1855. FOSTER V. CAUTLEY. death of any or either of their other children, in such manner as was specified and contained in the indenture of settlement, and notwithstanding that in case of no complete appointment, the then present appointment was intended to be made in lieu of all claims and demands of their daughter Sarah Baskett, to or for her original or principal share or interest in the same trust moneys and premises jointly and each of them did irrevocably limit, declare and appoint that the said John Foster and James Torkington, or the survivor of them, his executors or administrators, or other such new trustees or trustee as should be appointed under or by virtue of the before-recited indenture of settlement, should upon and immediately after the decease of the survivor of them the said Roger Baskett and Sarah his wife, pay, assign and transfer one equal and full third part or share of and in the said sum of 9,0091. 3s. 8d., 31. per Cent. Reduced Annuities, so comprised in the thereinbefore recited indenture of settlement, unto their said daughter Sarah Baskett, her executors, administrators and assigns, as and for her original share and interest in the same trust moneys and premises, and be and for her own use absolutely. By the settlement bearing date the 7th June 1837, and made on the marriage of Sarah Baskett with Joshua Cautley, to which settlement her father Roger Baskett was a party, all the full third part, portion or interest of her the said Sarah Baskett the daughter in the said sum of 9,0091. 3s. 8d., 31. per Cent. Reduced Annuities, settled under or by virtue of the indenture of settlement of the 10th July 1804, and then vested in the trustees under the said settlement of 1804, which said share and interest was appointed to her under the said deed poll, and all other the share or interest, shares or interests, sum or sums of money (if any) which might accrue accrue or devolve to her the said Sarah Baskett the daughter under or by virtue of the same indenture of settlement, or otherwise were vested in trustees for the benefit of herself and her husband for life, with remainder to their children. Roger Baskett, by his will, dated August 23rd, 1838, gave all his personal estate to trustees upon the trusts therein mentioned. The will contained the following proviso-provided also and he the said testator thereby directed and declared that the bequest or declaration of trust therein before made in favour of his the said testator's said daughter Sarah and her children was made upon condition that his said daughter Sarah should bring into hotchpot the sum of 1,000l., advanced by him the said testator to her upon her marriage, and also that she his said daughter should renounce and give up all claim to any share in the sum of 9,0097. 3s. 8d., 31. per Cent. Reduced Annuities, settled under his the said testator's settlement upon his marriage with his said wife, beyond the one-third part or share of the same sum of 9,0091. 3s. 8d. appointed to his said daughter Sarah upon her said marriage; and in case his said daughter should fail or neglect to bring into hotchpot the said sum of 1,000, or to release all such claim as therein mentioned, then he directed and declared that the sum of 3,0007. should be deducted from the onethird share of the produce of his the said testator's said real and personal estate therein before directed to be set apart for his said daughter Sarah and her children, and should be added in equal moieties to the one-third shares therein before directed to be set apart for his said other daughters respectively, and be held as part of their said intended shares respectively as therein mentioned. The testator died on the 20th March 1841, having never exercised the powers of appointment reserved to 1855. FOSTER บ. CAUTLEY. 1855. FOSTER V. him and his wife jointly, except by the deed poll of June 1837, as to one-third part of the trust funds. His daughter Etheldred married the Defendant Pinckney; and his CAUTLEY. daughter Elizabeth married W. T. Clarke, and by their marriage settlement she had the power of appointing her expectant share in the 9,0097. under the settlement of 1804, and she, in pursuance of that power, by her will gave all her real and personal estate over which she had a power of appointing to her husband and died. The Defendant W. Scarborough claimed under the will of W. T. Clarke, who survived his wife, and died on the 11th June 1846. The Vice-Chancellor Stuart having held that Sarah Cautley became entitled under the settlement of 1804 to one-third part of the unappointed residue of and in the trust funds, in addition to the one-third part appointed to her by the deed poll of June 1837, the Defendant W. Scarborough now appealed to the Lord Chancellor. Mr. Lloyd and Mr. Shapter for W. Scarborough, in support of the appeal. Although in the deed of appointment of June 1837, there is an express negation of the right of Mrs. Cautley to participate in the unappointed residue, the ViceChancellor has nevertheless declared that she had such a right. We submit that under such circumstances, the appointment was in the nature of a conditional appointment, and amounted to or at least supplied the defect of a hotchpot clause in the original settlement, and under such circumstances there can be no implication, as in the case of an heir at law. The appointment which was made" in lieu of all claims and demands" amounted to a contract on the part of the appointee to bring her share into hotchpot if she should seek to participate in the residue, which is incorrectly assumed to be an un appointed appointed fund. We rely on the authority of Simpson v. Paul (a), recognized and approved by Sir W. Wood in Lee v. Head (b). The case of Wilson v. Piggott (c) may at first sight be thought opposed to our contention, because the result of that decision was to vest the unappointed residue in all the children equally, though an appointment had been exercised in favour of one of them "as her share;" but it is to be observed, as Lord Alvanley there stated, that the appointor had not in express words said that the part appointed was to be taken in lieu of her share, but "as her share," the necessary inference from which is that in the present case the words are sufficient to exclude the Respondent from participating in the residue. In the case of Fortescue v. Gregor (d), there being a power of appointment to be exercised among three persons, and the power being executed in favour of one, with a recital that the donee of the power was desirous that the fund should be equally divided, it was held to be sufficient to exclude the appointee from participating in the unappointed residue. In the case of Folkes v. Western (e) an advancement was held to be a satisfaction. So in Alloway v. Alloway (f) Lord St. Leonards said that if there had appeared in that case an intention expressed or implied at the execution of the power, he would have followed the decision in Fortescue v. Gregor (d). On similar principles, where a testator excludes his wife or any one of his next of kin in every possible event, this Court will effectuate such intention; Davila v. Davila (g); Cleaver v. Spurling (h); Vachell v. Breton (i); Druce v. Denison (k); Gurly v. Gurly (l); and even an 1855. FOSTER บ. CAUTLEY. 1855. FOSTER v. CAUTLEY. heir at law may be excluded by implication, Hughes v. Evans (a). In the cases of Johnson v. Johnson (b) and Wombwell v. Hanrott (c), there was an attempt to exclude certain persons without specifically carrying out that intention by giving it over to some one else. Mr. Malins and Mr. Dickinson, for the children of Mrs. Cautley. The argument of the Appellant must assume that the donee of the power by appointing to one child a share necessarily excludes that child from sharing in the residue. The claim of the children, however, is not under the appointment, but paramount to it, as representing their deceased mother; and in truth the only question is whether the appointment of part implies the appointment of the residue, for unless it does the Appellant's case must fail. Here it is to be observed, that there was not only no implied appointment of the residue, but an express reservation of the power to appoint it. A mere recital of an intention to exclude certain persons who might be objects of the power is clearly insufficient to exclude them; Wilson v. Piggott (d); Bristow v. Warde (e). The case of Simpson v. Paul (ƒ) is not approved by Lord St. Leonards, Sugden on Powers, vol. 1, page 358. The cases of Lee v. Head (g) and Folkes v. Western (h) have no application, because in each of those cases the parties had expressly released their interests in the estates. Mr. Elmsley and Mr. Hallett, for Mr. and Mrs. Pinckney. |