1847. Nov. 20th. A donee of a power affecting two sums of Stock of different de scriptions, appointed a gross amount, part of one of them, and exceeding one-fourth part of it. Afterwards, she executed succes sively, deeds purporting to appoint aliquot parts of both funds, as one subject, and without noticing the previous appointment of the gross sum, which was By TROLLOPE v. ROUTLEDGE. an indenture of July 7, 1789, being the marriage settlement of Thomas and Ann Trollope, certain funds were settled upon trust for the husband and wife and the survivor, for their lives and the life of the survivor, with remainder in trust for all or any of the children of the marriage, in such parts, and subject to such limitations over, being for the benefit of some or one of such children as the husband and wife, or the survivor, should appoint, and in default of appointment, and subject thereto, upon trust for all the children equally, with survivorship clauses. Mrs. Trollope survived her husband, who died leaving four children of the marriage-viz., Frances Trollope, Anna Barne Broome, George Trollope, and John Trollope. By an indenture of appointment, dated 1st of October, never severed 1819, made between Ann Trollope, then a widow, of the first part, the Rev. Arthur Eugenius Broome and Anna tees comprised Barne Broome, his wife, of the second part, and Robert all the parties from the mass. The appoin entitled, sub- Routledge and Henry Sweeting, (the then trustees of the pointment, and settlement,) of the third part; after reciting the settlement A tenant for life of a trust fund, with power to appoint the reversion to a child, appointed a portion of the reversionary fund to a daughter absolutely, by a deed to which the daugh ter, the daughter's husband, and the trustees of the fund were parties; and by the same deed she assigned her life interest in the appointed portion, to the daughter absolutely. By a subsequent witnessing part, it was expressed to be agreed and declared by and between all the parties, that the appointed portion should be held on trust for the daughter's separate use, during her life, and afterwards on trusts for her husband and children :-Held, that, (independently of any question as to the merger of the life estate), the trust for the separate use was good. But quare, whether the limitations of the subsequent interests were effectual. The rule that the costs arising from difficulties of construction fall on the residuary estate, does not apply to an unappointed portion of a fund. Sweeting, as the surviving trustees of the settlement, the sum of 36417. 3s. 4d., 4l. per cent. Consolidated Bank Annuities; and that Ann Trollope, being desirous of making some provision for her daughter, Anna Barne Broome, had, at the request of Arthur Eugenius Broome and Anna Barne Broome, determined and agreed, in exercise and execution of the power and authority to her given by the settlement, to give and appoint the sum of 1184l. 3s. 4d., 4l. per cent. Consolidated Bank Annuities, part of the said sum of 3641l. 3s. 4d., like Annuities, unto or for the benefit of Anna Barne Broome, and also in her favour to relinquish and give up the life interest of her, the said Ann Trollope, of and in the said sum of 11847. 3s. 4d., 4l. per cent. Consolidated Bank Annuities, so to be appointed, and the dividends and interests thereof, in manner thereinafter mentioned; and that it had been agreed between the said parties thereto, that the said sum of 11841. 38. 4d., 4l. per cent. Consolidated Bank Annuities, so to be appointed as aforesaid, should be settled upon such trusts and in such manner as was thereinafter mentioned: It was witnessed, that, in pursuance and part performance of the said determination and agreement, and in consideration of the natural love and affection which the said Ann Trollope had for her daughter, the said Anna Barne Broome, and by virtue and in exercise and execution of the power and authority to her given or reserved in and by the said indenture of settlement, and by virtue and in exercise and execution of every other power, right, or authority whatsoever in her vested, or in anywise enabling her in that behalf, the said Ann Trollope irrevocably gave, limited, and appointed the sum of 11847. 38. 4d., part of the said sum of 3641l. 3s. 4d., 4l. per cent. Consolidated Bank Annuities, unto and for the benefit of the said Anna Barne Broome, to and for her own absolute use and benefit, and to be a vested interest in her immediately after the execution of that indenture. And it was further witnessed, that, in further pursuance and 1847. TROLLOPE บ. ROUTLEDGE. 1847. TROLLOPE V. ROUTLEDGE. performance of the said determination and agreement, Ann Trollope gave, assigned, released, and quit-claimed unto the said Anna Barne Broome, her executors, administrators, and assigns, all the dividends, interest, and annual produce whatsoever, thenceforth during the life of the said Ann Trollope to arise or become payable for or in respect of the said sum of 1184l. 3s. 4d., 4l. per cent. Consolidated Bank Annuities, to hold the same unto the said Anna Barne Broome, her executors, administrators, and assigns, to and for her and their own absolute use and benefit. And it was by the said indenture further witnessed, that, in pursuance of the said recited agreement in that behalf, it was thereby agreed and declared by and between all the said parties, and particularly the said Ann Trollope and the said Edward Eugenius Broome and Anna Barne Broome, his wife, did thereby respectively consent and direct, that, from and immediately after the execution of the said indenture, the said Robert Routledge and Henry Sweeting, and the survivor of them, his executors, administrators, and assigns, should stand possessed of the said sum of 11847. 3s. 4d., 4l. per cent. Consolidated Bank Annuities, thereby appointed to or in favour of the said Anna Barne Broome as aforesaid, upon the trusts thereinafter declared that was to say, upon trust for the separate use of the said Anna Barne Broome for life; and after her decease, upon trust for the said Arthur Eugenius Broome for life; and after the decease of the survivor of them the said Arthur Eugenius Broome and Anna Barne Broome, upon trust for the children of the said Arthur Eugenius Broome and Anna Barne Broome, in such shares as the said Anna Barne Broome, whether covert or sole, should appoint; in default of appointment, amongst the children equally; and if there should be no child of the said Arthur Eugenius Broome and Anna Barne Broome, who should live to attain a vested interest in the said fund, under the trusts of the said indenture, then upon trust for such person or persons as the said Anna Barne Broome, whether covert or sole, should by deed or will limit, direct, or appoint. By an indenture, dated the 14th of August, 1824, made between Ann Trollope, of the one part, and Frances Trollope, of the other part, reciting the settlement of the 7th of July, 1789, and reciting that the trust funds subject thereto then consisted of the sum of 36417. 3s. 4d., 41. per cent. Consolidated Bank Annuities, and 20331. 8s. New 41. per cent. Annuities, Ann Trollope appointed unto Frances Trollope one equal fifth part or share of and in the said sums of Old 4l. per cent. Bank Annuities, and New 41. per cent. Bank Annuities. By an indenture of August 28, 1824, and made between Ann Trollope, of the one part, and John Trollope, of the other part, after reciting to the same effect as in the lastmentioned indenture, Mrs. Ann Trollope appointed another equal fifth part of the same two funds to her son, John Trollope; and afterwards, by an indenture of September 17, 1825, she appointed one-tenth of the sums of 2033l. 8s., New 41. per cent. Bank Annuities, and 37817. 18s. 2d, 3l. per cent. Consolidated Bank Annuities (into which the said sum of 3641l. 3s. 4d., 4l. per cent. Consolidated Bank Annuities had been converted), to her son, John Trollope, in addition to the one-fifth share already appointed to him. By an indenture of 21st January, 1826, she appointed one-fifth part of the same sums of stock to her son, George Trollope; and by the same indenture she appointed onetenth part of the same sums for the benefit of her daughter, Frances Trollope, in addition to the one-fifth already appointed in her favour. Mr. Broome had died, and the life-interest of Mrs. Broome in the sum of 11841. 38. 4d., 4l. per cent. Consolidated Bank Annuities, appointed by the indenture of the 1st of October, 1819, as well as her contingent interest in the capital of that fund, had by different mesne assignments become vested in a Mr. Spong, and the other shares had also been assigned and incumbered. 1847. TROLLOPE V. ROUTLEDGE. 1847. TROLLOPE v. ROUTLEDGE. The present suit was instituted by Frances Trollope, to have the trusts of the settlement carried into effect; and at the hearing various inquiries had been directed. The cause now came on to be heard on further directions, upon the Master's report finding (among other things) to the effect above stated. The first question raised was as to the effect of the appointments of the three one-fifth and two one-tenth shares of the two sums of 36417. 3s. 4d., 4l. per cent. Consolidated Bank Annuities, and 2033l. 8s., New 4l. per cent. Annuities, by the deeds, August 14, 1824, August 28, 1824, September 17, 1826, and January 21, 1826, these appointments being excessive as regarded the former fund, after deducting therefrom the portion appointed by the deed of October 1, 1819, but being insufficient, as regarded the latter fund, to exhaust the whole of it. Under these circumstances it was contended, on behalf of those interested under the appointments of 1824, 1825, and 1826, that the deficiency in the one fund ought to be made good out of the surplus of the other, the appointments being made of both funds, and that Mrs. Broome, or those claiming under her, and the other parties claiming under the earlier appointments, could not take the appointed shares without giving effect to the latter appointments, by giving up their shares in the unappointed part of the 20331. 88., New 4l. per cent. Bank Annuities. It was also contended, in the alternative, on behalf of those claiming under the latest of these appointments, that all the appointments after that of 1819 must be taken to operate upon the residue only, after deducting the gross amount then taken out of one fund. Mr. Bacon and Mr. Renshaw appeared for the plaintiffs. Sir F. Simpkinson, Mr. Swanston, Mr. Sidebottom, and Mr. Roxburgh, for various defendants interested in these questions. |