber, for the plaintiff. The question is, first, whether a settlement, made in contemplation of a previous marriage which is never solemnized, is valid, and whether the interest of the children of a subsequent marriage and the other parties claiming to be interested under it, is contingent; and, secondly, whether the sale of 2004., part of the original trust fund, and the payment of the proceeds to Isabella Hesilrige while sole, was a breach of trust.

Bill v. Cureton, 2 Myl. & K. 503; The Countess of Strathmore v. Bowes, 1 Ves, jun. 22; Page v. Horn, 9 Beav. 570; 11 Beav. 227; Beatson v. Beatson, 12 Sim. 280.

Roupell and Cory, for the trustees. The intention apparent upon the face of the deed was a settlement in contemplation of a marriage with John Taylor, and that being the consideration, the trusts can only take effect upon that marriage; if no marriage took effect, the deed cannot be considered as a settlement. Thomas v. Brennan, 15 Law J. Rep. (N. s.) Chanc. 420; Mitford v. Reynolds, 16 Sim. 130.

M'Donnell v. Hesilrige.

With respect to the 200l., part of the trust fund, that was paid to Isabella Hesilrige before her marriage with F. M'Donnell.

Welch, for the next of kin of the plaintiff's mother.

Bovill, for the plaintiff's father.

THE MASTER OF THE ROLLS. The settlement is no doubt voluntary. It is the case of a feme sole disposing of her property, and the question is, whether a trust has been created. It is not necessary to consider whether the deed was binding in consequence of an omission to transfer the fund to the trustees at the time. The deed in this case was complete as soon as the fund was transferred, and the relation of trustees and cestui que trust arose. Those, then, are the trusts the court has to execute. As to 1,600l. there is no dispute; but I feel some regret in expressing my opinion of what appears to me to be the plain construction of the settlement, that the whole of the fund was bound by the trusts; 2001. of this fund has been sold out and paid to Isabella Hesilrige without any sufficient authority, as the settler was not competent to dispose of any part of it before her marriage. The whole fund was settled in the event of any marriage; it was a trust for her sole benefit, and the subsequent trusts showed that the fund was to be held in the event of any marriage taking place and of there being issue. It was to apply to her while she was a feme sole, as well as to provide for her in case of any marriage taking place. I am, therefore, of opinion that the sale was not authorized, and the trustees must replace the 2007. The trustees might have exercised a discretion in the application of the fund; but they are entitled to have the deed carried into execution under the direction of the court, and, if they had required that, the court would have assisted them. I must, therefore, direct an inquiry as to who has maintained the infant since the death of her mother, and to ascertain what sums it will be proper to apply for the maintenance of the plaintiff, and whether the father is of ability to maintain her. I, also, cannot make the trustees pay the costs which have been incurred further than they have been increased by their selling out a portion of the trust fund. The costs of the next of kin of the plaintiff and of the other parties must be paid out of the fund.

See Wrigley v. Sawainson, 3 De Gex & S. 458, and Loader v. Clarke, 2 Mac. & Gor. 382.

Sale v. Kitson.

SALE V. KITSON.1

February 28, 1853.

Practice Procedure Amendment Act - Parties - Foreclosure Suit.

In a foreclosure suit all the parties who had control over as well the mortgaged property as the personal estate of the mortgagor, were on the record: and the court held, under the 42d section, rule 9, of the 15 & 16 Vict. c. 86, that the cestuis que trust of the mortgaged estate were not necessary to be made parties.

THE owner of an estate executed a mortgage thereof, and subse quently he devised one moiety to some members of his family abso lutely, and devised the other moiety to trustees in trust for certain parties, and appointed those trustees his executors. The mortgagor and the mortgagee both died, and the representatives of the mortga gee filed the present claim for foreclosure against the absolute devisees of the one moiety of the equity of redemption, and against the trustees of the other moiety, and against the latter as the executors of the mortgagor.

At the hearing of the claim, which took, place before the statute 15 & 16 Vict. c. 86, came into operation, and an objection being taken for want of parties, the court held, that the cestuis que trust of the one moiety ought to be on the record, and gave the plaintiffs leave to amend by making them parties. For this purpose the claim stood over, but before any amendments were made the statute came into operation. The claim was, therefore, set down again for hearing in the same state of parties, before Vice-Chancellor Stuart, who considered that the point of parties had better be brought before the notice of this court or of the Lord Chancellor.

Elderton now, on behalf of the plaintiffs, submitted to the court that, under rule 9 of the 42d section of the Procedure Amendment Act, the cestuis que trust need not be made parties to the suit. He cited-Goldsmith v. Stonehewer, 9 Hare, App. 38; s. c. ante, 385; Hanman v. Riley, 9 Hare, App. 40; s. c. ante, 386.

TURNER, L. J. Both my learned brother and myself are of opinion, that, as all the persons having control over the property, the devisees of one moiety and the trustees of the other moiety, and the executors of the mortgagor, are before the court that is to say, the whole property both real and personal, out of which the mortgagor is to be satisfied, being represented, the claim may with propriety be heard without the presence of the cestuis que trust.

1 22 Law J. Rep. (N. s.) Chanc. 344; 17 Jur. 170.

Coope v. Carter; Coope v. Townsend.

COOPE v. CARTER; COOPE v. TOWNSEND.1

April 29, 1852.

Trustee Executor - Inquiry as to Wilful Default when Directed — Practice.

A bill sought to charge persons named as trustees of a settlement, for what they might but for their wilful default, &c. have received. At the hearing, it was dismissed as against the representative of one of them, with costs, he never having acted as trustee; and the common accounts only were directed as against the representatives of the other trustee. The case coming on, on further directions:

Held, reversing the decision of the court below, that no inquiry ought to be directed as to wilful default.

THIS was an appeal from the order of his honor the Vice-Chancellor, Sir James Wigram, dated the 16th of February, 1850, made on further directions, whereby amongst other things it was referred back to the Master to inquire and state to the court the amount and particulars of which the fortune of Frances Cresswell, assigned by an indenture of settlement of the 13th of May, 1815, consisted. And in case the said Master should find that the said fortune consisted of any other particulars than the 500l. three and a quarter per cent. annuities in his report, dated May 7, 1849, mentioned, then it was ordered that the said Master should inquire and state to the court whether R. L. Townsend, then deceased, could with due diligence, and without wilful neglect or default, have received any, and what part of such particulars, and that was to be without prejudice to any question in the cause, &c.; and the said Master was to be at liberty to state any circumstances specially, &c.; and the court reserved the consideration of all further directions and costs until after the said Master should have made his report, with liberty for any of the parties to apply.

It appeared that Samuel Walbank, by his will, dated 21st November, 1803, gave to the Rev. Dr. Townsend and J. Pitt (both since deceased,) 2,000l. upon trust for his wife for life, and after making a bequest of his household goods, furniture, &c., he gave the residue of his personal estate and the said 2,000, after his wife's decease, to his children by his said wife; and he appointed the said Dr. Townsend and J. Pitt executors. The testator died, leaving his widow and five children, one of whom, Frances, married Edmund Cresswell. On the 13th February, 1807, Dr. Townsend and J. Pitt proved the will. By a settlement made on the marriage of Frances Walbank with Edmund Cresswell, dated 13th May, 1815, she assigned to Dr. Townsend and R. Carter the fifth share, to which she was entitled under the will of the testator, upon certain trusts, under which the

1 19 Law Times Rep. 119; 21 Law J. Rep. (N. s.) Chanc. 571.

Coope v. Carter; Coope v. Townsend.

plaintiffs in these suits are interested. Dr. Townsend, it appears, alone acted as trustee. Frances Cresswell died in August, 1829. On the 2d of April, 1830, the children of the testator and Edmund Cresswell executed a general release to Dr. Townsend and J. Pitt, as trustees and executors of the will of the testator, and the sum of 5001. four per cent. annuities (afterwards reduced to three and a quarter per cent. annuities) was transferred into the name of Dr. Townsend as trustee of the settlement of Frances Cresswell. Dr. Townsend died in June, 1830, having appointed the defendants, R. L. Townsend and John Haines, his executors; and on the 27th of April, 1842, the plaintiffs, J. R. Coope and H. M. Daniel, were appointed trustees of the settlement, in the place of R. L. Townsend and R. Carter. The original bill was filed on the 24th January, 1843, by the Rev. R. Coope and his co-trustee, J. R. Daniel, the wife of the Rev. J. R. Coope, and the other children of Edmund Cresswell, praying that the amount of the fortune of Frances Cresswell, which had been received by the late Dr. Townsend and R. Carter, who were alleged to have acted jointly as the trustees of her settlement, or which, but for their or either of their wilful neglect or default, might have been received, might be ascer tained, and that it might be declared that the said R. Carter, personally, and the said R. L. Townsend and J. Haines, as executors of Dr. Townsend, out of his personal estate, might be decreed to pay or make good the whole or such part of the fortune of the said Frances Cresswell as should not have been duly invested pursuant to the trusts of the settlement. R. Carter afterwards died, and the suit was revived against his executor, W. Carter. On the 19th of January, 1846, by a decree made by his honor Vice-Chancellor Wigram, it was ordered that the bills should be dismissed with costs as against the defendant, W. Carter, (R. Carter, it appears, not having acted as trustee,) to be paid out of the fund and cash in court, and it was referred to the Master to inquire and state to the court the amount and particulars of the fortune of Frances Cresswell assigned by the indenture of settlement of the 13th of May, 1815, which had been received by Dr. Townsend, deceased, or by any other person or persons by his order or for his use. And the said Master was to be at liberty to state any circumstances specially with regard to the matters aforesaid. No account as to wilful default was, it may be observed, directed, nor did the representatives of Dr. Townsend apply to have the bill dismissed, so far as it prayed wilful default. On the 7th of May, 1849, the Master made his report, whereby, after stating certain facts and documents brought forward in his office, by which the plaintiffs alleged it was shown that there had not been an equal division of the property of the testator between the five children, and that the share of Frances Cresswell ought to have been 1,000l. and not merely 5007., the Master, however, found that the amount and particulars of the fortune of the said Frances Cresswell assigned by the indenture of settlement of the 13th of May, 1815, which had been received by Dr. Townsend, deceased, or by any person or persons by his order, or for his use, consisted of the sum of 500l. three and a quarter per cent. annuities, appearing by the deed of release of the 2d April, 1830, to