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Decisions of the Superior Courts of New South Wales, 1788-1899

Howe v Underwood and Robinson [1832] NSWSupC 36

trusts - succession - land law, title - Crown grant, by Governor Macquarie - Howe, George, property of

Supreme Court of New South Wales

Forbes C.J. and Dowling J., 25 June 1832

Source: Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 70, Archives Office of New South Wales, 2/3253


[p. 73]

In Equity.

This case came on before the Honorable Chief Justice Forbes and Dowling J. on the 22d. instant for further directions upon the Masters report filed in Court on the 3rd March 1832.

[p. 74] The Principal question submitted to the Court, sitting in Equity, and upon which the Master requires our direction, is whether George Howe, under the absolute Grant in the report mentioned took the property No. 96. George Street as a trustee for the children of the Complainant Sarah Howe or in his own right.

We have fully considered the masters report, and the evidence taken in this case and we are clearly of opinion that the said George Howe under the absolute Grant took the property No 96 George Street as a trustee for the children of the Complainant Sarah Howe, and not in his own right.

It is found by the Master, that the Complainant Sarah Howe was under the will of her former husband Edward Wills date 24th May 1810. entitled amongst other property, to the property No. 96 George Street for the remainder of an unexpired lease of 14 years dated 10th August 1806, that [p. 75] in contemplation of a then intended marriage between the said Sarah Wills and George Howe a deed of trust dated 28th September 1812 was executed, whereby the lands, houses, tenements, warehouses, goods, property, chattels, stock in trade, credits and effects, set forth in a schedule annexed thereto, were conveyed and assured (subject to the sole control and authority of here the said Sarah Wills, during her life and subject to such disposition as she should make for the benefit of her children by deed or wills,) in trust for all her then children and any she might have under the then contemplated marriage in equal shares and proportions.  By the same deed it was agreed, that all the property which should after the marriage be acquired by the said Sarah Wills, by will, inheritance or otherwise, should be held upon the same trusts as are limited as to the property enumerated in the schedule and or led upon the trust Deed.

[p. 76] the master further finds that during the early period of the Colony, and particularly during the time of General Macquarie the Government was in the habit of converting Leasehold Property, into an absolute Grant upon the letters erecting a two story house or laying out in building, from 800£ to 1000£ pounds, and that such privilege was generally considered as an absolute Grant.  He further finds that the Complainant Sarah Howe formerly Sarah Wills, had previous to her marriage with George Howe erected such buildings as would have entitled her to have such lease converted into an absolute grant, that General Macquarie frequently promises to convert the lease of the premises No 96 George Street into an absolute Grant upon the completion of certain Buildings which were then in the course of erection and which were subsequently finished.

[p. 77] That such buildings were commenced by Sarah Howe and were finished under her direction and at her expense and that George Howe never gave any directions as to the carrying on of such buildings, and always declared that they were erecting for the benefit of Mrs Howe's children.  In June 1816, George Howe obtained an absolute Grant of the premises at No 96 George Street in his own name, at which period four years of the original lease were unexpired.  Neither Sarah Howe, nor the trustees under the deed of Trust, were parties to the surrender of the original lease, nor was the Governor aware, of the existence of the deed of Trust, at the time the Grant was made to George Howe.  The Master further finds that Sarah Howe was at the time of her marriage with George Howe, worth at least 5000£, and that at the same time of the marriage the said George Howe was Insolvent, that his family was expensive, and the profits of his business not more than adequate to meet the [p. 78] expenses of himself and family.

Under these circumstances so found by the master, we are clearly of opinion that George Howe under the absolute Grant took the property No. 96. George Street as a trustee for the children of Sarah Howe and not in his own right.  The meritorious consideration for the Grant was performed by Sarah Howe before her marriage, and there is no doubt that the trustees, under her marriage settlement would have been entitled to obtain the absolute Grant of the premises, for the purposes of the trust.  The taking of the absolute grant of George Howe in his own name, was in our opinion fraudulent, he not being entitled thereto and if he took it at all, he could take it only in trust for the benefit of his wife and her children.

This Point has not been argued before us at bar, but being called upon to give [p. 79] our directions in respect thereof upon the master's report, we order and direct accordingly that the said property No. 96 George Street passes to the trustees for the children of Sarah Howe.

With respect to the cattle and the several allotments of land mentioned in the masters report we are not called upon to give any specific direction, nor indeed does it appear to us, that there is sufficient certainty in the masters report upon these points to enable us to give any specific direction.

Published by the Division of Law, Macquarie University