Beatson v. Beatson.

tary settlement. By his will he gave all the residue of his estate and effects to his wife, and appointed her sole executrix. The will did not take notice of the settlement. But afterwards he executed a testamentary instrument which did take notice of the settlement, in express terms; and which, in a certain way, seems to me to have disposed of the 1,000l. which was part of the fund, upon the face of this settlement, settled by him, that is, reserved to himself. After his death, the will and the testamentary paper, were proved by Mrs. Cadogan. Then she filed a bill, against the persons who represented Lord Cadogan: from which it appears that, in the meanwhile, the fund had been lent to Lord Cadogan, upon mortgage: so that those who represented him had the legal interest in the fund. The bill was filed, by Mrs. Cadogan, insisting that she was entitled to the fund in question which was settled; because, she said, there was a good

execution of the power; and, if not, then the argument [*293] was raised, at the bar, that the settlement was altogether voluntary, and that, therefore, she, as the executrix of Mr. Cadogan, was entitled to have the fund. I collect, from the argument, that though that particular point was argued by Sir Edward Sugden, and probably by the other counsel who were with him, yet the answer to it was that the bill did not raise any such case; because it stated the settlement, and claimed under the settlement. The bill was not a bill by the executrix merely, treating the matter as if there had been no settlement, and leaving the defendants to set up the settlement and avail themselves of it; but it stated, substantially, the settlement, and endeavored to have the benefit of it; and it does not appear that relief was prayed in the alternative. So that the relief which was asked by means of the argument that the settlement ought to be altogether considered as a nullity, was, in effect, inconsistent with the case made by the bill. And it further struck me, on reading the case, that though it might have been possible that Mr. Cadogan, in his own lifetime, might, notwithstanding the settlement, have requested that the holders of the fund should be declared trustees for him; yet the case varied from the mere case of a claim by Mr. Cadogan, in this respect:

Beatson v. Beatson.

that Mr. Cadogan had died, and, by his testamentary papers, which were proved by the executrix and had bound her, he had taken notice of the settlement as an existing instrument: and it occurred to me, therefore, though it does not appear to have been noticed by Sir William Grant, that the decision of that learned judge might have been supported upon that ground: because the party who claimed to set aside the settlement, was the personal representative of a party who, by his testamentary papers, had acknowledged the settlement.

*The language that is put into the mouth of Sir [*294] William Grant, is this: he says, "But as against the party himself and his representatives, a voluntary settlement is binding." That is true, provided that the subject of the settlement is completely vested in those persons who are to take under it, or in certain persons as trustees, who are to hold it for other parties. His honor then goes on to say: "The court will not interfere to give perfection to the instrument, but you may constitute one a trustee for a volunteer." That is true. "Here the fund was vested in trustees." That is true with respect to the original fund itself. "Mr. William Cadogan has an equitable reversionary interest in that fund, and he has assigned it to certain trustees, and then the first trustees are trustees for his as signs, and they may come here: for, when the trust is created, no consideration is essential, and the court will execute it, though voluntary."

Now I cannot but think, if Sir William Grant did use that language, that it was inaccurate: because the voluntary settlement which was executed by Mr. William Cadogan, left the fund as it existed at the time when the settlement was made; and nothing whatever passed, by the voluntary settlement, to the persons who were named as trustees of it; and it seems to me that, but for other circumstances which I have noticed, his honor's decision would not have been right. But, attending to what actually was the state of the record before him, and what were the circumstances of the case, it appears to me that the decision was

Beatson v. Beatson.

perfectly right. Therefore, the only thing that I should consider as inaccurate, is the expression that Mr. Cadogan had assigned the fund to certain trustees: whereas, in effect, he as[*295] signed *nothing; for they took nothing: the fund remained just where it was.

I do not, therefore, consider that Sloane v. Cadogan is, in effect, any sort of authority for the position in support of which it was cited. And I observe that my Lord Chancellor, in giving his judgment upon the appeal in Edwards v. Jones, says(a): "In Sloane v. Cadogan the claim was not against the donor or his representatives, for the purpose of making that complete which had been left imperfect; but against the persons who had the legal custody of the fund; and the question was whether the transaction constituted them trustees of the fund for the cestui que trusts. Sir William Grant came to the conclusion that it did; and the consequence was that they were bound to account. That case has been considered, by Sir Edward Sugden, as going a great way; but, upon the principle stated by Sir William Grant, it is free from all possible question; for there was no attempt, in that case, to call in aid the jurisdiction of this court."

It is true that, upon the principle stated by Sir William Grant, it was right. The only question is whether the mere principle, as it stands expressed in the judgment, independent of the facts of the case, was a principle that could be correctly applied to the case; and I rather think that it was not. Taking the principle to be right, the decision certainly is right.

In this present case it appears to me that the lady, having made what I should call an imperfect voluntary settle[*296] ment, without any contract whatever with any human

being, was at perfect liberty to call upon those who were the holders of the fund, and say: "I have executed my powers of appointment, but all the trusts I have declared are clearly void:

(a) 3 Myl. & Cr. 238.

Beatson v. Beatson.

I choose to annul them." And I cannot but think, inasmuch as the funds have not (which I take to be the fact notwithstanding the recital in the last indenture) passed from the persons who were the holders of the funds under the will of the mother and under the will of Mrs. Nowell, that those persons do now hold the funds in trust for such purposes as Mrs. Beatson may now choose to declare. Therefore, when she has filed a bill in conjunction with those gentlemen who are named as trustees of her second settlement, making the husband a party to the record, and he does not object to the relief asked by the bill, this court ought to interfere and ought to do this, namely, not to direct that both the sets of trustees shall hand over the funds to the new trustees; but that the trustees of the mother's will shall hand over the fund to the new trustees; because the fund is given, by the mother's will, absolutely according to the appointment of Mrs. Beatson; but as, with respect to the fund which is given by the will of Mrs. Nowell, the first trust declared is that it shall be in trust for the separate use of Mrs. Beatson during her life, and the trustees are to transfer the fund, after her decease, in such manner as she shall appoint; it appears to me that it would be inconsistent with the trusts declared by the will of Mrs. Nowell, that the trustees should, in the first instance, part with the fund. My opinion is that, according to the true construction of their trusts, they must hold that fund, during the life of Mrs. Beatson, unless they choose to give it up; and no duty can be imposed upon them to transfer the fund at all until after her death.

*Therefore, I think that those persons who are trus- [*297] tees under the mother's will, should be directed to trans

fer the fund to the nominees of Mrs. Beatson under her last instrument; and that it should be declared that the trustees under Mrs. Nowell's will do, as to the two-sevenths of her residuary es tate to which Mrs. Beatson is entitled, stand possessed of them in trust for her separate use during her life, and, after her death, upon trust to assign them to the trustees of Mrs. Beatson's second settlement,

Cornewall v. Cornewall.

Declare that, in the events which have happened, the deeds poll of appointment and the indenture of settlement of the 13th of June, 1839, have become inoperative, and that the indenture of revocation and new appointment of the 30th of December, 1839, and the indenture of settlement of the 12th of August, 1840, ought to be carried into effect: Order the trustees of Mrs. Nowell's will to transfer the two-sevenths of her residuary estate, and the trustees of Mrs. Humfray's will to transfer the 5,000l. reduced annuities, to the trustees of the indentures of the 12th of August, 1840.(a)

[Reg. Lib. (A.) 1840, fo. 1451 b.

[*298]

*CORNEWALL v. CORNEWALL.(b)

Administration.-Priority.-Devisee and legatee.

1841: 31st July.

Specific legacies are to be applied in payment of specialty debts, in priority to real estates devised. [Long v. Short observed upon.

Will-Construction.-Books.

Testator gave, to his son, all his plate, jewels, trinkets, and all his furniture and other articles of domestic use and ornament. By a codicil, he gave, to his wife, all his provisions, wines, carriages, horses, and all his musical instruments, and the use of all his books, and all his money in his dwelling-house and in his banker's and land-steward's hands, for her own sole use and benefit. Held, that the books were given to the son absolutely; subject to a life-interest in the wife.

By indentures of lease and release of September, 1815, real estates were settled and assured to Sir G. Cornewall for life, with remainder to his first and other sons in tail male. By indentures of lease and release of July, 1816, other real estates were convey

(a) As the decree directed the trustees of Mrs. Nowell's will to transfer the two-sevenths of that testatrix's residuary estate, to the trustees of the deed of August, 1840, it is presumed that they had consented to make the transfer.

(b) Ex relatione Mr. Nicholl.