Annuities, upon trust, out of the rents of the two thirds of Ballygrubane, and the dividends or income of the Long Annuities, yearly to pay unto or for his daughter Phoebe Augusta Heywood, during her life, for her own use and benefit, such sums of money, not exceeding in any one year 300l., as his trustees *and his daughter Anne Eliot might think most for her advantage. And the testator directed that the annual surplus, if any, of such rents and dividends should be paid to his daughter Anne Eliot for her separate use, free from the control of her then present or any future husband, during the joint lives of herself and Phoebe Augusta Heywood, and that her receipt alone, notwithstanding her coverture, should be a sufficient discharge to the trustees; and in case of the death of Anne Eliot, during the life of Phoebe Augusta Heywood, then such annual surplus was to be paid to such person or persons as should be the heir of the body of Anne Eliot for the time being. And after the decease of Phoebe Augusta Heywood, in case Anne Eliot and her then present husband should be then living, upon trust to pay the whole of the rents and profits of the two-thirds of Ballygrubane into the proper hands of Anne Eliot, or such person or persons as she should by writing appoint, for her sole and separate use, and free from the control of her then present husband; and her receipt alone, notwithstanding her coverture, was to be a sufficient discharge to the trustees; but Anne Eliot was not to be at liberty to assign or appoint such rents and profits by anticipation, or before they became actually due. And in case Anne Eliot should survive her then present husband, then the testator, from and after his decease, and the decease of his daughter Phoebe Augusta Heywood, appointed the said two third parts of Ballygrubane to Anne Eliot and the heirs of her body. But in case Anne Eliot should die in the lifetime of her said husband and of Phoebe Augusta Heywood, the testator thereby willed that Anne Eliot should have full power to give or appoint, after the decease of Phoebe Augusta Heywood, the whole or any part of the two third parts of Ballygrubane to all or any one or more of her children who might survive her, for such *estate and estates, upon and for such trusts,

and in such manner and form as, notwithstanding her coverture, she, by her last will and testament in writing, or any codicil thereto, executed and attested as therein mentioned, should direct or appoint; and in default of such direction or appointment, then the testator directed and appointed the same unto the heirs of the body of Anne Eliot. And the testator thereby also directed that, from and after the decease of Phoebe Augusta Heywood, the income of the Bank Long Annuities should be paid to Anne Eliot for her separate use, during the joint lives of herself and her then present husband; and in case she should survive her husband, that the capital of the Bank Long Annuities should be transferred to her for her own use; but in case she should die in her husband's lifetime, then, after her decease, the trustees were directed to transfer the capital of such Long Annuities to such person or persons and in such manner and form as Anne Eliot should, notwithstanding her coverture, by her last will and testament in writing, or any codicil, executed and attested as therein mentioned, appoint ; and in default of such appointment, unto her executors or administrators as part of her personal estate. Richard Bright and Benjamin Heywood were appointed the executors of the will.

Serjeant Heywood died in the month of September, 1828, leaving his daughters Phoebe Augusta Heywood and Anne Eliot his co-heiresses-at-law and only next of kin. Phoebe Augusta Heywood died in the month of June, 1832, unmarried and intestate, leaving Anne Eliot her heiress-at-law and only next of kin.

*

The bill was filed by the trustees of Serjeant Heywood's marriage settlement against the trustees and executors of the Serjeant's will (one of whom had also obtained letters of administration de bonis non of Mary Isabella Heywood) against Mr. and Mrs. Eliot, their infant children, and the trustees of their marriage settlement, and against the personal representative of Phoebe Augusta Heywood; and it prayed that the rights of the several parties in the property which formed the subject of the settlement of December, 1780, might be ascertained and declared.

By the decree of the VICE-CHANCELLOR, made at the hearing of the cause, it was, among other things, declared that the settlement of the 5th of January, 1815, made on the marriage of William Granville Eliot and Anne Heywood, was a valid appointment of one third of the 5521. 1s. 9d. per annum Bank Long Annuities; and that the one third of the sum of 5521. 18. 9d. per annum Bank Long Annuities, amounting to 184l. Os. 7d., per annum like Annuities, sold out in the lifetime of Samuel Heywood, and the proceeds whereof were paid to him, was unappointed; and that one third of such last mentioned third vested in Anne Eliot, one other third in Phoebe Augusta Heywood, and the other third in Mary Isabella Heywood; and that Anne Eliot became entitled, as the next of kin of Phoebe Augusta Heywood to her said one third of a third, and that the two thirds of a third, to which Anne Eliot so became entitled, were liable to be settled under the covenants contained in her marriage settlement; and that under the appointment contained in the will of Samuel Heywood, Anne Heywood became absolutely entitled for her separate use to the remaining one third of the sum of 552l. 1s. 9d. per annum Bank Long Annuities; and that she was not bound to settle the same. And it was further declared that the appointment contained in the will of Samuel Heywood, as to the two thirds of the real estate of Ballygrubane, to the trustees for the separate use of *Anne Eliot, was invalid; but that the appointment of the same two thirds by that will to Anne Eliot in tail was a valid appointment; and that under the covenants contained in her marriage settlement, she was bound to settle the same to the several uses in the settlement expressed concerning the one third of the hereditaments and premises thereby granted and released; and that Anne Eliot should. convey the same to the trustees of her marriage settlement, and settle the same accordingly; and that the trustees of Serjeant Heywood's will should pay to William Granville Eliot, as being entitled thereto under the settlement, a moiety of the rents received by them, and which became due after the decease of Samuel Heywood, and prior to the decease of Phoebe Augusta Heywood, in respect of the two undivided thirds of the said real

estate, and also the entirety of the rents of the same two undivided thirds which had accrued due, and had been received by them since the death of Phoebe Augusta Heywood.

The defendant Mrs. Eliot appealed against so much of the VICE-CHANCELLOR'S decree, as declared the appointment of two thirds of the estate of Ballygrubane to be void, and against the consequential directions.

The Solicitor-General and Mr. Lorat, in support of the appeal.

Mr. Jacob and Mr. Norton, in support of the decree.

[242]

Mr. Stevens and Mr. Gresley appeared for other parties.

[245]

The Solicitor-General, in reply.

[The arguments of counsel and the cases cited by them sufficiently appear from the following judgment.]

THE LORD CHANCELLOR [after stating the facts and documents, and the substance of the decree, said:]

The effect of this decree is to declare that the testator had no power to direct the payment of the rents to his daughter Anne for her separate use, and to treat the appointment as creating a valid estate tail, inasmuch as it directs her to convey the two thirds to the trustees of her own settlement under the covenant, although the estate tail was given only in the event of Anne surviving her husband, who is still alive, and although the covenant in her settlement was by the husband only, and was to operate only in the event of the instrument under *which she might become entitled to the property not directing otherwise. The effect of the decree is to give to the husband an estate for life in his own right, contrary to the express directions of Serjeant Heywood's will, and unless she should survive her husband, to deprive the wife of all benefit from the property, and if she should survive him, to give her only a life estate, although, in that event, the testator gave her an estate tail.

The first question to be considered is whether Serjeant Heywood was authorised by his own settlement to appoint the rents of

Dec. 16.

[247 ]

[ *248 ]

the two thirds of the estate to the separate use of his daughter Anne; because, if he was, the question whether such interest as she took under his will was, or was not, subject to the covenant in her own settlement, will not arise. Now, his power is to appoint in favour of children for such estate and estates, charged with such annual or gross sums, and in such manner and form as he should think fit. As to so much of and such interest in the estate as Serjeant Heywood should not effectually appoint, Mrs. Eliot, in the events which have happened, would, by the provisions of the settlement of 1780, be entitled in tail. It is said that what Serjeant Heywood has attempted to do, by way of appointment, in the event of Mrs. Eliot dying in the lifetime of her husband and sister, namely, to give her a power of appointing amongst her children, and, in default of her so appointing, to give the estate to the heirs of her body, is not within the power, and therefore void. But he has also appointed the rents of the estate, during the joint lives of herself and her husband, to trustees for her separate use, and the estate itself to her in tail, if she should survive her husband; and the decree declares that his appointment to her in tail is valid; but that the appointment of the rents for her separate use is invalid; and the decree directs Mrs. Eliot so to deal with this estate tail as to settle it according to the covenant in her own settlement. Now it is to be observed, that if the appointment of the rents to her separate use, and of the estate, in the event of her dying in her husband's lifetime, be invalid, Mrs. Eliot is entitled to an immediate estate tail under the settlement of 1780; but the estate tail, under the appointment in the will of Serjeant Heywood, is made to depend upon her surviving her husband, who is still alive; and, therefore, it does not appear how such an estate can be made subject to the covenant in her settlement, even supposing the object of that settlement to be to give interests to the husband, and not to protect the wife against the exercise of his marital rights.

It has not been disputed at the Bar, and the decree affirms, that the appointment of the estate tail is good; but if it be good, it must prevail according to the terms and conditions of the appointment, namely, to take effect after the termination of the