alein v belchier July SC wh t l c that ed power of jointuring execute in  favour of a wife but with a agreement that the wife shall only receive a part  as a annuity for her own benefit and that the residue shall be apply to the  payment of the husband debt hold a fraud upon the power and the execution set  aside except so far as relate to the annuity the bill contain a submission to  pay it and only seek relief against the other object of the appointment S c  Sugd on power App Amb ms the reverend Thomas alein be seize of a real estate  in Essex of the yearly value of pound subject to a mortgage for a term of five  hundred year to sir Charles palmer for pound and have a nephew Edmund alein  and two brother the plaintiff Giles alein and William who be a defendant by  his will bear date the that of may devise the same to Eyre and Bragg in trust  by sale or mortgage to raise money and pay his debt and legacy and to permit  his wife to receive the rend and profit of the residue for her life and after  her death in trust to convey to Eden his nephew Edmund for life with remainder  to his first and other son in tail male with proper limitation to support  contingent remainder with a power to his nephew to make a jointure on any  woman he shall then after marry for her life in bar of dower with power to  provide for young child and to make lease with remainder to the testator  brother Giles for life remainder to his first and other son in tail male  remainder to his brother William for life remainder to his first and other son  in tail male remainder to his own right heir he give his brother the plaintiff  a Eden er p annuity of pound ayear for his life to be pay out of his estate to  be increase to pound ayear in case his nephew shall survive his the testator  wife a bill be file soon after the testator death by the widow and on the that  of February a decree make to establish the will and for payment of debt and  legacy by mortgage or sale in the usual way the master report there be due for  debt and legacy pound S d which he approve to be raise by mortgage the widow  die in April and Edmund become entitle to the possession of the estate the  defendant William belchier have advance money to pay off the encumbrance a  mortgage bear date the that and that of June be make of the estate to he in  fee and the term for year be assign to John belchier in trust for W belchier  Edmund be very extravagant and become indebt to William belchier in the sum of  pound on the that June Edmund marry the defendant jane who be a low woman  without fortune and no provision for her be either make or agree to be make  but soon after the marriage by article of agreement bear date the saint of  August and make between Edmund alein and his wife of the one part and William  belchier Eden of the other recite the will of Thomas alein give Edmund a power  of jointuring and that he and jane be late marry and that he be indebt to  William belchier in the sum of pound beside the mortgage Edmund alein in  satisfaction and discharge of the say sum of pound and in consideration of the  several annuity and money thereinafter agree to be pay covenant within six  month to procure a effectual conveyance and settlement to be make by the  trustee in Thomas Aleyns will and immediate after such settlement shall be  make to appoint the whole estate to his wife for her life in case she shall  survive he for her jointure and that he and his wife as soon as they shall  become respective seize of the legal estate of freehold will by fine and  conveyance convey and assure all the say premise by the say will devise and  intend to be settle unto and to the use of William belchier his heir and  assign during the life of Edmund alein and jane his wife and the long liver of  they and in consideration thereof William belchier covenant that in case the  say settlement shall be perfect whereby the estate shall become well vest in  he and his heir for the life of Edmund and jane his wife and the long liver of  they to pay the several annuity after mention namely to jane alein during the  joint life of her and Edmund her husband pound ayear clear of all deduction  for her separate use to Edmund alein for his life in case he shall survive  jane his wife pound clear of all deduction and to jane in case she shall  survive Edmund her husband for her life pound ayear clear of all deduction and  to pay to John mile son of jane by a former husband pound at the age of  twentyone year and also to pay jane pound yearly towards his maintenance and  education till the pound shall become Payable the estate be convey by lease  and release of that Eden and that of August to the use of Thomas Aleyns will  pursuant to the decree and by deed date that of August recite the conveyance  and power to jointure Edmund alein in consideration of the marriage and in  order to make a provision for jane his wife appoint the whole estate to jane  his wife for a jointure subject to the payment of the annuity give by the will  of Thomas alein and of the mortgage of pound S d and interest on the that of  August Edmund alein and jane his wife execute a deed by which Edmund covenant  with George townsend that be and his wife will levy a fine of the premise to  townsend and his heir for and during the life of Edmund and his wife and the  long liver of they in trust for William belchier and his heir which be levy  accord William belchier take possession of the estate and receive the rend and  profit and pay the plaintiff during Edmund life two sum of pound and pound S  in part of the annuity he be entitle to under Thomas Aleyns will Edmund die in  June on the that of November the plaintiff file the present bill to redeem the  estate on payment of pound S d the mortgage money borrow under the decree and  to be let into the possession of the estate for a account of the rend and  profit from the death of Edmund submit to pay jane pound ayear for her life  and to have the deed and write of the estate deliver up jane alein and William  belchier admit in their several answer the fact as Eden er p before state jane  alein say that the settlement be intend to make a reasonable provision for her  and to save Edmund from ruin and that if Edmund have not be in debt at Eden  the time of their marriage he will have settle the whole estate on her for her  jointure William belchier say that the consideration of the settlement and  conveyance be true and good fide advance part before the execution of the  settlement and the remainder at or about the time of the execution of the  settlement and conveyance to townsend and they both admit that Edmund be at  the time of the settlement in distress circumstance and in want of money Mr  Perrot and Mr ambler for the plaintiff this be a improper execution of the  power which be to bar dower by give a jointure but even suppose it well  execute the fraud will vitiate it the appointment and conveyance be a deceit  upon the testator and a fraud upon the remainderman the power give to the  nephew who be only tenant for life be to make a fair jointure to encourage he  to marry not to pay his debt the remainderman be only to be keep out of the  estate in case a fair and honest jointure be make it must not be colourable  and for other purpose this be a artful contrivance of belchier and the  defendant jane a low mean woman of no fortune there be no settlement nor  agreement for one at the time of the marriage not till belchier put it into  Edmund head with a view to secure his own debt by take a absolute interest in  the estate for two life instead of a mortgage for Edmund life only it be at  best a unreasonable bargain the article of the saint August discover the whole  scheme upon the face of they it appear it be not the intention to jointure but  to pay debt the only jointure aver be pound ayear Edmund be strip of every  thing during the joint life of himself and his wife only pound ayear to be pay  during their joint life and that to the separate use of the wife suppose a  power to make a jointure of so much for every thousand pound Eden fortune it  have be repeat hold that if the husband or other advance a sum of money  colorable to authorize the husband to settle large a court of equity will set  aside all above the proportion of the real value of the fortune vide lane v  page Amb Lord tyrconnel v duke of Ancaster ib so if a father have a power to  appoint among his child bargain with one for a share equity will set it aside  though it may be honest in Edmund to pay his debt it must be do with his own  money this be a method of do it with other person money contrary to the  intention of the testator Even admit the estate have be fair and good fide  appoint as a jointure and the wife have afterward part with her jointure or  part of it to pay her husband debt it will have be good to bind the  remainderman yet in this case the whole be one transaction a collusion between  the husband and wife and belchier the case of lane v page determine by Lord  Hardwicke be precise in point the attorneygeneral and solicitorgeneral for the  defendant belchier Mr clark for the jointress the first question be as to the  extent of the power give by the will the objection that the power be only to  bar dower and consequent can only comprehend jointure make before marriage be  too extensive as it will comprehend every jointure though make good fide the  devise be to a nephew have no estate of his own for life without impeachment  of waste he have no estate to which dower can attach which show that the word  be put in by the scrivener current branch as to the execution the power be  substantial execute the husband and wife agree to sell their interest to  belchier if a appointment have be make of the Eden whole estate and the wife  have afterward join with the husband and sell her interest it will have be  good if only a day have intervene this be the same thing suppose the wife have  make a stand after the power be execute the court will not have compel her to  levy a fine it be in her power to do it or not in the case put of a father  appoint to a child make himself a partaker the appointment will only be avoid  as against other child not against a remainderman the Lord keeper the question  be whether Edmund alein have proper execute the power as a join ture and have  proper convey to the defendant belchier or whether the transaction be void in  toto or in part I be incline to think the power be not well execute in point  of law it ought to have be before marriage the power be give under restriction  it must be a jointure in bar of dower which can only be before marriage dower  be not barrable by a jointure after marriage but I build my opinion upon the  next question the whole transaction be on agreement between the husband Eden  er p and wife No point be batter establish than that a person have a power  must execute it good fide for the end design otherwise it be corrupt and void  the power here be intend for a jointure not to pay the husband debt the motive  that induce Edmund to execute it be not a provision for his wife this case be  not distinguishable from the case allude to nor from lane v page if a father  have a power to appoint among child and agree with one of they for a sum of  money to appoint to he such appointment will be void it be admit the execution  will be void but it be say to be only so among the child in that case the  money be to go to the child no other person have any interest in it here the  Eden remainderman have a immediate right to the estate after the death of  Edmund if there be no appointment it be say to differ from the case of parent  and child and that if the husband have fair execute the power the wife may  have immediate afterward join in a fine to pay his debt the reason be plain  she will then have have a first interest and the husband will have have no  control over it but it do not from thence follow that they may make a  agreement to divide the money between they it can be suppose he will have  settle the whole on her without some such view she be of no family and have no  fortune it will have keep the child if they have any entire out of the estate  till her death it be like the case put of parent and child and I think lane v  page be in point and ought to govern my decision in the present case declare  the appointment good as to the pound only for the benefit of jane the  plaintiff to redeem on payment of principal and interest of the mortgage and  cost so far as relate to the mortgage account of rend and profit from the  death of Edmund and belchier to pay the rest of the cost Reg lib a fol note as  to relief in equity against fraudulent execution of power with Sugd on power  et seq Macqueen v Farquhar Ves palmer v Wheeler ba be Daubeny v Cockburn Meriv  Davis v Uphill Swa in the latter case one point direct by the court to be  particular speak to be whether a fraudulent appointment be void in toto or in  part only and lane v page and alein v belchier be rely upon to show that it  will be only void in part sir W grant however hold that no part of a  fraudulent agreement can be support except where a consideration have be give  in consequence of which the party can not be Eden restore to their original  situation that in lane v page the subsequent marriage form such a  consideration on the part of the wife and that in alein v belchier though the  appointment be subsequent to the marriage yet the bill contain a submission to  pay the annuity and only seek relief against the other object of the  appointment