Saunders v. Vautier.
HIGH COURT OF CHANCERY
Original Printed Version (PDF)
Original Citation: (1841) Cr & Ph 240
English Reports Citation: 41 E.R. 482
June 2, 4, 5, 1841.
S. C. 4 Beav. 115; 10 L. J. Ch. (N. S.), 354. See Lister v. Bradley,
1841, 1 Hare, 14; Leeming v. Sherratt, 1842, 2 Hare, 20; Festing v. Allen,
1842, 5 Hare, 578; Curtis v. Lukin, 1842, 5 Beav. 155; Pearson v. Dolman, 1866,
L. R. 3 Eq. 321; Hilton v. Hilton, 1872, L. R. 14 Eq. 475; Weatherall v.
Thornburgh, 1878, 8 Ch. D. 269; In re Wrey, 1885, 30 Ch. D. 510; In re Bevan's
Trusts, 1887, 34 Ch. D. 718; In re Jobson, 1889, 44 Ch. D. 160; Wharton v.
Masterman [1895], A. C. 186.
[240] Saunders v. Vautier. June 2, 4, 5, 1841.
A testator, by his will, bequeathed
to his executors and trustees all the East India stock which should be standing
in his name at his death, upon trust to accumulate the dividends until D. W. V.
should attain twenty-five, and then to transfer the principal, together with
such accumulations, to D. W. V., his executors, adminiÁstrators, or assigns,
absolutely. The will contained also a residuary bequest. The testator had 2000
East India stock standing in his name at his death. Held, that D. W. V. took an
immediate vested interest in that legacy, although he was a minor at the testator's
death ; and, accordingly, the Court ordered the stock, with its accumulations,
to be transferred to him on his attaining twenty-one.
Semlile, the existence of an order
for the maintenance of an infant out of the income of a fund does not prevent
the Court, in a subsequent proceeding in which the title to the principal comes
directly in question, from making an order negativing the infant's title to the
fund.
Richard Wright, by his will, gave
and bequeathed to his executors and -trustees) thereinafter named, all the East
India stock which should be standing in his name at the time of his death, upon
trust to accumulate the interest and dividends which should accrue due thereon
until Daniel Wright Vautier, the eldest son of his (the testator's) nephew,
Daniel Vautier, should attain his age of twenty-five years, and then to pay or
transfer the principal of such East India stock, together with such accumulated
interest and dividends, unto the said Daniel Wright Vautier, his executors,
administrators, or assigns absolutely ; and the testator gave, devised, and
bequeathed all his real estates, and all the residue of his personal estate
whatsoÁever and wheresoever, to his executors and trustees thereinafter named,
their heirs, executors, administrators, and assigns, upon trust to sell and
convert into money all his said real and personal estates immediately after his
decease, and to invest the produce arising therefrom in their names in the 3
per cent, consolidated Bank annuities, and to stand possessed thereof upon
trust for the said Daniel Vautier and Susannah, his wife, and the survivor of
them, during their respective lives, and from and after the decease of the
survivor of them, [241] upon trust for their children, equally, when and as
they should, severally, being sons, attain the age of twenty-one years, or
being daughters, attain that age or be married, with the consent of their
trustees and guardians, and in the meantime to apply the interest and dividends
of the respective shares of such children for their benefit, education, or
maintenance ; and in case any child should die before attaining a vested
interest in the fund, then the testator directed that the share of the child so
dying should go and survive to
CE. & PK, MI. SAUNDERS V. VAUTIER 483
the others : *nd the testator nominated and appointed his friends John
Maunders and Thomaa Saunders his executors and trustees.
The testator died on the 21st of
March 18.12, at which time a sum of ,2000 East India stock was standing in his
name. The executors, having proved the will, left that sum standing in the
testator's name, but invested the dividends on it, as they accrued, in the
purchase of like stock in their own names.
Shortly after the testator's death,
this suit was instituted by the executors against Susannah Vanitier and her
children (Daniel Vautier having died in the testator's lifeÁtime), for the
puipose of having the trusts of the will carried into execution under the
direction of the Court; and a decree was accordingly made, directing the usual
.accounts. A petition was afterwards presented on behalf of Daniel Wright
Vautier, who was then a minor, praying the appointment of a guardian, and an
allowance for liis past and future maintenance : and, the usual reference
having been directed, the Master, by his report, found, amongst other things,
that the Petitioner's fortune conÁsisted of the sum of 2277, 6s. 7d. East India
stock, being the amount of the above-mentioned sum oi 2000, with the
accumulations thereon since the testator's death, arid [242] of one-seventh
share of the testator's residuary estate, which would be divisible on the death
of the Petitioner's mother. He also found that the Petitioner had been educated
and maintained, since the death of the testator, by his mother, and that shff
had pioperly expended iti such maintenance the sum of 338, 2s., which he found
ought t* be paid to her by sale of a sufficient part of the 2277, 6s. 7d. East
India stock ; and he found that the sum of 100 per annum would be a proper sum
to lie allowed for the maintenance and education of the Petitioner for the time
to come ˜during his minority, and that it should be paid out of the dividends
of the East India stock.
By an order of the Master of the
Rolls (Sir C. C. Pepys), dated the 25th of July 1835, that report was confirmed
and carried into effect, and, in pursuance of that order, the trustees
continued, during the minority of Daniel Wright Vautier, to pay the sum ˜of 100
out of the dividends of the stock for his maintenance.
Daniel Wright Vautier attained
twenty-one in the month of March 1841, and, lieing then about to be married, he
presented a petition to the Master of the Rolls, praying that the trustees
might be ordered to transfer to him the East India stock, or that it might be
referred to the Master to inquire whether it would be fit and proper that any
and what part of the stock" should be sold, and the produce thereof paid
to the Petitioner, regard being had to his intended marriage, and for the
purpose of ˜establishing him in business.
' Upon that petition coming on to be
heard before the Master of the Rolls, hi.s Lordship's attention was called
[243] to the order of the 25th of July 1835, whereupon he declined to deal with
the question raised upon the petition, so long as that order remained ; and it
was, in consequence, arranged that the petition should stand over, for the
purpose of enabling the other residuary legatees to present an appeal petition
from that order to the Lord Chancellor.
An appeal of petition was
accordingly presented, praying, simply, that the order ˜of the 25th o July 1835
might be discharged or varied; and that petition now came ˜on to be heard.
Mr. Richards and Mr. Dean, for the
residuary legatees, contended that the order for maintenance out of this fund
was erroneous, inasmuch as the legatee took no interest in it antil he attained
the age of twenty-five years : for, there being no gift but in the direction
for payment on the legatee's attaining that age, it followed, -according to the
established rule, that the vesting of the legacy was postponed until that
period, unless, from particular circumstances, a contrary intention could bo ˜collected.
In this case, however, there were none of the indicia from which such an
intention had usually been inferred. There was no direction in the will to give
the legatee the interim enjoyment of the produce of the fund, nor even so much
as a provision for maintenance out of it; and it had been held, that even the
existence of such a provision afforded no presumption of an intention to vest
the capital; Leake v. Ilobinson (2 Mer. 363, see p. 387). The accumulations
were not, as in Hanson v. Graham (6 Ves. 239), directed to be made for the
benefit of the legatee; nor was there any gift of them, [244] any more than of
the principal, except in the direction for payment. The gift was. in fact,
precisely equivalent to a bequest of a .sum of
484 SAUNBERS v. VAL'TIER CE. 6 PH. 245.
money, with interest, on the legatees attaining a particular age, which
had been held not to give a vested interest in the meantime ; Knight v. Knight
(2 S. & S. 490), The only circumstance in the present case which indicated
an intention to vest the legacy, was the direction to pay to the legatee,
" his executors, administrators, or assigns : " but these words could
not be relied on, as they were merely the technical form of expressing an
absolute interest.
They alao cited Batsfard v. Kelibell
(3 Ves. 363), Vawdry v. Geddes (1 Russ. & Mylne, 203), Judd v. Judd (3 Sim.
5125), and Newman v. Newman (10 Sim. 51), and they observed that the course
adopted by the Master of the Rolls shewed that his Lordship considered that the
order for maintenance was erroneous, or otherwise he would not have hesitated
to order a transfer of the fund at once to the legatee.
the lord chancellor. I cannot
recognise the principle that the existence of an erroneous order as to
maintenance prevents the Court from making an order inconsistent with it, as to
the principal fund. There was nothing to prevent the Master of the Rolls from
disposing of the petition which was brought before him, notwithstanding that
order. But, with respect to this petition, I do not see to what purpose I can
deal with it. If the party were still a minor, and the payment of the
maintenance under the order were going on, there might be a reason for
apply-[245]-ing to stop it for the future ; but, by discharging that order, I
should be making the trustees liable for the payments they have made for
maintenance. The petition preÁsented to the Master of the Rolls is not now
before me, or, with the consent of the parties, I would dispose of it.
It was then arranged that a similar
petition should be presented, without delay, to his Lordship, and that the
argument should, in the meantime, proceed as if such petition were actually
before the Court.
Mr. Wigram and Mr. Wood, for Daniel
Wright Vautier, admitted the general principle, that where there was no gift
but in the direction for payment at a certain time, the legacy was, in the
meantime, contingent, unless a contrary intention appeared : but they insisted
that the circumstance from which the Court was in the habit of inferring such
intention, was not the direction that the legatee should have the interim
enjoyment of the fund, but the necessity of separating the principal sum from
the bulk of the estate, in order to carry into effect the provisions of the
bequest. such necessity occurred, it was immaterial whether the occasion of it
was an immediate gift of the produce of the funds to the legatee, or a gift of
a fund to a trustee to improve for his benefit. In either case, it was the
separation of the fund that destroyed the contingent nature of the bequest, and
raised a presumption that an immediate and absolute gift was intended, unless
that presumption were rebutted by a gift over in the event of the legatee dying
under the prescribed age; Vawdry v. (teddes (1 Russ. & Mylne, 203). That
principle was recognised in Boitit/ v. Dawt/s (1 Keen, 362), and it would be
[246] found to be the principle of all those cases in which a gift of this kind
had been held to confer a vested interest ; Hanson v. Graham (fi Ves. 239),
Bramxtrmn v. Jf'Ukinsm (7 Yes. 421), Loce. v. L'Rtfrcmge (5 Bro. P. C. 59),
Lane v. Gmtdi/e (9 Ves. 225). The reasoning in Katxfonl v. Keliliell was not
very intelligible; but, at all events, the ground of that decision, whether
right or wrong, waa peculiar to itself, viz., that the dividends of stock and
the stock itself were distinct subject-matters of bequest; and if that were so,
the gift of the dividends, until the party attained the age at which he was to
receive the stock, did not involve an immediate separation of the stock from
the bulk of the estate. They also cited ftwaston's case. (3 Rep. 19), Manfidil
v. Duya-rd (1 Eq. Gas. Abr. 195, pi. 4), Doe v. IlTiitby (1 Burr. 228), and
relied on the limitation to "executors, administrators, or assigns,"
observing that the legatee could have no "assigns " in the sense
which that word was evidently intended to bear, unless the legacy vested before
the time appointed for payment arrived.
Mr. Anderdon appeared for the
trustees.
Mr. Richards, in reply, said that in
all the cases which had been cited there was. either an immediate gift of the
interim produce of the fund to the legatee, or a trust to apply it for his
benefit; and that the mere separation of the fund from the rest of the estate
had never been treated as alone sufficient to give the legatee a present vested
interest. Still less could it be so considered in this case, in which the trustees,
of the legacy were also executors and trustees of the will generally.
CR.&PH.WZ,
SAUNDEBS V. VACJTIER 485
[2471 At the coiicluaion of the argument, the lord chancellor said that,
from what had been stated, he must assume that the Master of the Rolls'
impression was that the order for maintenance was erroneous.
Mr. Wigram. said he understood that
the Master of the Rolls, considering hiniself bound in point of form by that
order, had expressed no opinion upon the merits.
June 4. thb lord chancellor. I
should not have thought this a case of any difficulty ; but the form in which
it came before me, namely, a rehearing of an order made by me at the Bolls,
though not, as I at first understood, at the suggestion of the Master of the
Bolls, has called upon me lo give it my most careful attention. I have no
recollection of the case, and have no means of knowing how far my judgment was
exercised upon the construction of the will. I cannot, however, assume that the
order was mads without my having considered the state of the property as stated
in the Master% report; as that would have been contrary to the course which I
have always thought it my duty to adopt in such cases.
It is argued that the testator's
great-nephew, Daniel Wright Vautier, does not take a vested interest in the
East India stock before his age of twenty-five, because there is no gift but in
the direction to transfer the stock to him at that age. But is that so'? There
is an immediate gift of the East India stock; it is to be separated from the
estate and vested in trustees; and the [248] question is whether the
great-nephew is not the emtui qut trust of that stock. It is immaterial that
these trustees are also executors; they hold the East India stock as trustees,
and that trust is, to accumulate the income till the great^nephew attains
twenty-five, and then to transfer and pay the stock and accumulated interest to
him, his executors, administrators, or assigns. There is no gift over; and the
East India stock either belongs to the great-nephew, or will fall into the
residue in the event of his dying under twenty-five. I .am clearly of opinion
that he is entitled to it. If the gift were within the rule, there would he
circumstances to take it out of its operation. There is not only the gift of the
intermediate interest, indicative, as Sir J. Leach observes in l''awdri/ v.
GeMes (1 russ. & Mylne, 203. See p. 208), of an intention to make an
immediate gift, because, for the purpose of the interest, there must be an
immediate separation of the legacy from the bulk of the estate; but a positive
direction to separate the legacy from the estate, and to hold it upon trust for
the legatee when he shall attain twenty-five. The decision in J'awdry v. GeMes
and other cases, in which there were gifts wer, cannot affect the present
question. Booth v. Booth (4 Ves. 399) is certainly a strong case, and goes far
beyond the present, and so does Lore, v. L'Exfnmye (5 Bro. P. C. 59); and it is
a decision of the House of Lords. That case has many pointa of resemblance to
the present; and although Lord Rosslyn seems, in Monkhouw v. Holme (1 Bra. C.
C. 298), to question the principle of that decision, Sir W. Grant, in Hanxon v.
Graham (6 Ves, 239. See p. 248), justifies it upon grounds, most of which apply
to this case, particularly that the fund was given to trustees till the legatee
should attain a certain age, and that it should then be transferred to him;
from which and other circumstance* he thought it was [249] to be inferred, that
the fund was intended wholly for the benefit of the legatee, although the
testator intended that the enjoyÁment of it should be postponed till his age of
twenty-four. Such, I think, was clearly the intention of the gift in this case.
It was observed that the transfer is
to be made to the great-nephew, his executors, administrators, or assigns. It
is true that the addition of those words does not prevent the lapse of a legacy
by the death of the legatee in the lifetime of the testator, but they are not
to be overlooked, when the question is, whether the legacy became vested before
the age specified ; because if it were necessary that the legatee should live
till that age to be entitled to the legacy, then there would be no question
about his representatives at that time.
I am therefore of opinion that the
order of 1835 was right, and that the petition of rehearing must be dismissed,
and with costs; which I should not have ordered if the Master of fche Rolls had
recommended the parties to adopt that proceeding upon a view of the merits of
the case, but which I am now informed was not the case. The order for a
transfer of the funds, upon the regular evidence of the legatee having attained
twenty-one, will follow this decision upon the construction of the will.
Jit/B.4 5. On the following day, a petition having, in the
meantime, been presented
486 HERRING V. OLOBERY CR. to PH. MO.
pro forma, to the Lord Chancellor, in pursuance of the arrangement above
mentioned, the matter was again spoken to, when
Mr. Anderdon asked for the costs of
the trustees, both of that petition and of the similar petition which had [250]
been presented to the Master of the Rolls, subÁmitting that although that
petition was not before his Lordship, yet that the Petitioner might be put upon
the terms of paying the costs of it, as the condition of his obtaining the
order which he asked.
The Lord Chancellor said that he had
no jurisdiction on the petition presented at the Rolls; but suggested to the
Petitioner that he should consent to those costs being included in the present
order, as he would otherwise have to pay the expense of another application to
the Master of the Rolls for the purpose of recovering them ; which suggestion
was acceded to.
Mr. Richards then made a similar
application for the costs of the residuary legatees, which was opposed by Mr.
"Wigrani, on the ground that the residuary legatees stood in the situation
of parties who had opposed a claim and failed: but the lord chancellor said
that, as the fund had not been carried over to the separate account of the
Petitioner, and therefore could not have been obtained withÁout serving the
other parties in the cause, the residuary legatees were entitled to their
costs; and, accordingly, his Lordship directed that the costs of all parties to
that petition, and also, by consent, of the petition at Rolls, should be paid
out of the fund.