his will on the 17th of February 1854, by which he recited that he had given £2000 to his eldest son, Charles Edward Parke Gordon, and £2000 to his youngest son, John Henry Gordon; he bequeathed £2000 to Charles Duckett, the youngest son of his deceased daughter, and, if he should die under twenty-one, he bequeathed the said £2000 to his grand-daughter, Harriett Duckett, and he bequeathed a specific sum of £500 to be divided between his said two sons, and he devised and bequeathed some other property to his sons and to his wife, and appointed his sons and Alexander Jopp his executors, and made his sons residuary legatees. The terms of the will are stated in the judgment, infra, p. 187. The petition having been referred to Master Litton, under the 15th section of the Court of Chancery (Ireland) Regulation Act 1850, he, by a decretal order, made on the 16th of June 1860, declared that, by the settlement of the 17th of January 1843, the testator, Charles Edward Gordon, contracted to give to the petitioner, William Duckett, as much money as either of his sons should thereafter receive from him, either by gift in his lifetime, or by bequest, or intestacy, and directed accounts accordingly. The respondents, the sons and executors of the petitioner, appealed from the order. Mr. Brewster and Mr. F. White, for the petitioner. First; the recital in the settlement was binding on the testator and his assets, as a covenant: Hollis v. Carr (a); Wood v. The Copper-miners Company (b); Barkworth v. Young (c); Jones v. How (d); or as a representation: Hodgson v. Hutchinson (e). Secondly; the expression "child's share," in the settlement, means, that there shall be an equal division of his property among his children, so that Mrs. Duckett shall get, an equal share of it: Willis v. Black (f); to the exclusion of specific legacies; and in taking account of the "child's shares," the testator's sons are bound to bring into hotchpot the sums advanced (a) 1 Vern. 431. (e) 1 Sim, & St. 525. (b) 7 Man., G. & Sc. 906. (ƒ) 5 Vin. Ab. 522, pl. 34. 1860. Rolls. DUCKETT v. GORDON. Statement. Argument. 1860. Rolls. DUCKETT 2. GORDON. Argument. Nov. 3. Judgment. to them by the testator in his lifetime, and interest from the date of the advances; for the testator could not act in derogation of to the contract which he had entered into: Andrewes v. George (a); Westcott v. Culliford (b). Mr. Warren and Mr. Forbes Johnson, contra. First; no case has been cited where a mere recital, without something more, has been held to be a covenant: Farrell v. Hildridge (c). The recital is so vague and uncertain, that it would be very difficult to carry it into effect; but if any intention can be collected from it, it would appear to be that Mrs. Duckett was to receive a portion conditionally on her surviving her father. Secondly; if it amounts to an unconditional covenant, the true construction of it was, that the testator had an unlimited power of disposition, during his lifetime, and his daughter would be entitled only to a share of the assets of which he should die possessed : Logan v. Wienholt (d); Lord St. Leonards' Handy Book of Property Law, p. 106; Jones v. Martin (e); Randall v. Willis (f) ; Eyre v. Munro (g). The MASTER OF THE ROLLS. This case is an appeal from the decretal order of E. Litton, Esq., the Master in the matter, which order was signed on the 16th of June. The petition was filed by the petitioner William Duckett, Esq., claiming to be a creditor by covenant, of the late Colonel Charles Edward Gordon deceased, whose assets are sought to be administered in this suit. The facts of the case are as follow:The petitioner William Duckett was, on and previous to the 17th of January 1843, seised for life of the lands of Rathellin, with a power to the said William Duckett, when in possession, to charge said lands with a jointure for any wife he should marry, at the rate of £10 per cent. by the year, for each £100 such wife should bring (a) 3 Sim. 393. (c) 4 C. B. 840. (e) 5 Ves. 265. (g) 3 K. & J. 309. (b) 3 Hare, 265. or give to him, the said William Duckett, as her portion. I have not seen the instrument creating the power, but I have stated it from a recital contained in the settlement which I shall just now refer to. The said William Duckett was also seised in fee of the lands of Rathlyon and Coppenagh, situate in the county of Carlow. The said William Duckett being so seised, a settlement was executed, in contemplation of his marriage with Harriett Isabella Anne Gordon, daughter of the said Colonel Gordon. The settlement bears date the 17th of January 1843, and was made and executed by and between the said William Duckett, of the first part, Colonel Gordon and his said daughter, of the second part, and certain trustees, of the third and fourth parts; and, after reciting the facts I have stated, it further recites that, upon the treaty for said intended marriage, it was agreed that, in order to make a suitable provision for the said Harriett I. A. Gordon, as well during the lifetime of the said William Duckett, by way of pin-money, as, after his decease, by way of jointure, he, the said William Duckett, should settle, convey and assure the said several lands and premises upon the trusts thereinafter expressed; and then there is a recital in the following words:" And whereas the marriage portion of the said Harriett Isabella Anne Gordon is to be paid to the said William Duckett, and whereas the said Charles Edward Gordon is minded and desirous to give unto his daughter, the said Harriett Isabella Anne Gordon, as a marriage portion, such sum or child's share as he may be enabled to dispose of, which child's share it is calculated will be at the least £5000, but the same, or the precise amount thereof, cannot be ascertained until the decease of him the said Charles Edward Gordon; and whereas, in the event of the portion of the said Harriett Isabella Anne Gordon falling short of £5000, the said William Duckett could not charge the said lands of Rathellin with a jointure of £500 per annum, it was agreed, by and between the said parties, that the other. lands hereinafter mentioned, and of which the said William Duckett is so seised in feesimple, should be charged and incumbered with the entire of said sum of £500, or so much thereof as the said William Duckett would be unable to charge upon the said lands of Rathellin, in aid of, and 1860. Rolls. DUCKETT บ. GORDON. Judgment. 1860. Rolls. DUCKETT 2. GORDON. Judgment. subsidiary to, the charge hereinafter to be made upon the said lands of Rathellin it being the true intent and meaning of the parties hereto that, under any circumstances, the said Harriett Isabella Anne Gordon should have her jointure of £500 effectually charged upon the lands hereinafter granted and appointed, or intended so to be;" and, after such recitals, it was, by the said indenture, witnessed that, "in pursuance of the said agreement, and in consideration of said intended marriage," &c., the said William Duckett conveyed the said lands of Rathellin to the said trustees, of the fourth part, for the term of ninety-nine years, on trust that they should, out of the rents and profits, pay £100 a-year to the said Harriett, by way of pin-money; and, subject to the said trust, to the use of said William Duckett for his life; and the indenture further witnessed that, "in consideration of the said intended marriage, and in consideration of the portion or fortune of the said Harriett Isabella Anne Gordon, agreed to be paid, as herein before stated, to the said William Duckett," he, the said William Duckett, in pursuance of the recited power of jointuring, charged the said lands of Rathellin with a jointure of £500 a-year for the said Harriett; and the indenture further witnessed that, "in further pursuance of the said agreement, and for and in consideration of the said intended marriage," &c., the said William Duckett conveyed to the said trustees, of the third part, the said lands of which the said William Duckett was seised in fee, upon trust that, in case the said William Duckett did not, in his lifetime, receive a portion with the said Harriett sufficient to enable him, under the power hereinbefore mentioned, to charge the jointure of £500 on the said lands of Rathellin, that the rents of the fee-simple lands, so conveyed to the said trustees, of the third part, should be applied to pay such jointure, or to make up the deficiency therein. The marriage took place shortly afterwards, and the petitioner William Duckett, and his said wife, had four children, three sons and a daughter. The said Colonel Charles Edward Gordon had three children, viz., his said daughter Harriett I. A. Duckett, and two sons, Charles Edward Parke Gordon and John Henry Gordon. The said Harriett I. A. Duckett died in her father's lifetime, and before the making of his will, hereinafter mentioned, and her father made no provision for her in his lifetime, and made no payment to the petitioner in pursuance of the covenant or contract contained in the said marriage settlement. The said Colonel Charles Edward Gordon made his will, dated the 17th of February 1854, and he thereby directed his debts and funeral expenses to be paid; and after reciting that in his lifetime the testator had given £2000 to his eldest son, Charles Edward Parke Gordon, captain in the 75th Regiment, for the purchase of his commission, and further reciting that the testator had given, in his lifetime, £2000 to his youngest son, John Henry Gordon, to set him up in the business of wine-merchant, the will proceeds thus:"And now that my beloved daughter Harriett Isabella Anne Gordon has died, I give, devise and bequeath to her youngest son, Charles Duckett, the sum of £2000, upon my death, to be held in trust for him until he attains the age of twenty-one years, and the interest thereon to be used towards his education, and such expenses as may be deemed necessary during his minority;" and in the event of the said Charles Duckett dying under twenty-one, the testator bequeathed the said sum of £2000 to his grand-daughter, Harriet Duckett. The will then proceeds thus:-" And whereas, on the death of the Hon. Mrs. Hutcheson, I am entitled to the sum of £500, bequeathed to me under the will of the late Lord Glenbervie, it is my will and desire that the said sum of £500 shall be divided between my sons Charles Edward Parke Gordon and John Henry Gordon." The testator then bequeathed a sum of £1000, to which he stated his representatives would be entitled, in the event of his pre-deceasing his sister, between his said sons. The testator then bequeathed his share of his fisheries on the river Dee to his son Charles Edward Parke Gordon. Then follows a bequest to testator's wife, of some trifling articles, and he appointed his said sons, and his son-in-law, the petitioner, and Alexander Jopp, his executors, and made his said sons his residuary legatees. The petitioner William Duckett, and the respondent John Henry Gordon, proved the will, saving the rights of the two other executors. Charles Edward Parke Gordon denies the accuracy of the recital in his father's will, that he had given him £2000, and he says he 1860. Rolls. DUCKETT v. GORDON. Judgment. |