11-1948-439_PaulMarriottWynch_1841

This is the last will and testament of me Paul Marriott Wynch[3] of Calcutta in the Province of Bengal Esquire a Senior Merchant in the Honorable Company’s Bengal Civil Service.  Whereas by a certain indenture or deed of marriage settlement bearing date the twenty first day of December one thousand eight hundred and twenty six and made in contemplation of my then intended marriage with Sophia Martha Maling my now wife the sum of Sicca Rupees fifty thousand was settled and secured in the hands of James Pattle and William Casement and to such other trustee or trustees as might thereafter be appointed upon the several trusts and to and for the ends intents and purposes and with under and subject to the powers provisos agreements and declarations thereinafter expressed concerning the same as reference thereunto had will more fully appear and which said sum I do hereby direct shall be held and possessed of the trustees named in the said deed of settlement upon the trusts and for the purposes therein mentioned and whereas I am at present possessed of household goods furniture plate and goods and chattels which may be forthcoming from the estate together with [a considerable sum of money now in the hands] of  Messieurs Alexander and Company of the Town of Calcutta Merchants and Agents and am likewise entitled to certain reversionary interests under the will of my late father William Wynch as also to certain expectancies on the death of my mother In the first place I give devise and bequeath to my brother the Reverend Peter Bourchier Wynch of Westfield Vicarage Sussex the sum of five hundred pounds sterling to be paid to him as soon after my death as may be practicable  I give to my friends Thomas Bracken Nathaniel Alexander and Charles Bourchier Esquires fifty pounds apiece as an acknowledgement for the trouble they may have in the execution of this my will as to my personal estate of every nature and kindsoever I give the same unto the said Thomas Bracken Nathaniel Alexander and Charles Bourchier their executors administrators and assigns upon the trusts following that is to say upon trust as soon as conveniently may be after my decease in the discretion and of the absolute authority of my said trustees or the survivors or survivor of them his executors administrators or assigns to sell dispose of and convert into money the whole of my personal estate as shall not consist of money and I declare that all persons paying to my said trustees or trustee any trust monies belonging to my estate and taking their or his receipt for the same shall be effectually discharged from all responsibility in respect of the application thereof And I do hereby declare that the said trustees or trustee for the time being do and shall stand and be possessed of such monies upon trust that they the said trustees or trustee for the time being do and shall stand and be possessed of such monies upon trust that they the said trustees or trustee do and shall out of the said monies pay satisfy and discharge all my funeral expenses which I direct shall be without any unnecessary pomp or expense my just debts and testamentary expenses and the legacies given by this my will or which I shall give by any codicil to this my will or by any testamentary writing whatsoever and do and shall lay out and invest the residue of the said monies which shall remain after answering the purposes aforesaid in their or his names or name in the parliamentary stocks or public funds of Great Britain or at interest on government or real securities in England and Wales or in the security of the United Company of Merchants of England trading to the East Indies called Companys paper and do and shall from time to time alter vary and transfer the said trust monies so to be laid out and invested as aforesaid for into or upon other stocks funds and securities of the like nature at their or his discretion and I do hereby declare that the said trustees or trustee for the time being shall stand and be possessed of and interested in the said trust monies and the stocks funds and securities in which the same shall be invested and the interest dividends and annual produce thereof upon and for the trusts intents and purposes hereinafter expressed of and concerning the same that is to say upon trust to pay the interest dividends and annual produce of the said trust monies stocks and securities unto my said wife or to empower or permit her to receive the same for the term of her natural life if she shall so long continue my widow and unmarried and from an immediately after the marriage or decease of my said wife then as to all the said trust monies stocks funds and securities hereinbefore bequeathed and the interest dividends and income thenceforth to arise therefrom in trust for such child or children of mine as being a son or sons shall attain the age of twenty one years or being a daughter or daughters shall attain the age or marry with the consent of her or their guardian or guardians for the time being equally to be divided between them if more than one and I declare and direct that if at the marriage or decease of my said wife any of my said children being a son or sons shall not have attained the age of twenty one years or being a daughter or daughters shall not have attained that age or have been married with such consent as aforesaid it shall be lawful for my said trustees or trustee to apply all or any part of the income of the presumptive or contingent share of such child or children for his or her maintenance or education or otherwise for his her or their benefit during such the period of his her or their minority or discoverture or respective discovertures as the case may be as to the said trustees or trustee shall seem proper and if the whole of such income shall not be so applied then I direct that the unapplied income shall be improved at interest and go in augmentation of the share or respective shares from which the same shall have arisen but so nevertheless that my said trustees or trustee shall not be precluded from applying such invested unapplied income and the proceeds thereof for the benefit of such child or children of any subsequent period of his or her minority or discoverture or respective minorities or discoverture and it is my will that in case I shall leave no child surviving me who being a son shall attain the age of twenty one years or being a daughter shall attain that age or marry with such consent as aforesaid then as to all such trust premises hereinbefore bequeathed shall be and remain in trust fro my two nephews William Willis[4] at present First Lieutenant of His Majesty’s Sloop of War called the Satellite and Paul Willis at present a Lieutenant in the Corps of Engineers in the Service of the Honorable East India Company Service in equal proportions failing one the survivor to take the whole and I direct and declare that in case the said trustees or either of them or any trustees or trustee to be appointed under this present provision shall die or become unwilling or unable to act in the aforesaid trusts before the same shall be fully performed then and in every such case it shall be lawful for the surviving or acting trustees or trustee for the time being of this my will or if there be none such for the unwilling trustee or trustees or in case all the said trustees shall have departed this life then for the executors and administrators of the last surviving trustee with the consent in writing of my said wife during her widowhood and afterwards of the proper authority of the person or persons to whom the present power is given to nominate any fit person or persons to supply the place or places of such trustee or trustees so dying or becoming unwilling or unable to act as aforesaid and immediately after every such nomination the said trust premises shall be conveyed and transferred so and in such manner as the same may vest in the surviving or continuing trustees or trustee or in such new trustees or trustee solely as the case may require and such new trustees or trustee shall be entitled to exercise the same powers and authorities in relation to the said trusts as if he or they had been appointed a trustee or trustees by this my will and I do so hereby further declare that the trustee or trustees for the time being of this my will shall be charged and chargeable only with such monies as they respectively shall actually receive by virtue of the trusts hereby reposed in them respectively notwithstanding their joining in any receipt or other act for the sake of conformity only and shall not be answerable or accountable for any banker broker or other person with whom or in whose hands the said trust monies or any part thereof shall temporarily be placed for safe custody or otherwise nor for any loss misfortune or damage which may happen in the execution of the aforesaid trusts or any of them or in relation thereunto unless the same shall happen by or through their or his wilful default and also that it shall and may be lawful for my said trustees respectively by or out of the monies which shall come to their or his hands respectively to retain or allow to each other all costs charges damages and expenses and fees to counsel for advice which they shall respectively sustain or expend in or about the execution of the said trusts or in relation thereunto and I do nominate and appoint the said Thomas Bracken and Nathaniel Alexander of the Town of Calcutta Esquires and the said Charles Bourchier Esquire of Stone Buildings Lincolns Inn in the City of London and at present Solicitor to the Treasury in England executors in trust for this my will and I appoint my said wife so long as she shall continue my widow and unmarried guardian of such of my said children as shall be under the age of twenty one years or unmarried at the time of my said decease during his her or their minority or respective minorities and after the decease or marriage of my said wife I appoint the said Charles Bourchier and Nathaniel Alexander guardians of my said children. In witness whereof I the said Paul Marriott Wynch the testator have to this my last will and testament contained in this and the preceding sheet of paper to the first five pages whereof set my hand and to this sixth and last page my hand and seal this thirteenth day of January in the year of our Lord one thousand eight hundred and thirty two – Paul Marriott Wynch – Signed sealed published and declared by the said Paul Marriott Wynch the testator as his last will and testament in the presence of us who in his presence at his request and in the presence of each other have hereunto subscribed our names as witnesses – Cha^s G. Strettock – J.B. Crouch – N.H. Wilins

[This will requires amendment in consequence of the disastrous failure of Alexander & the legacy of 500£ to be omitted]

 

Codicil 17/4/1837

I Paul Marriott Wynch do make this codicil to my will I hereby revoke so much of my will as gives a legacy of 500£ to the Rev^d Peter Bourchier Wynch and instead of the executors named in my said will I hereby appoint my wife Sophia Martha Wynch sole executrix thereof dated this 17^th April 1837 – Paul Marriott Wynch – Signed and declared as a codicil to his last will and testament by the above named Paul Marriott Wynch in the presence of – Elizabeth Peacock – George Neville –

 

Affidavit 30/4/1841

Appeared Personally in the Prerogative Court of Canterbury in the goods of Paul Marriott Wynch deceased Elizabeth Peacock spinster of Hawkhurst Kent and George Neville servant of Hawkhurst Kent and made oath that they knew and were well acquainted with Paul Marriott Wynch formerly of Calcutta in the East Indies but late of Hawkhurst in the County of Kent Esquire deceased and also with his manner and character of handwriting having frequently seen him write and having now viewed and perused the last will and testament of the said deceased hereto annexed occurring date the thirteenth day of January one thousand eight hundred and thirty two and observed the words “what may be forthcoming from the estate” written in ink and the the word and initials “dele P.W” written in pencil in the margin of the first page of the said will and the words “This will requires amendment in consequence of the disastrous failure of Alexander @ the legacy of 500£ to be omitted” written in ink and the words “and another executor to be named in lieu of N. Alexander and T. Bracken” written in pencil on the back of the same these appearers further made oath that they do verily and in their consciences believe the said words and initials to be of the proper handwriting of the said Paul Marriott Wynch deceased – Elizabeth Peacock – George Neville – the thirtieth day of April one thousand eight hundred and forty one the said Elizabeth Peacock and George Neville were duly sworn to the truth of this affidavit by virtue of the annexed commission before me – Henry Jeffreys Curate of Hawkhurst Kent Commissioner

 

Probate 22/6/1841

Proved at London with a codicil the 22^nd June 1841 before the judge by oath of Sophia Martha Wynch widow the relict the sole executrix named in the codicil to whom adm’on was granted having first been sworn by Com’on duly to administer – By motion & decree

 

High Court of Chancery 29/5/1854 (Wynch v Grant)

(from Charles Stewart Drewry’s Report)

A deed, appointing new trustees, recited, that they had agreed to become trustees, and then assigned the trust premises to them to hold on the trusts of the original deed.  There was no express agreement or declaration that they would execute the trusts:  HELD: that a debt created by a breach of trust, was not a specialty debt.

The bill was by the children of Paul Marriott Wynch and Martha Wynch against the executors of Sir John Peter Grant, formerly a trustee, and against William Patrick Grant, a surviving trustee of the settlement made on the marriage of Mr and Mrs Wynch[5], and its object was to recover against the Defendants for a breach of trust, in respect of 50,000 sicca rupees, the subject of the settlement.  By the decree on the hearing it was declared that the transaction referred to was a breach of ttrust.  No part of the money was ever used by Sir John Peter Grant; but the whole of it by the other trustee who, however, under certain transactions in India and Scotland, which it is immaterial to detail, became exonerated and discharged; and the master found that in respect of the breach of trust, Sir John Peter Grant’s estate was liable to the extent of 7,101l. 18s. 6d.  The estate was insufficient to pay this and other debts, if this was to be treated as a specialty debt; and hence it became material to determine whether it was a specialty or simple contract debt, and this question turned on the language of the deed appointing Sir John Peter Grant and William Patrick Grant trustees of the fund.

They were appointed by a deed dated in July, 1844, which recited the original settlement and the power contained in it of appointing the new trustees, and then it contained the following recital and appointment:-

“And whereas the said Sophia Martha Wynch, the survivor of the said Paul Marriott Wynch and Sophia Martha Wynch hath requested the said Sir John Peter Grant and William Patrick Grant to become trustees for the purposes in the said indenture mentioned in the place and stead of them the said Sir William Casement and Nathaniel Alexander, to which the said Sir John Peter Grant and William Patrick Grant have consented and agreed; Now this indenture witnesseth that by virtue and in pursuance of the power or authority given or reserved to her the said Sophia Martha Wynch for that purpose by the hereinbefore in part or otherwise in anywise enabling her in this behalf, and in exercise and part performance thereof, she the said Sophia Martha Wynch hath nominated and appointed, and doth by these presents nominate and appoint, the said Sir John Peter Grant and William Patrick Grant to be trustees in the place and stead of them the said Sir William Casement and Nathaniel Alexander to act in the management and execution of the several trusts in and by the said in part recited indenture expressed and declared or such of them as are now subsisting, undetermined and capable of taking effect.  And this indenture further witnesseth that for the purpose of vesting the monies, funds and securities for money belonging to the trusts of the said in part recited indenture of settlement in the said Sir John Peter Grant and William Patrick Grant, and for and in consideration of the sum of company’s rupees ten, of lawful money of Bengal, to the said Sir William Casement and Nathaniel Alexander in hand, and truly paid by the said Sir John Peter Grant and William Patrick Grant at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, they the said Sir William Casement and Nathaniel Alexander have, and each of them hath, bargained, sold, assigned, surrendered and transferred by these presents, so and each of them doth bargain, sell, assign, surrender and transfer unto the said Sir John Peter Grant and William Patrick Grant, their executors, administrators and assigns, all and singular the trust estate, monies and property of the funds and securities in or upon which the same are now placed, which under or by virtue of the said hereinbefore in part recited indenture of settlement are or is in the custody, possession or power of them the said Sir William Casement and Nathaniel Alexander, or either of them, to have, hold, receive and take all and singular the said trust estate, monies and property, funds and securities and every part thereof, and other the premises hereinbefore assigned or mentioned or intended to so be, unto the said Sir John Peter Grant and William Patrick Grant, their executors, administrators and assigns, but nevertheless upon the same trusts and to and for the same ends intents and purposes and subject to such and the same powers, provisos, declarations and agreements, as are contained, mentioned or declared of or concerning the same, or other the estate, monies and property, funds and securities in or by the said hereinbefore in part recited indenture of settlement, or so many of them as are now subsisting, undeteremined and capable of taking effect, to and for the intent and purpose that the said Sir John Peter Grant and William Patrick Grant may be enabled to act in the management and execution of the trusts of the said hereinbefore in part recited indenture of settlement, or such of them as are now subsisting or capable of taking effect, as fully and effectually in all respects, and with the like indemnification as they the said Sir John Peter Grant and William Patrick Grant might have done in case they had originally appointed trustees under or by virtue of the said hereinbefore in part recited indenture of settlement.”

Mr Glasse and Mr A Smith for the plaintiff:

It is clear that if in a trust deed there are the words “it is delared and agreed” or words equivalent, the debt arising on a breach of trust is a speciality, and it is not necessary to have a covenant in terms.  Now here there is an agreement to hold on the trusts of the settlement, – that is equivalent to an agreement to execute the trusts. The insertion of an actual declaration is a matter of convenience; it is not of necessity to create the contract.  Ady v Arnold, it is true, does proceed on such a distinction; but that case proceeds on a misapprehension of the case of Bartlett v Hodgson.  All that the latter cas decides is that the habendum does not constitute a speciality debt as against the heir; not that it does not create a specialty debt against the executor. Ady v Arnold is founded on the supposition that Bartlett v Hodgson decided that the habendum creates no specialty whatever.  But in this case there is more.  The recital of the agreement to become trustees amounts to a covenant to become trustees, and therefore to a covenant to perform the trusts: Barfoot v Freswell, Saltoun v Houstown.  They cited also on the case generally, Gifford v Manley; Mountford v Lord Cadogan; Wood v Hardisty; Turner v Wardle.

Mr H Clarke for Mrs Wynch, the tenant for life under the settlement, in the same interest.

Mr Gifford and Mr Cairns for the defendant were not called on.

THE VICE-CHANCELLOR:

I think that the case of Ady v Arnold governs this case. [His honor referred to the deed appointing Sir John Peter Grant and Mr Grant trustees, and observed upon the recital of the agreement, that, assuming it to amount to a covenant, all it imported was an obligation to accept the trusts; and that the rest of the deed was merely an assignment of the trust property in such manner as to vest the property in the trustees on the trusts of the original settlement.  His honor then proceeded:-] There is no language importing that they undertook or agreed to execute the trusts of the settlement.  No doubt the absence of these words would not relieve them from the duty of executing the trusts.  But what Lord St Leonards says in Ady v Arnold clearly applies to this case.  He says – “The Courts do not very readily imply a covenant from words that do not import covenant.” His lordship is there applying himself to a case where the trustees had executed the deed, and all requisite formalities had been completed, and the question was on the construction of the instrument.  Now that case is like the present in this respect.  In that case there was a deed appointing certain persons new trustees; as such they executed the deed: they accepted the trusts, and then the rest of the deed was just as here, not exactly in the same words, but the same in substance.  Lord St Leonards says there are no terms on which a covenant could be raised.  This is precisely the same case; there is nothing by which the trustees covenant to do any acts or to execute the trusts.  True, it is implied by their acceptance of the trusts that they will execute them; but that is because there is any express agreement.  And this Court does not take a view different from the law as to what constitutes a specialty debt.  There is no such thuing as an equitable covenant, if there is not a legal covenant.  The word covenant is not necessary; and agreement under seal is sufficient no doubt; but there must be a legal agreement to do some special acts.  Here there is nothing of the kind.  The covenant created by the recital (if it is a covenant) is a covenant to accept the trusts.  Having accepted, the breach consists in not performing the duty; but there is no covenant or agreement to perform the duty.  I am of opinion that I could not decide the case differently from Ady v Arnold without overruling that case.  But, independently of being bound by that decision, I see no ground to doubt its justness.

 

Comments or questions are welcome.