TJOBOGAN

loupedve hoq ng to dat

1833. from his own contract, this gift to B. shall be -taken as (testamentary, shall be taken as if inJcluded in the will, and the subject matter of it 97shall be brought back and made the fund out of

WIENHOLT.

which to perform the obligation: at all events it shall be made the measure for calculating and -ordering the performance of, or dealing with the the claim arising under, that obligation,

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lad The proposition which I have now stated apnopears to me to apply equally to all kinds of con-qveyances, whether by the sale of land to evade the -performance of an agreement, where the agreement ei was to give as much land to A. as B. shall have; *.sor by purchase, of land, where the object was to -defent tlie agreement, to give such an equal share of personalty or by conveyance of land, either briginally possessed or purchased afterwards; or byudssigument of securities; or by the transfer of to monies, or other personal chattels, provided those yoonveyances] assignments, or transfers were made bohatlout im out, but with a reservation on the part sto6th person bound, and that those transfers, condive mecs and assignments conferred not in all odtrespects the real, but only in whole, or in part an apparent right to the property, and and the distinction i qis always to be taken between the pretence, o or the etappearance, and the reality. Such contrivance in bioparallel enses under the bankrupt laws, is treated feynidsdealt with as a badge of fraud, and must here, -biobavings the same tendency and effect, be subject to the same rule. The hand of equity will not be ostayed by liny such contrivances, or big

This view appears to comprize all the points of Bag brost to the case regarding the different has of property, and the different kinds of acts which were done in

respect of those kinds of property, subsequently to the bond being executed by Daniel Birkett the elder; and the two questions to which I am anxious to direct your Lordships' attention, are-first, to what property this proposition which I have ventured to lay down is applicable; and, secondly in what way it is to be applied to the different kinds of property, and the different kinds of transactions which are in question.

Before going into those two questions, I shall shortly refer your Lordships to the authorities upon which I think the general proposition laid down appear to stand incontrovertibly. The leading authority, from which the others may be said to spring, is the case decided in this House of Jones v. Martin.* The Lord Chancellor in advising the House to reverse the decree of the Court of Exchequer, there says, "the covenant did not prevent the father "from giving the stock out and out." In that case, the father had made a covenant to give or leave by his will all his personal estate equally among his children; and it appears, that he had given the stock in a way somewhat similar to the gifts in the present case, in order to evade the obligation. His Lordship goes on to say, "the "covenant did not prevent the father from giving "the stock out and out; but, if he chose to keep it, " he kept it applicable to the general engagements "which he had entered into for his family. Lord

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Cowper said, in the case of Turner and Jenningst, "that if the father were permitted to act accord"ing to the facts of that case, it would put an "end to the custom of London. He was a great

In a Note to the Report of Randall and Willis, 5 Ves. 262. † 2 Vern. 612, 685.

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"man, and to his lordship's doctrine I declare my "assent: so of a covenant as the present. Here "also the property continued to answer all the "father's own purposes during his life. If a father "will be partial and give a preference, he must

give against himself, and not make a mere re"versionary gift. He should immediately feel "himself so much the poorer for his gift; if he is "willing to suffer that, then let him yield to the "impulse of his partiality. But if a father may "effectuate his purpose by any thing short of this, "it will furnish perpetual opportunity for subter

fuge and scheme to defeat and disappoint these "covenants, which ought to be most honourably "observed."

In the case of Randall and Willis*, observations were made of a similar tendency. In Lewin v. Madocks+, Lord Eldon, referring to the case of Jones v. Martin, in which his Lordship appears to have been counsel, states the principle of it thus. He says "It is one of those loose cases "of a covenant to leave to one child an equal share " of the 'personal estate and it was held by the "House of Lords to mean only to leave the co"venantor fully at liberty to dispose providently "or improvidently of his personal estate, such as it "was or might be till his death; provided he disposed of it absolutely as against himself, but if "he did not strip himself absolutely of the interest

in the property, he could not by reserving an "interest for life, and giving to some one favourite "child, defeat the covenant: that would be a fraud upon it:" which is to the same effect, as far as it goes, with Randall and Willis. That was a question + 8 Ves. 156.

*5 Ves. 262.

as to the execution of a contract on marriage by bond, with condition to settle all the personal estate that the husband should at any time during the coverture be possessed of. And it was in that case held, that the party was not at liberty to lay out the money in the purchase of land for the purpose of evading the obligation of the contract. Another case, and the only other to which I shall refer your Lordships, is the case of Fortescue v. Hennah*, in which it was decided that " a father, "under a covenant for an equal division at his "death of all the property he should die seised or possessed of between his two daughters or their "families, though he retains the power of free disposition by act in his life, cannot defeat the "covenant by a disposition in effect testamentary, "as by reserving to himself an interest for life." That was a decision at the Rolls by Sir William Grant, who entered into the subject at some length, and referred, amongst other authorities, to that of Jones v. Martin, and he speaks thus-"Against "a diminution of his property, by absolute gift, during his lifetime, his own interest and conveni❝ence form a pretty good security: not so, where "without any diminution of his own enjoyment he "exercises merely a posthumous bounty, though by "an irrevocable instrument. It seems to me that the

spirit of such a covenant requires that every dis"position should be excluded which is in its effect "testamentary, though not such in point of form." His Honour here lays down the principle to which I have adverted, that if in substance and effect the conveyance defeats or defrauds the obligation entered into, and is done with that object, having * 19 Vesey, 67.

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that tendency, producing that effect, though not in form testamentary, it is to be dealt with as if in fact it were testamentary, for the purpose of protecting the right, for the purpose of defeating the fraud, for the purpose of securing to the party under the agreement the right to that part of the estate to which he is entitled. This, then, would apply in the first place to all purchases and conveyances of land purchased after the time when the plan was laid for defeating the obligation of the bond, and which land or other real estate was purchased with such view, and not conveyed out and out to any person, but conveyed, reserving to Daniel Birkett the elder himself an interest in it, so as plainly to shew that he did not depart with the land from himself, and did not give it, according to the language of those cases, out and out, but only gave it after his own life in a certain event, keeping as much interest as he could to himself for his life. Such a transaction in all its stages is to be taken as part and parcel of a testamentary disposition. The proof is as strong as it can be of the intent; the taking the opinion of counsel expressly upon the question, how he could best defraud the covenant, and the whole evidence tend to the same point. The conveyance of one estate is to Daniel Birkett the elder for life, to the Defendant Sarah Logan; then the wife of Daniel Birkett the nephew, during her life; and after her decease to Daniel Birkett the nephew for life, in case he survived her; with remainder to such uses as the survivor of them should appoint; remainder to the right heirs of Daniel Birkett the elder in fee. There are other conveyances of the same description.