[CHANCERY DIVISION]

PAWSON v. BROWN.

[1878 P. 307.]

Marriage Settlement - Marriage with Deceased Wife's Sister - Illegal Consideration - Failure of Trusts.

J. P., previously to going through the ceremony of marriage with his deceased wife's sister, executed a settlement reciting the intended marriage, by which certain property was assigned to trustees in trust for the settlor until the solemnization of the marriage, and after the solemnization thereof, and after the decease of J. P., to pay the interest to the intended wife for life, and then for the benefit of his two children by his former wife and such children as he should have by his intended marriage; but if there should be no such child or children, then for J. P.,his executors, administrators, and assigns:-

Held, that, as no valid marriage could take place between J. P. and his deceased wire's sister, the trust in favour of himself until the solemnization of such marriage continued, and the subsequent trusts never having arisen, the property remained in J. P., and formed part of his general estate.

THIS was a special case, brought for the purpose of having the rights of the parties ascertained.

J. Pawson, before going through the ceremony of marriage with Sarah Ellerton, his deceased wife's sister, executed a settlement dated the 1st of January, 1841, by which it was recited that a marriage was intended shortly to be solemnized between J. Pawson and Sarah Ellerton, and in consideration of the said intended marriage J. Pawson assigned a policy upon his life for £2000 to trustees to hold the same upon trust for J. Pawson, his executors, administrators, and assigns, until the solemnization of the said then intended marriage, and after the solemnization thereof and after the decease of J. Pawsonto receive the sums of money recoverable on the policy and to invest the same, and to permit Sarah Ellerton to receive the income of such investment, during her life or widowhood, and after her decease or second marriage, upon trust to pay, divide, and assign or transfer the funds thereby settled, and all accumulations of the interest thereof during minority, unto, between, and amongst, or to trustees for the Plaintiff John Ellerton Pawson and Margaret Ellerton Pawson (afterwards the Defendant Margaret Ellerton

Brown), the same being the children of J. Pawson by his former marriage, and the child or children of the said intended marriage, or any one or more of the said children (including the said J. E. Pawson and Margaret E. Pawson), in exclusion of the other or others of them, or to their respective issue as the said J. Pawsonshould by deed or will appoint as therein mentioned; but if neither the said J. E. Pawson and Margaret E. Pawson, nor any child or children of the said intended marriage, should live to attain a vested interest in the said trust moneys, in trust for the said J. Pawson, his executors, administrators, and assigns.

Shortly after the execution of this settlement a ceremony of marriage was gone through between John Pawson and Sarah Ellerton.

John Pawson had, subsequently to the performance of the ceremony of marriage, eight children by Sarah Ellerton. John Pawsonby his will, dated the 17th of July, 1877, devised and bequeathed all his real and personal estate of or to which he should at the time of his death be seised, possessed, or entitled, or over which he should then have a general power of appointment, to the use of the Plaintiffs upon trust as therein mentioned in favour of his son, the Plaintiff John Ellerton Pawson, and the testator's five sons by the said Sarah Ellerton. And he appointed the Plaintiffs executors of his will. Sarah Ellerton died in the testator's lifetime. The testator died on the 30th of August, 1877, without having exercised, or purported to exercise, the power of appointment reserved to him by the settlement (unless he could be considered to have exercised the same by virtue of his will). The sums received under the policy, amounting to £2407 8s. 1d., were paid into Court. The Plaintiffs claimed to be entitled thereto as executors of the testator's will, but the Defendants asserted their claim to share therein.

The questions for the opinion of the Court were:-

1. Whether the above-stated indenture of settlement contained a good and valid settlement of the property therein comprised, so far as regarded the interests therein purporting to be thereby given to the Plaintiff John Ellerton Pawson, and the Defendant Margaret Ellerton Brown, respectively.

2. Whether the same indenture contained a good and valid

settlement of the same property, so far as regarded the interests therein purporting to be given to the child or children of the marriage therein declared to be then intended, and whether they were entitled to take as being such children of the same marriage.

3. Whether in case there should have been any valid settlement as in either case aforesaid, the power of appointment contained in the said indenture was duly exercised by the will of John Pawson.

4. Or whether in default of any such valid settlement or appointment the Plaintiffs, as such executors, were entitled to retain the said sum of £2407 8s. 1d., as part of the general estate of the testator, to be applied by them in the due course of administration.

Hood, for the Plaintiffs, the executors of J. Pawson:-

This case is entirely governed by Chapman v. Bradley (1). There the settlement was made upon the marriage of a man with the niece of his deceased wife, and the property was assigned to trustees for himself until the solemnization of the marriage, and then upon trusts for the benefit of himself, his intended wife, and the children of his former wife, and of his intended marriage. The Lords Justices held, upon appeal from the Master of the Rolls(2), that as no legal marriage had ever been solemnized, the first trust in favour of the settlor until the marriage remained in force. In this case likewise, the first trust for the settlor, his executors, administrators, and assigns, until the solemnization of a marriage which could never take place, remained in force, and the fund belonged to the settlor absolutely, and would be distributed as part of his personal estate under the trusts of his will.

Romer, for the Defendant Sarah Ellerton Brown, the daughter of J. Pawson by his first wife:-

The question here is whether the settlement made by J. Pawsonis not valid to the extent of those objects who were capable of taking. If the settlement had been made in favour only of the children by the first marriage, it would have been a valid voluntary settlement, and only void against creditors. The bill in Chapman v. Bradley was filed by the creditors of the settlor, who died insolvent.

(1) 4 D. J. & S. 71.

(2) 33 Beav. 61.

In that case the Master of the Rolls held that that deed was void on the ground of the uncertainty as to the valid and invalid consideration upon which it was based. The Lords Justices no doubt decided upon different grounds, but the case was mixed up with the validity of the marriage which had taken place in a foreign country where such marriages were valid, and the question raised in Brook v. Brook (1) was discussed at some length. But the case of Ayerst v. Jenkins (2) is in our favour. There it was held that a Court of Equity would not at the instance of a settlor, or his legal personal representative, adversely set aside a settlement by which the settlor confers on a stranger the absolute beneficial interest in property legally vested in trustees. That settlement was made for an illegal consideration, that is - the cohabitation of the settlor with his deceased wife's sister - both parties well knowing that the marriage about to be solemnized between them would be void. This settlement is perfectly good so far as the objects are capable of taking, and is valid as a voluntary settlement in favour of the legitimate children of the settlor by his first wife, though invalid in respect of the illegitimate children by the then proposed illegal cohabitation: Howarth v. Mills (3).

Everitt, for children of Sarah Ellerton, said he felt there would be no use in arguing the case in their favour.

Locock Webb, Q.C., and Maclaren, for others of the same children.

MALINS, V.C.:-

It appears that Mr. Pawson married and had by his wife two children. He then formed a second marriage, as he considered, with another lady, who was his deceased wife's sister. The second marriage was absolutely void. That was decided in Brook v. Brook, although the parties in that case went abroad and were married in a country where such marriages are legal. Therefore it was just the same as if he had lived with the second lady without going through

(1) 3 Sm. & Giff. 481; 9 H. L. C. 193.

(2) Law Rep. 16 Eq. 275.

(3) Law Rep. 2 Eq. 389.

any marriage ceremony. This settlor, having assigned this property to trustees upon trust for himself, his executors, administrators, and assigns, until the solemnization of the said then intended marriage, proceeds to direct that after the solemnization thereof the property shall be held in trust for the benefit of his intended wife and his two children by his first wife, and such children as he should have by the lady with whom he was about to solemnize a second marriage. No doubt he considered, as many other persons have done, that the marriage was a proper, and would be a valid, marriage. However he went through the ceremony, but the event contemplated upon which his own interest was to cease never could and never did take place, and the subsequent trust consequently never arose at all. That would have been my opinion if there had been no authority in support of my view, but the case of Chapman v. Bradley (1) is directly in point, and had it not been for the case of Ayerst v. Jenkins (2) I should have had no hesitation whatever. That was a suit to set aside a settlement instituted by the personal representatives of the settlor, whereas this is a special case for the opinion of the Court, and in that case the illegal consideration for the settlement was not apparent upon the settlement. Then the property was vested in trustees for the absolute and unconditional benefit of the lady, without any interest being reserved for the settlement until the marriage, and without any trust in favour of children. The only motive expressed upon the deed was that the settlor was desirous of making a provision for the lady, and the instructions given by the settlor to his solicitor to prepare the deed were that it should be a "deed of gift," although the form of the instrument prepared in pursuance of the instructions was varied. There it was a completed transfer of specific chattels, and the suit was not instituted till ten years after the death of the settlor, and after the lady had been married for some years to another man. The lapse of time was a material ground for upholding the settlement.

Then as to Mr. Romer's argument, that although the trusts in favour of the illegitimate children, the offspring of the said connection, cannot take effect, yet that the trusts for the legitimate children by the first marriage may take effect, that would violate

(1) 4 D. J. & S. 71.

(2) Law Rep. 16 Eq. 275.

the intention of the settlor, for it is quite certain that he meant to benefit all his children or none. I decide the short point, therefore, that this is a trust which was to arise only upon an event which could never occur, and the consequence is that the property would belong to the settlor absolutely, and his executors will be entitled to it as part of his general estate.

The answer to the 1st, 2nd, and 3rd questions will therefore be in the negative, and to the 4th in the affirmative.

Solicitors: J. R. Tindale; Jones & Grove.