Duncan v. Campbell.

(who had survived her sister,) that, if she would pay down 2,000, part of the 3,000l., he would consent to the 1,0002, the remainder of that sum, being paid to trustees for the separate use of his wife, and would settle, not only the 2,000% which was to be so paid down, but also 2,000l. out of his own funds, in the manner therein mentioned. So that Mr. Duncan was a purchaser, not only by relinquishing his right to a chose in action of his wife's, but by advancing money out of his own pocket. The deed recites that Mr. and Mrs. Duncan had applied, to Miss M. Campbell, for immediate payment of 2,000l. in order to enable them to make permanent provisions for the maintenance of themselves and the survivor of them, by sinking that sum, along with a similar sum of Mr. Duncan's own funds, on an annuity or yearly or half-yearly payment on their joint lives and the life

of the survivor of them, or by investing the same in the [*637] government or other public *securities in the names of trustees, so that the interest or dividends should be paid, to them, during their joint lives, and the principal sum to be at the disposal of the survivor, he, Mr. Duncan, in consideration of such immediate payment, being willing that the remaining 1,000l. of the legacy, when payable, should be paid, to trustees, for Mrs. Duncan's own use exclusively. The deed then recites that Miss M. Campbell had agreed to the proposal so made to her by Mr. and Mrs. Duncan, and, in consequence, had made payment, to them, of the 2,000l. Then, in consideration of that payment, Mr. and Mrs. Duncan assign the 1,000l. to Mr. J. Deans Campbell and his co-trustees, for the use of Mrs. Duncan; and Mr. Duncan renounces his jus mariti with regard to that sum; and then binds himself, at the sight of Mr. J. D. Campbell, immediately to invest the 2,000l. paid by Miss Campbell, along with a like sum of his own funds, for an annuity or yearly or half-yearly payment during the joint lives of himself and his wife and the survivor of them, either by sinking the same sums by way of annuity as before-mentioned, or by investing them in the government or other public security or securities, in manner before mentioned, or in such other way or manner as might be sanctioned by Mr. J. D. Campbell, taking care that the same

Duncan v. Campbell.

should be safely invested so as to secure the punctual payment of the annuity or the interest or dividends arising on the said securities. This last part of the deed imposed an obligation on Mr. Duncan; and he has fulfilled it. Then the only question is what is the trust that results from the expressions used in the deed. Now, in Page v. Way the trustees were directed to pay and apply the rents and profits of the trust property, unto or for the maintenance and support of F. Jones, his wife and family; and, in Rippon v. Norton, the trust was to apply *the [*638] profits of the property for the board, lodging and subsistence of J. Rippon the younger, and his family. But, in this case, there are no such expressions: the annuity or the income of the securities in which the 4,000l. might be invested, were to be paid to Mr. and Mrs. Duncan only, during their joint lives; and, under those words, Mr. Duncan would be entitled to receive the whole. And, if that be so, would it not be strange to say that he shall be deprived of the benefit which he is entitled to under the deed, because his wife has so misconducted herself that he is justified in living separate from her? Sydney v. Sydney is not an authority for that proposition, but for the converse of it; for it decided that the wife was entitled to compel her husband to perform the articles entered into on their marriage, notwithstanding she had been guilty of adultery.

I shall, therefore, declare that Mr. Duncan is entitled to the interest of the trust-fund during the joint lives of himself and his wife; and as Mr. J. D. Campbell has taken upon himself to decide as to the rights of the parties under the deed, and has paid part of the interest to Mrs. Duncan, the order which I shall make with respect to the costs of the suit, is that the plaintiff do pay Mr. Trimmer his costs, and that Mr. Campbell do pay the plaintiff his costs, and also the amount of the costs paid, by the plaintiff, to Trimmer.

Croft v. Adam.

[*639]

1842: 4th June.

*CROFT v. ADAM.

Deed.-Construction.-Trust.-Power.

A widow, by the settlement on her second marriage, settled 2,3002 which had belonged to her first husband, in trust for her separate use for life; and declared that, subject thereto, the fund should, as and whenever she should think fit or be advised, be settled upon trust for the benefit of her daughter and only child, by her first husband and of her daughter's intended husband and her child and chil dren, in such manner and for such rights and interests as should be agreed upon either previous to or after her daughter's marriage, with her consent, and that she (the mother) should have full power to settle the fund or any part of it, in trust for the immediate benefit of her daughter and her child and children, in manner aforesaid, to take effect either upon such marriage, or upon or immediately after her own death, as she should think fit; but, if the daughter should not be married in the mother's lifetime and should survive her, then the fund should be assigned to the daughter at 21 or on marriage; but, if the daughter should die in her mother's lifetime without having been married, then the fund should be held in trust for the children of the mother's second marriage. Held that a trust, and not a power, was created in favor of the daughter, her husband and children; but that the mother, if she thought fit, might modify the interests of the cestuis que trust, on the daughter marrying with her consent.

By the settlement on the marriage of Jane Thompson, widow, with Sir Everard Home, dated the 2d November, 1792, Jane Thompson assigned the sum of 2,300l., to which she was entitled under the will of her late husband, to trustees, in trust, subject to her appointment by any note or writing under her hand, for her separate use during her life. The settlement then declared that, subject to the separate right and interest of Jane Thompson, during her life, in and to the interest of the 2,300l., the same should, as and whenever the said Jane Thompson should think fit or be advised, be settled upon trust for the benefit of Amelia Thompson, her daughter and only child by her late husband, and of her intended husband and her child or children, in such manner and for such rights and interest as should be agreed upon, either previous to or after the marriage of the said Amelia Thompson with the consent and approbation of the said Jane Thompson her mother; and that the said Jane [*640] *Thompson should, by virtue of this settlement, be at

Croft v. Adam.

free liberty and have full power and authority to settle the 2,300, or any part thereof, in trust for the immediate benefit of her said daughter and her child and children in manner aforesaid, to take effect either upon such marriage, or upon or immediately after the decease of the said Jane Thompson, as she should think fit, notwithstanding her coverture, and whether married or sole; but if Amelia Thompson should not be married in her mother's lifetime and should her survive, then that the 2,300% should be upon trust for the benefit of Amelia Thompson, and should be a vested interest, and assigned or transferred to her upon her attaining the age of 21 years, or on her marriage before that age, as the event should happen: but if Amelia Thompson should die in her mother's lifetime without having been married, then that the 2,3007. should be upon the same trusts as were thereinafter declared concerning the sum of 1,000, The trusts declared of the 1,000l. (which also was the property of Mrs. Thompson) were for the benefit of herself and her intended husband and the children of their marriage.

In 1811, Miss Thompson married Sir Frederick Adam; and, by their marriage settlement, 20,000l. consols, the lady's property and all other property that might come to or devolve upon her during the coverture, were settled in trust for her and her husband and their children: but Lady Home never made any settlement of the 2,300l.

Lady Adam died in June, 1812, leaving a daughter, named Amelia, the only issue of her marriage: and Sir F. Adam took out administration to her. In February, 1833, Miss Adam married Major Boileau. She died a few months afterwards, without issue; and her husband *took out administra- [*641] tion to her. Lady Home survived Sir Everard, and died in May, 1841.

The bill was filed by the trustees of the settlement of 1792, against Sir Frederick Adam, Major Boileau and Lady Home's executors, stating that the defendants severally claimed the

Croft v. Adam.

2,3001; and praying that the trusts of that settlement, so far as they regarded the 2,300l., might be carried into execution under the direction of the court.

The cause now came on to be heard as a short cause.

Mr. G. Richards and Mr. G. L. Russell appeared for the plaintiffs.

Mr. Stuart and Mr. J. Baily for Major Boileau, and Mr. Romilly for Sir Frederick Adam, said that the clause contained in the settlement of 1792 in favor of Miss Thompson, her husband and children, created, not a mere power, but an executory trust, subject to Lady Home's life-interest: that the second branch of the clause, commencing with the words: "And that the said Jane Thompson shall, by virtue of this settlement, be at free liberty," enabled the mother to extend her bounty to her daughter in her lifetime; Brown v. Higgs,(a) and Brown v. Pocock :(b) that, if it were necessary to have recourse to implication in this case, a trust for Lady Adam might be implied from the circumstance that the 2,300l. was not given over, except in the event of her dying unmarried in her mother's lifetime, which had not happened.

[*642]

*Mr. Bethell and Mr. Elmsley, for Lady Home's executors, said that the cases in which words apparently importing a power, had been held to create a trust, were cases in which the donor and the donee were distinct persons; but, in the present case, Lady Home was the absolute owner of the 2,300, and also both the donor and the donee of the power: that the clause under discussion could not be divided into two parts, as had been contended for the other defendants, but must be taken altogether; and that the language of the clause throughout, and more especially the words: "as and whenever the said Jane Thompson shall think fit or be advised," and the words: "in such manner and for such rights and interests as shall be agreed upon," showed that Lady Home, (who was under no obli gation whatever to settle the fund on her daughter, her husband (a) 8 Ves. 561.

(b) Ante, Vol. VI. p. 257.