1838. THE HOLE v. ESCOTT. HE material facts and the several instruments upon which the questions in this cause arose are fully stated in Mr. Keen's report of the case upon the hearing at the Rolls. (a) se June 5. 9. A husband, settled an esupon marriage, tate to the use of himself for life, with remainder to the use of trustees to preserve contingent remainders, with remainder to the use of The Master of the Rolls having decided that the joint appointment by the husband and wife and the parate appointment by the wife surviving were both ineffectual, and made a decree for a general account of the rents and profits of the estates comprised in the term of years, appointments, the two children of the marriage who claimed under the appointments appealed against whole decree. the Mr. Wigram, and Mr. West, for the Plaintiffs, and Mr. Chandless, for a Defendant in the same interest, in support of the decree, contended that the joint power was either totally extinguished by the bankruptcy, or, if not, that, at all events, the husband could not be permitted to derogate from his own act, so as, by any sub sequent exercise of the power, to take from his assignees trustees for a to secure a jointure for the wife, with remainder to the use of such children of the marriage as the husband jointly, or, in and wife default of a joint appointment, the sur vivor of them should appoint, with remainder, in default of such appointment, to the children of the marriage equally, with remainder to the right heirs of the husband. The husband became bankrupt, and after his bankruptcy, he and his wife made a joint appointment in favour of two of the children of the marriage. The husband then died, and a bill having been subsequently filed by a person claiming under the bankruptcy, for an account of the rents of the settled estate, the wife thereupon executed a separate appointment in favour of the same children, which she stated in her answer. Held, first, that the joint appointment was inoperative, on the ground that the husband could not, by a subsequent execution of the power, deprive his assignees of an estate which had been once vested in them by his bankruptcy; secondly, (by implication,) that such joint appointment could not be considered as the separate appointment of the wife, who survived; and, thirdly, that the wife's separate appointment after the husband's death was a good exercise of the power; and that the account of the rents prayed by the bill could not be extended beyond the date of that appointment. 1838. HOLE บ. ESCOTT. property which had been once vested in them by the operation of the bankrupt laws. On this point they referred to and relied upon Badham v. Mee (a), and Sir E. Sugden's remarks upon that case (b), together with the several bankrupt acts, 34 & 35 Hen. 8. c. 4. s. 1., 13 Eliz. c. 7. s. 2., and 21 James 1. c. 19. s. 9.; and they also referred to the following cases: - Albany's Case (c), King v. Melling (d), Higden v. Williamson (e), Edwards v. Sleater (g), Jewson v. Moulson (h), Smith v. Death (i), Horner v. Swann (k), West v. Berney (1), Bickley v. Guest (m), Doe v. Britain. (n) They further insisted that the joint appointment by the husband and wife, made after the bankruptcy, could not, upon any sound principles of construction, be held to operate as a good appointment by the survivor, the wife not having at that time acquired the character of survivor; Mac Adam v. Logan. (0) Lastly, they submitted that the separate appointment by the wife, executed after the husband's death, and after the filing of the bill, was ineffectual, on the ground that the power itself had failed, upon the husband's decease, for want of an estate of freehold to support it. They argued, that wherever a limitation could be construed to take effect by way of remainder, it should never be allowed to operate as an executory devise or springing use; Fearne on Contingent Remainders (p), Doe v. Morgan. (q) (a) 1 Mylne & Keen, 32.; and 7 Bing. 695. (b) Sugd. on Powers, vol. i. p. 80. 6th ed. (c) 1 Rep. 107. (d) Vent. 214. 225. (e) 3 P. Wms. 132. (g) Hard. 410. (i) 5 Mad. 371. (k) T. & Russ. 430. (9) 3 T. R. 763. Sir Sir W. Follett and Mr. Richards, in support of the appeal, made two points, and contended, first, that the joint power was not affected by the bankruptcy of the husband, but that the appointment by him and his wife, though posterior to that event, was a good execution of the power; and secondly, if not, that the appointment by the wife after the bankrupt's death, and after the filing of the bill, was, at all events, a good execution of the separate power given to the survivor. With respect to the first point, in addition to the cases referred to on behalf of the Plaintiffs, they cited and commented upon the following authorities; -Ren v. Bulkeley (a), Tyrrell v. Marsh (b), Thorpe v. Goodall (c), Long v. Rankin (d), Jones v. Winwood (e), Sanders on Uses. (g) Upon the second point, they referred to Purefoy v. Rogers (h), Duke of Marlborough v. Godolphin (i), Doe v. Martin (k), Fearne on Contingent Remainders (1), Sir E. Sugden's note to Gilbert on Uses (m), and Sugden on Powers. (n) 1838. HOLE บ. ESCOTT. The LORD CHANCELLOR. The facts of this case are fully stated in the second volume of Mr. Keen's Reports. (0) It is not necessary, therefore, for me to re-state them. The objections made to the two appointments upon which the title of the children rested are totally distinct. 1. To (a) Doug. 292. (b) 3 Bing. 31. (c) 1 Rose 40.; and 17 Ves. 388. (d) Sugd. Powers, vol. ii. p. 539., 6th ed. App. (e) In the Court of Exchequer; now reported, 3 Mees. & Wels. 653. (g) Vol. i. p. 169. (h) 2 Saund. 580., and the note by Serjt. Williams. (i) 2 Ves. sen. 61. (k) 4 T. R. 39.. (m) P. 153. (n) Vol. ii. p. 252., 6th ed. Nov. 24. 1838. HOLE บ. ESCOTT. 1. To the joint appointment by the father and mother, after the father's bankruptcy, two objections were made; first, that the power was extinguished by the bankruptcy; secondly, that if not extinguished, no title could be obtained under the execution of it, inasmuch as the bankrupt could not be permitted to destroy the title of his assignees. Upon the first point, I do not propose to express any opinion. It is not necessary that I should do so, for the purpose of the judgment which I propose to pronounce; and, considering the doubt that exists as to the grounds of the opinion of the Court of Common Pleas in the case of Badham v. Mee (a), I think it inexpedient and unnecessary to discuss the question. Supposing, then, that the bankruptcy of the father and the proceedings thereupon did not extinguish the power, could the father, after his bankruptcy, execute the power, and thereby take from his assignees the fee of the property, for the purpose of bestowing it upon his children? At the date of the bankruptcy he had an estate for life, with, as the event turned out, an immediate remainder to himself in fee, subject to a rent charge of 50l. for his wife surviving, and a term to secure it; the estate limited to the children in default of appointment failing, as it is admitted, for want of a particular estate to support it. He had indeed a power, with his wife's concurrence, of defeating this remainder in fee by appointing estates to his children; but that power, I will assume, had not been executed. (a) 7 Bing. 695. The The statute 13 Eliz. c. 7. s. 2. enables the Commissioners to dispose of any estate, for such use, right, or title as the bankrupt shall have in the same, which he may lawfully depart withal; and the statute 21 James 1. c. 19. s. 1. directs that the bankrupt laws shall be expounded most favourably for the relief of creditors. Now, up to the time of the bankruptcy, the bankrupt might, undoubtedly, have departed with his life estate and his remainder in fee; and if he had done so, in terms, could he afterwards have executed the power so as to take away the fee for the purpose of giving it to the children? I apprehend, not. It was entirely optional in him whether the children should, or should not, have any interest in the estate. There was no right in them—no equity entitling them to call upon the father to execute the power in their favour. The appointment, therefore, would have been a voluntary act by the grantor defeating his own grant. He might have parted with his life estate and his fee; and the statute takes from him and vests in his assignees all that he might have departed with. In Badham v. Mee, as reported in the 1st volume of Mylne & Keen's Reports (a), it was not contended that the appointment could prevail so as to interfere with the bankrupt's ultimate reversion, or beyond that interest which would have belonged to the children in default of appointment. Sir Edward Sugden, in his observations. upon Badham v. Mee (b), also assumes, as I understand the passage, that the appointment would be void as against the assignees. If, then, the estate for life and the fee, unaffected by any execution of the power, passed to the assignees, the bankrupt could not, by a subsequent execution of the power, deprive them of it: Doe v. Britain. (a) P. 44. (b) Treat. on Powers, vol. i. p. 80., 6th ed. 1838. HOLE v. ESCOTT |