1832. LIMBARD ย. GROTE. There were issue of the marriage two children; Robert Henry Peckwell, afterwards Sir Robert Henry Blosset, and a daughter named Selina Mary. After the death of the father, the daughter intermarried with George Grote, and by the settlement made in contemplation of that marriage, dated the 7th and 8th days of October 1793, it was provided that all the estate and interest to which Selina Mary should become entitled after the death of her mother, by virtue of the settlement of 1773, should be settled to the use of the husband for life; remainder to the wife for life; remainder to such one or more of the children of the marriage as the husband and wife jointly, or the survivor should appoint; and for default of appointment, to the children equally. Afterwards, by a deed poll, dated the 23d of December 1807, Bella Peckwell executed the power of appointment under her marriage settlement, and thereby appointed all the lands and money to which her power extended, to her son, Sir Robert Henry Blosset, to be an immediate vested interest in him, but to take effect in possession after her death, charged with the payment thereout, after her death, of a sum of 3000l. to the trustees of her daughter's marriage settlement, upon the trusts, interests, and purposes expressed in the said settlement, and which sum was, by the said deed poll, stated to be appointed and intended to be taken and received in full satisfaction of all the share and interest of her said daughter under the marriage settlement of her the said Bella Peckwell. The material question in the cause was, whether this appointment of the mother was a valid execution of her power, not being in form, as it applied to the daughter, an appointment to a child of the marriage, but for the benefit also of the husband of the daughter and of the daughter's daughter's children, who were not objects of the mother's power of appointment. Mr. Sidebottom, for the appointees, cited White v. St. Barbe (a), where it was held that under a power to appoint among children, interests might be given to grandchildren by way of settlement, with the concurrence of their mother, an object of the power, and her husband. So in Langston v. Blackmore (b), an appointment to a son, remainder to such wife as he should marry, remainder to his issue, under a power to appoint to children, was held good, inasmuch as the son might, if the appointment had been made to him absolutely, have immediately afterwards settled the property in the same manner. If, however, the appointment in favour of Mrs. Grote should be held to be bad, then the whole would enure to the benefit of Sir Robert Henry Blosset, in whose behalf the power was well executed. Alexander v. Alexander (c), Palmer v. Wheeler. (d) Mr. Tinney, contrà, contended that the appointment was bad, inasmuch as it was an appointment to persons who were not objects of the power. If the appointment were bad, such part of the fund as was ill appointed would go to the children, to whom it was limited in default of appointment. Routledge v. Dorril. (e) The MASTER of the ROLLS. The appointment of the 3000l. by the mother is substantially an appointment to the daughter, being in execution of the daughter's contract in her marriage settlement, and is therefore a valid appointment. (a) 1 V. & B. 199. (b) Ambl. 291. (c) 2 Ves. sen. 640. (d) 2 Ball & Beat. 18. 1832. LIMBARD V. GROTF. 1832. ROLLS. Nov. 5. 12. Dec. 14. A testator bequeathed a legacy of 40cl. to his executors, upon trust to pay the same to his son, in such smaller or larger portions, at such time or times, and in such way or manner as they should in their judgment and discretion think best: PIERCY v. ROBERTS. THOMAS ROBERTS, by his will dated the 18th of January 1829, bequeathed to his executors the sum of 4007. upon trust, to pay, apply, and dispose thereof, and of the interest and produce thereof, to and for the sole use and benefit of his son, Thomas Jortin Roberts, in such smaller or larger portions, at such time or times immediate or remote, and in such way or manner as they the said executors, or the survivor of them, or the executors or administrators of such survivor, should in their judgment and discretion think best: and, after bequeathing to his executors the further sum of 4007. upon similar trusts, for the benefit of his son John Prowling Held, that the Roberts, the testator proceeded as follows: —“ And, in case of the deaths of either or both of said sons, Thomas Jortin and John Prowling, before the whole of the said several sums of 400l. and 400l., and the interest thereof respectively, shall have been paid or applied for the purposes aforesaid, then I will and direct that the unapplied part or parts thereof respectively shall sink into and become part of my residuary personal estate, and go go and be applied therewith as hereinafter mentioned:" and the testator thereby appointed his wife, Ann Roberts, his residuary legatee, and the said Ann Roberts and John Jortin executors of his said will. discretion of the executors was determined by the insolvency of the legatee, and that the legacy vested in the assignee of the insolvent. In a suit by the assignees of a bankrupt's or insolvent's estate, it is not competent to the Defendant to object that the suit has been insti tuted without the consent my The testator died in July 1829, and in May 1830 the testator's son Thomas Jortin Roberts took the benefit of the of the major part in value of the creditors, as required by the Bankrupt and Insolvent Debtors' Acts. The judgment in such a suit will bind the creditors, but the assignees take upon themselves the responsibility that the suit has been properly instituted and properly conducted. the Insolvent Debtors' Act. Previously to May 1830, Thomas Jortin Roberts had received several sums from the executors, amounting in the whole to 156l.; and since that period, and before the filing of the bill, he had received several other sums, amounting together to 1127. The bill was filed by the assignee of the insolvent's estate against the executors of the testator, to recover the legacy of 4007. and the interest thereof, or so much thereof as remained unpaid at the time of the discharge of the legatee under the Insolvent Debtors' Act. Mr. Bickersteth and Mr. Girdlestone, jun., for the Plaintiff. The discretion given by this testator to his executors was a discretion subject to the incidents of property, and consequently terminable by the bankruptcy or insolvency of the legatee. The Defendants insist that the insolvency of the legatee was an event in the contemplation of the testator, and that upon that event they had a right to exercise their discretion either in continuing or withholding further payment. In point of fact, they have continued to make payments to the legatee after his insolvency. All that it is necessary to consider, therefore, is whether such an exercise of discretion is permitted by law. Attempts have frequently been made by testators to give property in such a manner as to prevent the use and enjoyment of it from being interrupted by the bankruptcy of the legatee, but such attempts have been uniformly rendered unavailing by the decisions of this Court. Brandon v. Robinson (a), Ross v.Ross (b), Graves v.Dolphin.(c) In Graves v. Dolphin, your Honor held that the policy of the law does not permit property 1832. PIERCY ย. ROBERTS. (a) 18 Ves. 429. (b) 1 J. & W. 154. (c) 1 Sim. 66. 1832. PIERCY v. ROBERTS. property to be so limited, that it shall continue in the enjoyment of a bankrupt notwithstanding his bankruptcy; and, by parity of reason, the law will not permit property to continue in the enjoyment of an insolvent notwithstanding his insolvency. Mr. Pemberton, and Mr. Elderton, for the Defendants. It is perfectly true, that where a vested interest is given to a legatee, the property so given cannot be separated from its incidents; and this is the circumstance which distinguishes all the cases that have been cited from the present. In Brandon v. Robinson, Lord Eldon held the interest given to the bankrupt to be a vested interest, and therefore capable of passing by the assignment under the commission of bankruptcy. To prevent such an effect, he observed, there must have been a limitation over. The same observation applies to Graves v. Dolphin (a). So in Ross v. Ross (b), the interest was to vest when the bankrupt attained the age of twenty-five; and he had, in fact, attained that age. In the present case, there is the very circumstance which, according to the distinction taken by Lord Eldon in Brandon v. Robinson, would have prevented the interest in that case from passing to the assignee. There is a limitation over to the residuary legatee, in the event of the whole of the 400l. and interest not being paid in the lifetime of the legatee. It is certain that there is no law which prevents a man from so restricting the benefit of a bequest, that it shall cease on the insolvency of the legatee; and why may he not so restrict it that it shall cease at the discretion of the executors? If the law permit a man to limit his property over absolutely on the insolvency of a legatee, what is to prevent him from so limiting it conditionally? The assignee of an (a) 1 Sim. 66. insolvent (b) 1 J. & W. 154. |