was expressed to be made between the plaintiff of the one part and the defendant John Thompson and John William Thompson, his son, of the other part, and the plaintiff thereby assigned unto the defendant John Thompson and J. W. Thompson all his interest in the residuary estate of the testator John Thompson, upon trust to invest the same and stand possessed thereof in trust for such person or persons, for such estate or estates, and generally in such manner as the plaintiff should, with the consent of the said trustees, by any deed or deeds appoint (the granting of such consent to be in the absolute discretion of the said trustees), and subject and until any such appointment in trust to pay the income to the plaintiff during his life, and after his decease upon trust for his children and issue as therein mentioned, and in default of such issue in trust for the defendant Elizabeth Dutton, the plaintiff's stepmother, absolutely if then living, and if she should be dead, then in trust for the next of kin of the plaintiff according to the Statutes of Distribution. This indenture was not executed by J. W. Thompson, nor did he accept the trusts. The plaintiff attained the age of twenty-five years on the 25th Jan. 1882, and on the 30th March commenced the present action in the Chancery Court of the Duchy of Lancaster against John Thompson and his father and stepmother, claiming to have the settlement set aside and cancelled on the ground that he had been induced to sign it by undue influence; that he did not understand the effect of it; and that he had no independent legal advice. By his statement of defence the defendant John Thompson alleged that the plaintiff was of improvident habits, and being in receipt of weekly wages only, and not being in the opinion of the defendant likely to be successful in any business or profession, the defendant was desirous, in furtherance of the expressed wishes of the plaintiff's father and stepmother, that the plaintiff should make a settlement of the property devolving upon him under the will of the testator, John Thompson; that he, the defendant John Thompson had no other object in view than the benefit of the plaintiff. He denied that any undue influence had been used, or that the plaintiff did not understand the effect of the deed. The case was heard by the Vice-Chancellor of the Duchy of Lancaster on the 17th July 1882. [Sept. 29, 1883. [CT. OF APP. be set aside, and the defendant John Thompson Kekewich, Q.C. and Clare for the appellant.Under the circumstances this was a reasonable settlement, and for the benefit cf the settlor. If he understood the provisions of it when he executed it, it cannot be set aside : Phillips v. Mullings, L. Rep. 7 Ch. App. 244. Turner v. Hancock, 46 L. T. Rep. N. S. 750; 20 Ch The defendant is therefore entitled to appeal on Rigby, Q.C. and Pankhurst, for the plaintiff, were not called on. JESSEL, M.R.-This appeal involves two points: first, whether the deed which is impeached can stand, and whether consequently the trustee can succeed on that ground; and, secondly, whether, if the deed is set aside, the trustee can appeal against the order of the court that he should pay the costs. As to the first point, I think that the deed cannot stand on the ground alleged in the statement of claim, namely, that the plaintiff did not understand it. I emphatically disagree with voluntary settlements, namely, that there were the ground on which some judges have set aside provisions in them which were not proper to be inserted in such settlement. It is not the province of a court of justice to decide on what terms or conditions a man of competent understanding thoroughly understands what he is about, it is not may choose to dispose of his property. If he the duty of a court of justice to set aside a settlement which he chooses to execute on the ground that it contains clauses which are not proper. No doubt, if the settlement were shown to contain provisions so absurd and improvident that no reasonable person would have consented to them, or if provisions were omitted that no reasonable person would have allowed to be omitted, that is an argument that he did not understand the settlement, but in no other way would it be a reason for setting it aside. In this case I cannot avoid seeing that the defendant acted throughout for what he considered to be for the benefit of the plaintiff, and, so far as I am concerned, I should not have ordered him to pay the costs of the action. But the question we have before us is not whether the defendant's motives were good or bad, but whether the plaintiff understood the deed. The evidence convinces me that everyone thought the plaintiff The Vice-Chancellor ordered the settlement to lunatic, but they thought he had not that full was very weak minded. I do not mean to say that they thought he was sufficiently so to make him a From the plaintiff's evidence it appeared that he had heard nothing about the settlement until it was tendered to him in 1879; that he was not aware of the value or particulars of the property coming to him under the will; that when he signed the deed in 1881 he did not understand the effect of it on his position with respect to the property; that he believed that under the provisions of the will he had no power to draw the capital; and that he was not aware of his rights under the will until after he had signed the settlement. When the plaintiff signed the settlement he had no independent legal advice. The defendant Thompson alleged that when the settlement was tendered to the plaintiff in 1879 it was read over and explained to him, and again in July 1881, when he executed it. The father and stepmother appeared in the court below, and disclaimed all interest under the deed. enjoyment of his faculties which average persons have. That is quite plain to me from the evidence. He was a man of full age, he had been employed as a merchant's clerk; but you cannot read the evidence without seeing that in the whole transaction they treated him as a baby, and not as a man of average intellect. It is clear that, having that opinion, the defendant ought to have taken unusual precautions to guard the settlement from any suspicions. Now, when we look at the evidence on the point which was given by the plaintiff in the witness-box, although he admitted that he understood the settlement to some extent, it is clear from his answers that there was much that he did not understand, and in particular he did not know the amount of the property to be settled. In my opinion there was a special obligation on the part of the defendant to see that the plaintiff understood the settlement, which obligation he has not discharged. People who prepare settlements for their nephews must show clearly that their nephews understood them when they executed them. In the case of this settlement I am clearly of opinion that the plaintiff did not understand half of it. Therefore the judg ment of the Vice-Chancellor as to setting aside the settlement is right. With respect to the costs, I should not have made this good-natured uncle pay the costs, but the Vice-Chancellor had discretion, and though the defendant. has received hard measure I cannot see how he can have any appeal from the Vice-Chancellor's discretion. He has appealed from the whole of the judgment, and he cannot, according to the practice of the court, obtain a reversal of the order as to costs, unless he succeeds in varying the judgment in a material part. It is said that the defendant can appeal as to the costs on the ground that he is a trustee. But he is only a trustee if the deed is established; he is not a trustee if the deed is set aside. There is no contract in existence under which he can claim his costs as of right. I regret it, but I can come to no other conclusion than that the appeal must be altogether dismissed. a COTTON, L.J.-This is an appeal from a judgment of the Vice-Chancellor of the Duchy of Lancaster, ordering the deed to be set aside and the defendant to pay the plaintiff's costs of the action. It was admitted that the object of the defendant in appealing against the whole judgment is to get the order reversed as to the payment of costs. He has a right to do this; but he further contends that, even if he should fail in reversing the order to set aside the settlement, we could still entertain the question whether or not he should have been ordered to pay the costs. The appellant is trustee of this settlement. No doubt a trustee is entitled to costs of an action which is brought for the administration of the trusts. But this claim is adverse to the settlement, and the plaintiff does not claim under the settlement, but against it. Therefore this rule has no application. I must say for myself that I see no ground for imputing unworthy motives to the defendant in getting this settlement executed, or in procuring the insertion of any particular provisions. But if he is in the wrong, and the settlement is set aside, we cannot properly interfere with the order of the judge as to costs. It is a matter within the discretion of the Vice-Chancellor. Then we come to the question whether the judgment of the ViceChancellor, setting aside the settlement, can be [CHAN. DIV. disturbed. In my opinion it cannot. Many cases where settlements have been impeached have turned upon the question whether they contained proper clauses, having regard to the position of the settlor. Where the contest is between the settlor and persons claiming adversely to him, different considerations apply, and it may be right to consider that question. But where the claim, as here, is against the trustees of the settlement, and not against any other persons, we ought not, in my opinion, to go into the question whether the provisions inserted were proper, but only whether the settlor really understood the settlement which he executed. This is the question in this case. I do not mean only whether he read it over; but did he know how his position under his grandfather's will would be affected by it? If he did not, I cannot doubt that it is the duty of this court to relieve him from it. On considering the whole of the evidence, I cannot come to any other conclusion than that the plaintiff did not understand the settlement, and therefore the appeal must fail. LINDLEY, L.J.-I am of the same opinion. I have attended closely to the evidence, and my conclusion is that the plaintiff did not understand the settlement. It was no doubt read over to him, but it was not fully explained to him. I cannot help coming to the conclusion that he did not realise the effect of the settlement on the interest which he took under the will. I do not think he knew the amount settled, nor the extent to which he was put under the power of the trustee, nor that the property would eventually go to his stepmother. In my opinion it is impossible that this deed can stand. As to the costs, I believe that the defendant thought he was doing the best for his nephew; but still it was by him and the plaintiff's stepmother that the whole thing was brought about. At all events, the costs were in the judge's discretion, and we cannot interfere with his order. Solicitors for the appellant, Gregory, Rowcliffes, and Co., agents for J. W. Thompson, Liverpool. Solicitors for the plaintiff, Chester and Co., agents for Woodall and Marriott, Manchester. HIGH COURT OF JUSTICE. CHANCERY DIVISION. THOMAS V. WILLIAMS AND OTHERS. (a) Settted Land Act 1882 (45 & 46 Vict. c. 38), ɛɛ. 3, 31, and 53-Power of tenant for life to sell estate-Cumulative powers-Power of sale in will-Trustee appointed during pendency of suit -Injunction. An action was brought by a remainderman to obtain an injunction to restrain the tenant for life and the trustees of a settled estate containing coal mines from selling it in such a manner as would be prejudicial to the interests of the remaindermen. The plaintiffs alleged that a sale at the present time would be disadvantageous, as the development of the minerals had only recently commenced. The will by which the estate was (a) Reported by A. COYSGARNE SIM, Esq., Barrister-at-Law. CHAN. DIV.] THOMAS V. WILLIAMS AND OTHERS. settled gave the trustees a power to sell at the request of the tenant for life; and the Settled Land Act 1882 had come into operation since the commencement of the suit. A new trustee, who consented to an immediate sale, had been appointed by the plaintiffs during the pendency of the suit without asking the consent of the court. Held, that by the will the trustees had a power of sale, and they could only be prevented from exercising it if the sale were improvident or a breach of trust, and that by the Settled Land Act the tenant for life had cumulative powers to sell, so that both under the will and the Act the tenant for life had a clear right to sell; that the court would not speculate as to a probable increase in the value of property for the benefit of remaindermen to the disadvantage of the tenant for life; also, that it was not here necessary for the defendants to have obtained the consent of the court to their appointment of a new trustee pendente lite. Plaintiff's action dismissed with costs. By his will, dated 28th Nov. 1836, Henry Llewellyn devised the freehold mansion-house, farm, and lands known as the Hendrescythen Estate in Glamorganshire, in strict settlement to the defendant E. T. Llewellyn, for life, with remainder in the events now existing to the plaintiff Miss Thomas for life, with remainder to the plaintiff Mrs. Sant for life, with remainder to her first son George Sant in tail, with remainders over. The testator appointed E. Williams and the defendant H. A. Williams trustees to preserve contingent remainders, and gave to the trustees, or the survivor of them, a power of sale to be exercised "at the request and by the direction of the person or persons for the time being entitled to the actual freehold of the estate," with the usual provisions for re-investment of the proceeds of the sale in land and for interim investment in the securities authorised by the will. The testator gave a power of appointing new trustees to the same person. E. Williams, one of the trustees of the will, had died since the death of the testator in 1836. About the year 1879 the defendant Llewellyn, who was over eighty years of age, proposed to sell the estate. Some correspondence took place on the subject of the proposed sale between the solicitor of the defendants and the solicitors of the remaindermen, in which Mr. Llewellyn's solicitor stated that his client having expended a large sum of money in repairs and improvements during his tenancy would have no objection to comply with the wishes of the remaindermen and forego the sale, provided they would reimburse him his outlay to the amount of 1000l., and he also stated that it was intended to invest the proceeds of the sale in consols. The terms of the defendant Llewellyn were not accepted, but this action was brought by the three plaintiffs, Miss Thomas and Mr. and Mrs. G. Sant, against Llewellyn and the surviving trustee H. A. Williams, and they claimed the appointment of a new trustee, a declaration that the contemplated sale would be an improper exercise of the power, and an injunction to restrain the defendant Williams from selling the estate at the request and by the direction of the defendant Llewellyn, and the defendant Llewellyn from requesting or directing a sale. [CHAN. DIV. After the action was brought the Settled Land Act 1882 came into operation, and a few days before the action was heard, on the 15th March 1883, the defendant Llewellyn under the power in the will appointed Mr. J. S. Gibbon as new trustee of the will without notice to the plaintiffs, and with. out referring the appointment to the court. It was agreed at the trial that Mr. Gibbon should be added as a defendant. It appeared that there were valuable seams of coal and minerals under the estate, which would probably be developed in the future. There was also a railway in course of construction by the Taff Vale Company near one side of the estate, and a Bill for the construction of a railway (known as the Barry Dock and Railway Scheme), which as projected would run through the estate, had passed its second reading in Parliament. The plaintiffs also called witnesses who stated that, having regard to these facts, in their opinion the estate would sell to much better advantage a few years hence. The house on the estate was in the occupation of a tenant. The defendant Llewellyn stated in evidence that he should be benefited by a sale and investment in consols. In cross-examination admitted that he had no other reinvestment in view than consols, and in answer to a question by Bacon, V.C., whether if instead of inheriting the estate he had bought it with his own money he would think it a good thing to sell it, replied, "I should not sell it as times go now, if I was the owner of it; but I think it is a different question where I am only tenant for life. I would not sell it if it was my own. I am attached to the property, and it has been inherited from my ancestors." The trustees consented to the proposed sale. he The sections of the Settled Land Act 1882 material to this case are as follows: Sect. 3. A tenant for life may sell the settled land, or any part thereof, or any easement, right, or privilege of any kind, over or in relation to the same. Sect. 31. A tenant for life may contract to make any sale, exchange, partition, mortgage, or charge; and (sub-sect. 3) the court may on the application of the tenant for life, or of any person interested in any contract, give directions respecting the enforcing, carrying into effect, varying, or rescinding thereof. Sect. 53. A tenant for life-shall in exercising any power under this Act have regard to the interests of all parties entitled under the settlement, and shall in relation to the exercise thereof by him be deemed to be in the position, and to have the duties and liabilities of a trustee for those parties. Hemming, Q.C. and Christopher James for the plaintiffs.-If it rested on the power under the will, the sale would be improper, as it is admitted that it is not made for the purpose of reinvestment in land. The powers of a tenant for life under the Settled Land Act 1882 are wider, and under the Act he can sell and revest in consols; but the enabling power given by sect. 3 is controlled by sect. 53, which shows that he must act as an impartial trustee for all parties. The proposed sale is a sale for the exclusive benefit of the tenant for life, and entirely neglects the interests of the remaindermen, since the value of this land is mainly prospective, and though a purchaser takes the prospective value into account, yet to sell under these circumstances has the effect of limiting the class of purchasers to a small speculative class. In the letter written by his solicitor the tenant for life asks for 1000l. as being the price for which he offers to abandon his intention. CHAN. DIV.] THOMAS v. WILLIAMS AND OTHERS. [BACON, V.C. I do not think it amounted to that. What the letter meant was, "I choose to sell the estate; but if you wish me not to exercise my power of sale I will not do so on certain conditions. You pay me 1000l., and I ask for that sum because I have spent that amount on the estate, and you will have the benefit of it and I shall lose it."] If he were not tenant for life, but only trustee, he admits he would not sell; and by sect. 53 he is bound to act as if he were trustee for all parties. The proposed sale, therefore, either under the terms of the will, or under the statutory power, ought to be restrained. The appointment of the new trustee without submitting the matter to the court was improper. [BACON, V.C. referred to Re Gadd; Eastwood v. Clarke, 48 L. T. Rep. N. S. 395; 23 Ch. Div. 134.] That case only decides that the power continues after action or judgment, not that it can be exercised independently of the court. Marten, Q.C. and Mulligan for the defendant Llewellyn. The proposed sale is proper and authorised as well by the terms of the will as by the Settled Land Act. That Act would be a dead letter if, on the suggestion of so-called expert evidence as to the probable future value of the property, the court were to restrain a bonâ fide sale by the tenant for life. The tenant for life is entitled to consult his own interests, and sect. 53 bas no application in a case where there is not the slightest suggestion of a want of good faith. Sect. 51, which prohibits a limitation against the exercise of his power by the tenant for life, and also a recent case, show the extent of the power of the tenant for life under this Act: Wheelwright v. Walker, 48 L. T. Rep. N. S. 70. The powers given by the Act are cumulative, as is shown by sects. 56 and 57. As a general principle the court will not interfere with the exercise of discretionary powers, even after action brought: Thomas v. Dering, 1 Keen, 729, 744; Gisborne v. Gisborne, 36 L. T. Rep. N. S. 564; L. Tempest v. Lord Camoys, 48 L. T. Rep. N. S. 13; Admitting that the value of the estate is largely prospective, this, according to the ordinary rule of the court, would be a reason in favour of selling, in order that the tenant for life might have his share of the reversionary value: Howev. The Earl of Dartmouth, 7 Ves. 137; Hemming, Q.C. in reply. In the first place, the power under the will is improperly exercised, unless for the purpose of re-investment in land: Mortlock v. Buller, 10 Ves. 292, 308. There Lord Eldon, speaking of powers such as this, says: "The object of the sale must be to invest the money in the purchase of another estate to be settled to the same uses; and they (the trustees) are not to be satisfied with probability upon that, but it ought to be with reference to an object at that time supposed practicable; or at least this court would expect some strong purpose of family prudence, justifying the conversion if it is likely to continue money." Secondly, the power of sale under the Act is improper, having regard to sect. 53; but any case it cannot be exercised till there are in [CHAN. DIV. two trustees properly appointed, that being the number originally appointed by the will, as is provided by sect. 45, sub-sects. 1 and 2. There must therefore be a reference to ascertain whether Mr. Gibson is a proper person. The tenant for life ought not to have exercised the power without coming to the court, the rule being that the court, after action brought, will control, though it will not take away, a discretionary power: The Attorney-General v. Clark, 1 Beav. 467; Re Gadd; Eastwood v. Clarke (ubi sup.). The plaintiffs are, therefore, in any case entitled to judgment on this part of the claim. BACON, V.C.-It must be confessed that this is a very singular case. I do not think there ever was one like it; at least no case that I know of has ever been reported which is at all similar. Under the will of the testator there are various limitations given, amongst others, one for life to the present defendant, Mr. Llewellyn. It is an exceedingly well-drawn instrument, as far as I can judge from the print, and it provides for the trustees dealing with the estate at all times, and gives to the trustees a power of sale if they should be requested to sell by the tenant for life; and in this case the tenant for life does request them to do so, and if it stood only on that ground, and if there was no subsequent Act of Parliament, I could not bring myself to doubt for a single moment that the tenant for life, whose right it is to have the enjoyment of what the testator has left to him in as beneficial a manner as possible, if in his honest judgment he thinks that the property ought to be sold, has a right to call upon the trustees to sell it, and the trustees have no right whatever to refuse his request. I am not considering the case of an improvident sale or of some gross breach of trust. Here, where there is no suggestion of any breach of trust being contemplated or capable of being committed, I am asked to say upon the evidence before me of what are called experts, that if the sale was postponed for a time a larger price could be obtained for the property than could be obtained at present. What right have I to rely on the opinions of experts on such a subject as that? They have told me on what they have formed their opinion. My opinion is as easily formed as theirs, and perhaps not worth any more. They say that there is a railway going to be made, and that will increase the value of the property; that is to say, that there is a Bill in Parliament, which whether it will pass or not no man knows, and if it does pass no man knows whether the railway will be made in the direction proposed or not-and yet I am to speculate on that suggestion, that the passing of the Bill will increase the value of the property. Then I am also asked to speculate on the value of the mines. The matter with regard to the mines stands in this way. The one thing given by the testator is an estate containing minerals which would become valuable if they were worked. These are not available except to those persons who have large capital; and unless there are persons with 100,000l. ready to be produced and willing to spend it upon the working of these minerals, there can be no increased value to the estate in that respect. That, however, does not diminish the value of the estate at all, because if the estate is put up at all, it will be put up as one entire thing, which the testator has given to the present defendant to enjoy for his life. These gentlemen, who are called experts, have no particular experience that I know of which should induce me to listen to what they say. They say, however, that if the estate were put up for sale with the minerals, no doubt a purchaser would take into consideration the prospective value of the minerals, and the price to be given for the estate would be regulated by their notion of the increased value by reason of the existence of the minerals. That is in the nature of things, and it must be so always where there is a tenant for life exercising his authority, and where there are trustees exercising their powers. This estate will be sold as an estate which contains minerals. That will at once invite and attract the special attention of men who have 100,000l. and are willing to work the mines. Have I any reason to suppose that that would diminish the value of the estate ? Or have I any reason to suppose, if the sale of the estate was postponed for a few years, that the value of it would be thereby increased ? There is not a fragment of evidence, nor anything at all except the guesses and speculations of those experts, as they are called. Not relying on their experience and knowledge in coming to an opinion which is necessarily vague and uncertain, and which they or I could form as easily and be just as much mistaken in-if it stood there, upon the will, I should say that there was no pretence whatever for this claim, because the claim in terms asks that the tenant for life may be restrained from enjoying that which the testator has given to him, namely, the right to have the property sold. It does not, however, rest there only, because the Legislature has taken what may be called a very wise view of this subject. That must be taken to be so now at all events, and that must be the policy of the law-that tenants for life are not to hampered or interfered with in the enjoyment of their estates, but on the contrary, they are not only to be further enabled, but encouraged to deal with them. They have powers given to them which they did not possess before the passing of the Act in all cases, though I think in some few cases they had the same powers before the statute as they have now. Yet the statute gives cumulative powers to those possessed before by tenants for life. It does more than that however. It prohibits the trustees or anybody else interfering with, or trying to fetter or contract the power which, in the eye of the law, a tenant for life ought to have of selling the estate of which he is only tenant for life. The clauses of that Act have been referred to in the course of the argument. They are perfectly distinct, and they do enact that, where a tenant for life sells and where there are no trustees, he shall be considered as a trustee ; and where there are trustees their consent not being requisite it shall not be asked for in any respect; and they give the most ample and abundant powers to the tenant for life to say that the property shall be sold. It is his right to derive any benefit he can from his tenancy for life, and if he is satisffed that he will derive a larger benefit from the sale of the estate than from its enjoyment in its present condition, he has a right to have it sold. That is what the testator has given him, and that is inseparable from his character of tenant for life. If the statute were [CHAN. DIV. out of the way, in my opinion, the tenant for lifehas full power to do that which he proposes to do, but when we come to look at the statute we find that the matter is still more clear, and that the right of the tenant for life becomes more strong, and his power more extensive, if a more extensive power could be required. A claim, therefore, which asks in the interests of the persons entitled in remainder that an injunction may be granted to restrain the trustees from selling at the request and by the direction of Mr. Edward Turberville Llewellyn, and also that Mr. Edward Turberville Llewellyn may be restrained from requesting or directing a sale of the Hendrescythen estate, cannot possibly succeed. That is the whole case, and upon such a case as that a number of cases dealing with trustees have been referred to-amongst other the case of Mortlock v. Buller-but they have not the smallest application to the case before me, which is a question of right between the plaintiffs and the defendant, and the question is, whether the defendant is entitled under the will and under the statute to proceed to that sale which he intends to make, and as to which there is no imputation and no suggestion that the trustee is favourable to the tenant for life. On the contrary, by his answer he says that he proposes to sell because he thinks it is the right thing to do in the due discharge of his duty. The tenant for life says: "I desire to sell because I shall improve my income by the sale of the estate now. They are both of them perfectly legitimate things to do, both consistent with the devise in the will, and both of them not one step beyond the rights of the several parties. Then a complaint has been made that a trustee has been appointed since this suit was instituted. I do not hesitate to confess that I had a notion once-and a case has been referred to upon this-that an appointment of another trustee ought not to take place except at the instance of the party who had obtained the decretal order, but the Court of Appeal said I was totally wrong about that, and that the decree having been made made no sort of difference in the power of the surviving trustee, who by the settlement or will or whatever it was, was entitled upon a vacancy happening to fill it up, and therefore that he had a right to nominate the trustee and that he possessed that right according to the regular procedure of the court, and had always had the right. In the view which they took upon that subject I cannot doubt for a moment that the Lords Justices were right, and that the power to appoint a new trustee was vested in the person in whom by the settlement it was vested, and that he had a right to appoint the trustee. In this case there is no suggestion that he has not properly exercised that power, and therefore that contention, which has been resorted to for the want of something better, has now no influence upon me in this case. I take the claim brought forward by the plaintiffs to be an unreasonable and improper one. It seeks to interfere with the legal right of the trustees, and with the legal and beneficial right of the tenant for life. It asks for that which the court ought not to grant, and which it has no power to grant, and which, if it granted it, it would do a wrong and commit an injustice to the tenant for life. In my opinion the claim must be dismissed with costs. |