Cholmondeley v Meyrick April see Evans v Scott h l c term to commence after  the father death to raise portion for young child in such share and proportion  as he shall appoint for want of appointment equal to son at twentyone to  daughter at twentyone or marriage to be pay immediate after the decease of the  father with survivorship in case of the death of a child before its portion  shall become due and Payable the father die without make any appointment hold  the portion vest at twentyone or marriage during his life S c Cit bro c c c n  Amb ms Cox ms hill ms perryn ms by indenture of lease and release bear date  the that and that of July execute previous to the marriage of the plaintiff  late father Charles Cholmondeley with Essex Pitt certain premise be convey to  trustee and their heir to the use of the say Charles Cholmondeley for life  remainder to trustee to preserve c remainder as to part to the wife for her  jointure remainder of the whole to trustee for year on trust Eden determine  remainder to trustee for year for raise portion for young child remainder to  the first and other son of the marriage in tail male with remainder over and  it be thereby declare that the say term of year be upon trust that if there  shall be a son of the say Charles Cholmondeley on the body of Essex his then  intend wife beget and also one or more daughter or daughter young son or son  that then the say trustee shall out of the rend issue and profit or by  mortgage or sale levy and raise such money for the portion of such daughter or  daughter Eden er p young son or son in such share proportion and manner and  with such maintenance in the mean time as therein declare that be to say if  there shall be but one son and only one daughter then pound for the portion of  such only daughter and if there shall be two such son and no daughter then  pound for the portion of such young son and if there shall be a old or only  son and only two other child then the sum of pound for the portion of such  other two child and other provision be make in case of a great number of child  the say several sum for the portion or portion of such daughter or daughter  and young son or soil to be raise and pay to he or they at such time or time  and in case there shall happen to be more than one child beside a old son then  in such share and proportion and manner as the say Charles Cholmondeley by any  deed or write to be by he duly execute in the presence of two or more credible  witness or by will shall direct limit or appoint and for want of such  appointment to be equal divide among they if more than one such daughter or  young son share and share alike and to be raise and pay in manner follow that  be to say to such young son or son at Eden twentyone and to the daughter and  daughter at her or their respective age of twentyone or day of marriage which  shall respective happen after the decease of the say Charles Cholmondeley or  in case any such daughter or daughter shall attain twentyone or be marry in  the lifetime of the say Charles Cholmondeley then to be pay immediate after  the decease of the say Charles Cholmondeley unless the same shall have be  raise and pay in his lifetime which it I may be by his direction and it be  thereby declare and provide that in case any such daughter or daughter young  son or young son shall die before his her or their portion shall become due  and Payable or be soon pay as aforesaid then the portion or portion of such of  they so die to go to and be pay among the survivor or survivor of they when  the original portion of such survive daughter or daughter shall become due and  Payable as aforesaid provide that no survive daughter or young son shall  thereby have any great portion than by the trust aforesaid be for he or her  provide in case such daughter or daughter or young son or son so die have not  be bear provide that if all die before any of their portion shall become  Payable then the term to cease the issue of t he marriage be on old son the  plaintiff and five young child three of who die young in the lifetime of the  father and mother the two other be daughter the elder of who jane marry the  defendant Meyrick and die in the lifetime of her father leave two child the  other daughter mary marry the defendant Wannup and be a defendant in the  present cause Charles Cholmondeley the father die in intestate and without  have make any appointment the plaintiff conceive that mrs Wannup be injure  Eden by the nonappointment of his father by article of agreement bear date the  that of September recite his father marriage settlement and that mrs Meyrick  have die before her portion become Payable and that mrs Wannup thereby become  entitle to pound and that mrs Meyricks child be entitle to nothing and that he  be unwilling to take advantage of his father nonappointment agree to secure to  mrs Wannup the sum of pound to make up the sum of pound and also the sum of  pound to mrs Meyricks two child the bill pray that it may be determine what  sum shall be raise under the year term and whether Meyrick be entitle to any  share of the pound or whether mrs Wannup be entitle to the whole and if pound  be to be raise that the article may be declare void the only point argue be  between the codefendants whether mrs Meyrick have die in her father lifetime  be entitle to a moiety of the sum of pound provide for two child the  attorneygeneral and Mr Strickland for the defendant Meyrick Mr Meyrick claim  to be entitle to pound as the moiety of pound raisable under the term of three  hundred year it have vest in his wife on her marriage the present question  arise upon a common clause in a settlement for a portion to be raise out of  land which can vest and be transmissible till it be Payable and raisable  therefore the settlement fix the time of twentyone for son and twentyone or  marriage for daughter that be the time when they want it the settlement  evident provide that they may vest during the lifetime of the father and in  order to prevent the inconvenience of raise they during his lifetime the raise  be express postpone Eden er p till after his death the inclination of the  court be always in favour of vest Eden portion Pitlields case p W and  therefore Lord Hardwicke in order to effectuate the general intent of the  settlement go against the express word emperor v Rolfe Ves his lordship think  that it can never be the intention that a child live till twentyone marry and  have child shall by die in the parent life lose its portion the word in the  present case be due or Payable which be to the same effect with those which  occur in the settlement in emperor v Rolfe and which be insert for the benefit  of the estate not in favour of a survive child the word there be due and  Payable it may perhaps be object that the portion be suspend and prevent from  be vest by the father power of appointment but suppose both daughter have  marry and die in the lifetime of their father leave family shall nothing be  raise and yet in such case there will have be no object of appointment Conway  v Walpole barn Ch req the solicitorgeneral and Mr Perrot for the defendant the  Wannups the question whether Mr Meyrick be to take any part of the pound must  depend on the word of the settlement the power of appointment differ the  present case very material from emperor v Rolfe as the number of child may  vary nothing certain can vest in any of they till appointment and as the power  of appointment may be exercise by will the child who be to take can be  determine till the father death the intention of the settlement be that no  child shall be benefit unless they survive so as to be the object of  appointment and though this provision may be very unusual and unreasonable yet  if it be so express Eden the court must carry it into effect the party may  have a inclination that the portion shall not be raise to the prejudice of the  estate for the advantage of a decease child there be therefore no vest  interest under this settlement in any child that do not survive the father  mason v Limberry Com Rep Maddison v Andrews Ves sen Davy v Hooper vern  Wingrave v Palgrave p W tournay v tournay Prec can the Lord keeper this bill  be bring by Mr Cholmondeley who have enter into article to pay mrs Wannup his  sister the defendant pound to make up her fortune pound upon a supposition  that mrs Wannup will be entitle to pound tender the settlement of her father  as the single young child entitle to a portion under the three hundred year  term suppose she be the single young child she will be entitle to pound only  and therefore the question on this bill be whether Mr Cholmondeley have be  impose on or mistake so as to authorize I to set aside these article it be  allege that Mr Cholmondeley conceive that if his father have make a  appointment mrs Wannup will be entitle to now it seem very clear that Mr  Cholmondeley the father can have no power to appoint in the case which Mr  Cholmondeley the son suppose and therefore these article be voluntary and  enter into upon a mistake and misapprehension ought without further question  to be set aside but the ground of Mr Cholmondeley relief seem to have be  desert and the question propose for I to Eden determine be between the  codefendants Mr Meyrick and the Wannups and the question be whether upon the  trust of the three hundred year term Mr Meyricks wife be entitle to a moiety  of pound provide for two child or whether the whole pound only be to be raise  for mrs Wannup mrs Meyrick die in the lifetime of her father and before her  portion by the trust of the term can be raise and that question seem to I to  be extreme plain and easy solvible by common sense and on the principle of  obvious justice this term of three hundred year be create by the settlement  for raise portion for young child accord to the number that shall be bear of  the marriage if one pound if two pound if four pound if five pound and the sum  be certain accord to the number of child that shall be bear and entitle to  their portion but if more than one in such share and proportion as Mr  Cholmondeley the father shall appoint and in default of appointment equal to  be divide Payable to the son at twentyone or marriage but if they attain  twentyone or marry in the father lifetime then the money to be raise and pay  immediate after the father death when the term take effect in possession but  it be provide that if any die before their portion become due and Payable or  before it be soon pay by the power the father reserve for that purpose the  portion of such child so die shall go Eden er p and be pay among the survivor  equal to be divide when the original portion shall become Payable provide that  no survive daughter or young son shall thereby have any great portion than by  the trust aforesaid be for he or her provide in case such daughter or young  son so die have not be bear now upon this declaration it can be dispute that  if there be two child bear that live till their Eden portion become due they  must have pound raise out of the estate whether Mr Cholmondeley be Willing or  not he can only divide that pound between they accord to his discretion it be  as certain that if five be bear and only two live till their portion become  due they can have but pound though Mr Cholmondeley have be Willing to have  give they more why because the burden on the old son be settle by the marriage  contract and also the provision for the young child and nothing be leave to  his discretion but to judge of and reward the merit and behaviour of these  young child there be no power reserve to he to deprive any young child of his  whole fortune here a sum certain be provide accord to the number of the child  bear unalterable as to the quantum but alterable and defeasible quoad the  respective proportion and by the clause of survivorship if five have be bear  and four have die before their portion become Payable the pound will have vest  and go from the child die to the survivor have it not be for the restrictive  clause that they shall take no more by survivorship than if the child die have  never be bear the death of the father be the time when the legal term commence  and will take effect in possession and then the portion be to be raise but  there be a vest at twentyone or marriage with a power of appointment hang over  it but we know that a power insert in a settlement and never execute be as if  there have be no power at all and be a insignificant letter Menzey v walker  for et vide Sugd on power and case cite there in this case the term vest at  the death of Mr Cholmondeley the father and the remainderman Eden can never  have it reassigned till the trust of it be perform under the direction of this  court these portion be make Payable to the daughter at twentyone or marriage  to the son at twentyone the time when they may natural be suppose to be most  in want of they this court have former go so far as that where the time have  arrive it have lend its aid to the trustee to raise the portion by a mortgage  of the term in reversion where there be no present ready fruit this be in fact  the true spirit of the settlement but it be soon find that this be extreme  inconvenient by mangle estate and make child disobedient and therefore unless  it be express direct by the deed this court say now the portion shall vest but  not be Payable by anticipation till the fund be ready for the payment and  discharge of it emperor v Rolfe Ves sen it have be insist on the part of the  defendant Wannup that the power of appointment suspend any vest during the  father lifetime and consequent that as mrs Meyrick die in her father lifetime  nothing vest in her that can be transmit to her representative vide rook v  rook post where there be a similar power of appointment if this doctrine shall  prevail it will be attend with very extensive consequence for these power be  insert in settlement with a view and design that they never shall be execute  for every man wish that his child may deserve equal and these power presuppose  a vest here the father have do nothing but he design all his young child shall  be leave to such provision as be carve out for they by the settlement and as  he have never execute the power of appointment therein reserve to he it now  stand as if Eden there have be no such power and upon the principle of this  court the doctrine lie down in emperor v Rolfe must be follow as to the case  of Davy v Hooper and Wingrave v Palgrave which be cite for the Wannups they be  case of settlement of a sum of money for daughter under a particular  description and as they do not fall within that description their  representative can not be entitle but the present case be that of a portion  vest with a power of appointment hang over it which have never be execute and  therefore I be of opinion that the defendant Meyrick be entitle as the  personal representative of his decease wife to pound one moiety of pound  provide by this settlement for the portion of the child with interest from the  death of Charles Cholmondeley the father it be now a establish rule that if  portion be direct to be pay at twentyone or marriage follow by a clause that  if they attain these period in the lifetime of the father the portion shall  not be pay till after his death yet that clause will not prevent the vest in  the life of the father these clause as Lord Rosslyn observe Ves be frame to  obviate the difficult by arise from the determination that charge the  reversion by permit interest to be carry on from the age of twentyone though  there be a estate for life as soon as these clause come forward Lord Hardwicke  in emperor v Rolfe put a just construction upon they if the settlement indeed  clear and unequivocal make the right of the child to a provision depend upon  its survive both or either of its parent a court of equity have no authority  to control that disposition per m r Ves be vide also Wingrave v Palgrave p W  Hotchkin v Humphrey mad Rep but the court look upon it as a hard thing to  impute to a father Eden that he shall mean a child have attain twentyone or  come to marriageable year and form a family yet because that child die in his  life the descendant shall have nothing and feel that not to be a probable  intention in the parent have think themselves at liberty to manage the  construction of the word as they will not in the case of a stranger upon a  matter of contract without any mixture of parental feel per Lord Eldon Ves and  his lordship add in another part of his judgement in the same case the natural  intention must direct I and the case authorize I to struggle with language  emperor v Rolfe Ves and the present case have be follow in rook v rook post  Vol two Reynous v Jeffreys ib and bro p c Edward Toml Randall v Metcalfe bro c  c Edward Toml woodcock v d of Dorset bro p c Willis v Willis Ves hope v ld  clifden Ves Schenck v Legh Ves powis v Burdett ib king v Hake ib Bayard v  smith Ves Howgrave v Cartier Ves be perfect v Lord Curzon mad Reg lib a fol  nom Cholmondeley v Egerton Eden er p