Hutchinson v Tottenham

• Jurisdiction: Ireland
• Judge: V.-C.
• Judgment Date: 23 February 1899
• Court: Court of Appeal (Ireland)
• Docket Number: (1898. No. 713.)
• Date: 23 February 1899

HUTCHINSON

and

TOTTENHAM

Before LORD ASHBOURNE, C., and FITZ GIBBON and HOLMES, L.JJ.

Appeal.

Power — Execution — Referential construction — Hotchpot clause.

344 THE IRISH REPORTS. [1899. V.-C. THE VICE-CHANCELLOR made an order directing the Taxing 1899. Master to review his taxation by allowing the above-mentioned M'CANN V. IU wits TowN Commis SIONEBB. Appeal. HUTCHINSON v. TOTTENHAM (1). 1899. Jan. 30, 31. Feb. 1, 2, 23. Power—Execution—Referential construction--Hotchpot clause. APPEAL by Sophia Dorothy H. Hutchinson from the judgment of the Vice-Chancellor reported [1898] 1 I. B. 403. Twigg, Q.C., Samuels, Q.C., and Brady, for the appellant. O'Connor, Q.C., and 0. Fitz Gibbon, for Cecil H. Hutchinson and Eleanor H. Hutchinson. Feb. 23. THE COURT OF APPEAL affirmed the decision of the Vice-Chancellor. Solicitors for all parties : T. T. .1ffeeredy 8f Sons. R. D. M. (1) Before LORD ASEIBOURNE, C., and Frrz GIBBON, and Horms, L.H.

Hutchinson

and

Tottenham.

V.-C.

(1898. No. 713.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1898.

Power — Execution — Excessive appointment — Appointment to object for life, with power to appoint by will — Perpetuity — Delegation — Appointment to children of S. born in testator's lifetime — Gift over if S. should die without leaving any child — Referential construction — Hotchpot clause — Two funds.

By marriage settlement certain judgment moneys of the husband were settled upon trust, after the death of the husband and wife, for the children, grandchildren, or other issue of the marriage, born in the lifetime of the husband and wife, or one of them, in such shares as they or the survivor should appoint, and in default of appointment, for the children, being sons, attaining twenty-one, or being daughters, attaining twenty-one, or marrying: and certain government stock (the wife's fortune) was settled upon trust, after the death of the husband and wife, thereout to pay £1000 to each of the children when being sons they attained twenty-one, or being daughters they attained twenty-one or married, and as to the residue of the said stock for the children, grandchildren, or other issue of the marriage, to be born in the lifetime of the husband and wife or one of them, in such shares as they or the survivor should appoint, and in default of appointment, for the children being sons attaining twenty-one, or being daughters attaining twenty-one, or marrying. The settlement contained a proviso that in case any appointment should be made in pursuance of the powers therein contained or either of them, which should only extend to a part or parts of the said judgment moneys and stock, such appointment should be valid, notwithstanding the non-appointment of the remaining part or parts thereof, but in that case any child entitled to a share under such appointment should be entitled to no further share of the unappointed part or parts of the said respective trust moneys, stocks, &c., unless and until he or she should have brought his or her appointed share into hotchpot.

There were children of the marriage two sons and a daughter. The husband died without having joined in any appointment, leaving his wife surviving. Two granddaughters were born in her lifetime. She by her will appointed the judgment moneys to one son, and after reciting the settlement of the stock, and that £1000 was to be paid thereout to each child, she appointed £10,000 thereof to her daughter, and as to the residue of the said stock, she appointed it to trustees upon trust to pay the income to the other son for life, and after his decease upon trust for such one or more of his children born in her own lifetime, and in such shares as he should by will appoint, and in default for such persons as he should by will appoint, with a gift over in case the son should die without leaving any children, or remoter issue him surviving.

The testatrix made a codicil by which she revoked the appointment of the £10,000 stock, and appointed same to trustees upon trust for her daughter for life, and after her death for her child or children, born in the testatrix's lifetime, in such shares as the daughter should by deed or will appoint, and in default of such appointment for such children share and share alike: provided that if her said daughter should die without leaving any child or children, the trustees should hold the said trust funds upon trust for the testatrix's said granddaughters.

Held (1), that the limitations in the will of the residue of the stock, subsequent to the appointment of the life interest to the son, were void for remoteness; and that the power of appointment to the son was a delegation of the power given by the settlement, and void, and that, so far, those limitations were void on this ground also. (2) That the limitations in the codicil after the daughter's death constituted a direct valid appointment to the daughter's children, born in the testatrix's lifetime, leaving it to the daughter only to appoint the shares in which they should take; that the latter power was separable from the appointment to the daughter's children, and void as a delegation, leaving the appointment to the children unaffected; and, applying Ellicombe v. Gompertz (3 My. & Cr. 127), that the gift over was to be construed as applying only to the failure of children of the daughter, born in the testatrix's lifetime, and that the appointment to the granddaughters was valid. (3) That the single hotchpot clause applied to all the funds without distinction, and that the son to whom the judgment moneys were appointed was bound to bring his interest into hotchpot.

Adjourned Summons.

By an indenture of settlement dated the 23rd August, 1834, and made on the marriage of the Hon. Coote Hely Hutchinson and Sophia Synge Hutchinson, reciting that the said Coote H. Hutchinson was absolutely entitled to the principal sums of £1031 13s. 4d., £1384 12s. 3d., £1737 12s. 3d., and £276 18s. 6d., amounting together to £4430 16s. 4d., and the several judgments and securities for the same, mentioned in an assignment of equal date to the trustees of the settlement, and that the father of the said Sophia S. Hutchinson had transferred to the said trustees £20,000, 3¹/₂ per cent. government stock, as the marriage portion of the said Sophia S. Hutchinson, it was declared that the trustees should hold the said principal sums upon trust to pay the interest thereof to Coote H. Hutchinson during his life, and after his decease, in case he should die in the lifetime of Sophia S. Hutchinson, to pay the same to her during her life, and after the decease of the survivor then as to the said sums in trust for all or any one or more of the children or grandchildren or other issue of the said Coote H. Hutchinson and Sophia S. Hutchinson, such grandchildren or other issue to be born in the lifetime of the said Coote H. Hutchinson and Sophia S. Hutchinson, or one of them, for such interest or interests, either present or future, and in such parts, shares, or proportions, and subject to such conditions, restrictions, and limitations over in favour of any other or others of the said children, grandchildren, or other issue, and with such directions, &c. as the said Coote H. Hutchinson and Sophia S. Hutchinson should by deed appoint, or as the survivor should by deed or will or codicil appoint, and in default of such appointment and subject, &c. in trust for their children, in the case of sons attaining twenty-one, and in the case of daughters attaining that age or marrying, in equal shares, with an ultimate limitation to Coote H. Hutchinson: and it was declared that the trustees should hold the said £20,000 government stock upon trust, out of the interest and dividends thereof to pay to Sophia S. Hutchinson the annual sum of £200 for her separate use; and as to the residue of the said interest and dividends during her life, and as to the entire interest and dividends after her decease in case she should die in the lifetime of Coote H. Hutchinson, upon trust to permit him to receive the same during his life, and after his decease in case Sophia S. Hutchinson should survive him, upon trust to permit her to receive all the interest and dividends of the said government stock during her life, and after the decease of the survivor, as to the said £20,000 government stock, in trust thereout to pay £1000 to the child if only one, and the like sum to each of the children if more than one, of the said Coote H. Hutchinson and Sophia S. Hutchinson, when being sons they should attain the age of twenty-one years, or being daughters they should attain that age or be married, and as to the residue of the said £20,000 government stock which would remain after the payment of such sum of £1000 to each of such children respectively as aforesaid, in trust for all or any one or more of the children or the grandchildren or other issue of the said Coote H. Hutchinson and Sophia S. Hutchinson, such other issue to be born in the lifetime of the said Coote H. Hutchinson and Sophia S. Hutchinson, or one of them, for such interest or interests, either present or future, and in such parts, shares, or proportions, and subject to such conditions, restrictions, and limitations over in favour of any other or others of the said children, grandchildren, or other issue, and with such directions or regulations for maintenance, education, and advancement, and to be transferred or assigned at such age or ages, either absolutely or upon such contingencies as the said Coote H. Hutchinson and Sophia S. Hutchinson should by deed, or as the survivor of them should by deed or will or codicil appoint; and in default of such appointment, and subject to any appointment which should not be a complete disposition of the whole of the said trust funds, in trust for all and every the child and children of Coote H. Hutchinson...