1840.

M'CAN

บ.

O'FERRALL, et e contra.

himself, and the payment of the money was for his benefit. It is not even pretended that at the time M'Can was ignorant of the marriage. But in fact he was guilty of this fraudulent concealment throughout, with regard to his own marriage as well as O'Ferrall's; for there are several affidavits made by him after his marriage with Margaret Forbes, in all of which he describes his own wife by the name of her former husband. In this way he got possession of money to which he had no title. M'Can was not the trustee of the children's fortune; he was the personal representative of the father and mother, and the receiver of the Court of Chancery; but it was the Court itself that was bound to distribute the fund which he received, and for which he ought to have accounted to the Court. The Lord Chancellor of Ireland was wrong, therefore, in not directing some inquiry in order to ascertain what was the fortune of Catherine. The marriage articles themselves were a fraud on her: and it is the duty of a Court of Equity, in the case of a female ward above 21, to see that when she executes articles on an intended marriage, she knows what are her rights, and has a clear intention as to the disposition of her property. Here, though the property is that of the wife, the settlement is so framed that she might be left by the death of her husband, the day after the marriage, totally destitute. The Court will remedy this, and give her a life interest in the property. The Court will interfere here, because this is the case, not of a trustee, but of a receiver of the Court, the receiver of the money of an infant. The gift to Margaret was not merely for herself but for her children. In Wood v. Wood (j), (j) 1 Myl. & Cr. 401.

a testator devised certain estates by name, together with his farming stock and furniture, to his beloved wife, to sell, to discharge all his creditors; and he constituted his wife and T. W. his executors, whom he appointed to sell and dispose of all his estates and chattels in such manner as they should jointly agree upon, or not to sell if it seemed most advisable to keep them, or in any way that they should think proper, so that every creditor had his money; and if sold, all overplus to his wife, to support herself and family. The words there seemed amply sufficiently to give the largest rights and powers to the wife, but it was held, upon demurrer, that the testator's children. had such an interest in the devised estates as enabled them to sustain a bill against the widow and her coexecutor, impeaching a sale on the ground of fraud, and praying an account of the rents and profits. That case proceeded upon an express adoption of Cooper v. Thornton (k), where it was held, that a payment made like the present was good, so as to protect the executor, on the sole ground that the person to whom the money was paid was in effect created, by the words of the will, the trustee to execute its purposes. Otherwise the payment would have been bad. And in like manner, in Robinson v. Tickell (l), where there was a bequest to A. for her and her children's use, a transfer was decreed to A. None but the strongest words are capable, in such cases, of defeating the interests of the children, for the Court will not leave them without provision. In Hamley v. Gilbert (m), there was a direction for payment of residue to E. G. H., to be applied by her at her dis(m) 1 Jac. 354.

(k) 3 Bro. Ch. Cas. 96 & 186. ()8 Ves. 142.

E 4

1840.

M CAN

v.

O'FERRALL,

et e contra.

1840.

M'CAN

V.

O'FERRALL, et e contra.

cretion for or towards the education of her son, and that she should not be liable to account to him or any other person for the disposal or application of it. E. G. H. was held to be entitled to the residue, which was considerable, but subject to the application of so much of it as the Court might think fit, to the education of the son during his minority. And all the decisions are in accordance with this principle. Thus, in Barton v. Cooke (n), there was a legacy for the board and education of an infant "until he shall be fit to be put out apprentice ;" and then a further sum with him as an apprentice fee: the infant having attained 19, and not having been put out apprentice, was held entitled to the legacies. And in Taylor v. Bacon (o), the testator gave 1,500l. to trustees, and directed them to pay the interest to his son's wife, for the benefit of his son, herself, and children, during his son's life; and after his son's decease, the 1,500l. were to remain in trust, for the benefit of the wife and children, for her life, and at her death to be divided equally among the children if they should have attained 21, but if any of them were minors, their shares were to be held in trust for them till they were 21, and the interest was in the meantime to be applied for their maintenance; but should the wife marry again, the children were then to receive their shares as they attained 21. It was held that the wife was a trustee of the interest for herself, her husband, and children, and that the shares of the children in the principal did not vest in them till they attained 21. Even in that case, where the interest of the children was held not to vest till 21, the Court protected them against any fraudulent appli(0) 8 Sim. 100.

(2) 5 Ves. 461.

cation of the fund. Here it is clear that there was a fraudulent application of the fund by M'Can, the person who undertook the duty of administering the estate. There was a connivance between him and at least one other person; and under these circumstances a Court of Equity ought to hold him responsible to the children.

Mr. Tinney and Mr. J. Russell, for Sarah O'Ferrall, the representative of Gerald O'Ferrall:-There is no ground whatever for fixing Gerald O'Ferrall with any greater liability than that which has been imposed on him by the Court below, nor indeed for holding him liable at all. He acted throughout fairly and properly there is no pretence for charging him with collusion or connivance. He derived no benefit whatever, like M'Can or John O'Ferrall, from the manner in which the fund was administered. He was not in any way a party to the proceedings until the marriage of Catherine Forbes with John O'Ferrall: and even then there is nothing to show that he interfered at all in the matter, or that he derived the smallest advantage from the mode in which the money was paid. If there were any fraudulent proceedings, they rested entirely with Ross M'Can and John O'Ferrall, the husband of Catherine. The Lord Chancellor therefore has rightly dismissed the bill filed against Gerald O'Ferrall; for that bill throughout charged fraud, and did not ask any relief in respect of mere negligence. It may be that Gerald O'Ferrall had not actively and attentively applied himself to see the object of the articles of the marriage properly carried out; but that alone will not render him liable to this proceeding, and there is not the least pretence for saying that he has incurred any liability by joining in any fraudu

1840.

M'CAN

บ.

O'FERRALI,

et e contra.

1840.

M'CAN

v.

O'FERRALL,

el e contra.

1841:

April 27.

lent proceeding. Admitting therefore that the rights of the children are such as are now contended for, and not disputing any of the cases which have been cited to show the nature and extent of those rights, it is plain that Gerald O'Ferrall is not affected by them, but that he is entitled to have the bill against him dismissed.

Mr. Pemberton, in reply:-The award has been made under a rule of Court, which was made at the desire of all the parties interested; they are therefore bound by it. The payments made by M'Can were made in ignorance of the marriage and the trusts of Catherine's settlement, and he was under no obligation to inform himself of those trusts. The person so carrying them into effect was Gerald O'Ferrall ; and his estate, not that of M'Can, must be held responsible.

The Lord Chancellor :-My Lords, this case affords a melancholy instance of the extent to which frauds may be practised within the precincts of a Court of Equity. When such cases occur, the Court must feel an anxious wish to afford all such relief as may be consistent with its principles and practice, and as far as possible to prevent its proceedings from being instrumental in protecting the authors of such frauds. This is not only due to the parties injured, but to the public, who have an interest in the result, which may deter others from attempting similar practices.

The papers in the cause are very voluminous, and the argument both at this bar and in the Court below took a very extended range; but it will not be necessary for me to occupy much time in stating the grounds.