In re Stuart

1 Edw. Ch. 168

Opinion

The Vice-Chancellor,

after suggesting that the applies-^on cou^ not granted upon the petition alone—and in proof thereof referred to Purds.ro v. Jackson, 1 Russ. 1, and the cases there cited

Footnotes

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(a)—directed an order to be entered, upon the understanding that the form of a settlement should be approved of by the court and be executed in favor of the petitioner Letitia and her children prior to the raising of the said loan.

The important parts of the order were as follow: “ On read- “ ing the petition of Frederick A. Stuart and Letitia his wife, “ verified by the affidavit of the said Frederick A. Stuart, set- “ ting forth, that the said Letitia, &c. &c.” “ And on motion “ &c.” “ and the said Letitia Stuart being present in court, and “ being examined by the court, and expressing her desire that' “ the sanction of this court should be given to the said assign- " ment, in the manner proposed by the said company and that “ an order should be, for the said purpose, entered in this mat- “ ter: It is ordered, adjudged and decreed, and this court, by “ virtue of the authority therein vested, doth order, adjudge and “ decree, that the said petitioners may be and they hereby are “ authorized to assign and transfer all their respective right, “ title and interest of in and to the said legacy of five thousand “ dollars, mentioned in the said petition, and which in and by “ the said last will and testament was bequeathed to the said “ Letitia Stuart, to the New York Life Insurance and Trust “ Company as security for the repayment with interest of a “loan of three thousand dollars, which is proposed to be and “ shall be made by the said company to the said Frederick A. “ Stuart; and that such assignment, when made, shall be bind- “ ing and conclusive upon the said Letitia and upon all her e‘rights and interests in the said legacy: But it is farther or* “ dared, that before the said sum of three thousand dollars shall 86 be paid by the said company, the said Frederick A. Stuart 88 shall submit to this court a settlement of the said legacy and 88 money on and for the benefit of his said wife and children to “ be approved of by this court.”

A settlement was accordingly prepared and submitted to the Vice-Chancellor; and the draft of it, with his approval endorsed, was directed to bo filed in the office of the clerk of the court simultaneously with the intended loan. Mrs. Stuart executed this settlement apart from her husband, in the presence of the Vice-Chancellor, (a) “ band—although it is the intention of the parties, that the said Fre- “ derick A. Stuart shall manage and superintend the business in « the said sum of three thousand dollars shall be embarked : “ but still nevertheless only as a trustee for his said wife and her # J “ child and children (and to which he doth agree, testified by his “ executing these presents.) And upon further trust, and with “ full power to the said Letitia Stuart, as if she was a feme sole and “ without any control or right on the part of her husband, by deed “ or will duly executed during any part of her life, to grant, limit, “ bequeatji or appoint the said five thousand dollars (subject to all “ lien of the said New Y.ork Life Insurance and Trust Company “ thereon and therein,) and all moneys to be raised upon the same “ under the said order in chancery, and all shares of business cón- “ nected with the said moneys or in which the same may hereafter “ be embarked, and all profits, interest and accumulations thereof “in any way—and to whom she may choose. And in default, See. “ Sec.”

See also Smith v. Kane, 2 Paige’s C. R. 303; Wade v. Saunders, 1 Turn. & R. 306 ; Honner v. Morton, 3 Russ. 65; Sansum v. Dewar, ib. 91; Ripley v. Woods, 2 Sim. 165 ; Pierce v. Thornley, ib. 167; Wombwell v. Laver, ib. 360. The husband’s “ making a reasonable provision” for the wife’s benefit and that of her children out of the legacy helps the case: see Howard v. Moffatt, 2 J. C. R. 206 ; Johnson v. same, supra ; and Field v. Fowle, 4 Russ. 112.

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The New York Life Insurance and Trust Company required the trustee in the settlement to. be a party to the assignment, by way of mortgage, of the legacy. The trustee also, at their request, was the person who filled up and signed the form of proposal for the insuring of the life of the petitioner Letitia. He, upon doing so, took a stipulation from the company which indemnified him from all liability on account of so being the party who requested such insurance upon Mrs. Stuart’s life.

The settlement contained (inter alla) the following trusts : <e And 81 IT IS HEREBY AGREED AND DECLARED, that the Said C. E. his 6X6-88 cutors and administrators shall stand possessed of the said bequest 88 of five thousand dollars and all future right to the possession and 81 property therein and all proceeds to arise therefrom : Upon trust 88 to permit the said Letitia Stuart, with the joining and concurrence 88 of the said Frederick A. Stuart, to obtain and raise the said sum 88 of three thousand dollars from the said New York Life Insurance 88 and Trust Company, by way of loan or mortgage, at interest, pur88 suant to the terms of the said recited order in chancery. And then, 88 Upon trust to permit the said Frederick A. Stuart to receive into 88 his own hands the said sum of three thousand dollars from the said 88 New York Life Insurance and Trust Company; and also permit 88 him to invest the same in mercantile business and pursuits : but 88 so nevertheless that all the said loan and all accumulations, profit 88 and interest to arise therefrom shall be considered as the sole pro-88 perty and estate of the said Letitia during her life, free and clear 88 from the debts and liabilities of her present and any future hus-