Reports of cases in the High Court of Chancery, from 1757 to 1766. From the original manuscripts of Lord Chancellor Northington REPORTS OP CASES IN THE Higi) Court of C&atuerp, from .1757 to 1766. FROM THE ORIGINAL MANUSCRIPTS OP LORD CHANCELLOR NORTHINGTON. COLLECTED AND ARRANGED, BY THE HONOURABLE ROBERT HENLEY EDEN, ONE OF THE MASTERS IN CHANCERY. SECOND EDITION, WITH CONSIDERABLE ADDITIONS. IN TWO VOLUMES. VOL. II. Me non accipere modo h«c a MajoHbus voluit, sed etiam Posteris proderc. LONDON : JOSEPH BTTTTERWORTH AND SON, 43, FLEET STREET. 1827. * G. WOODFALL, AXOJU. COURT, 6&IHXBB STRUT, MtfBO*. • .. ~ » f : ♦ .• ■■ -.V * • ■ - LIST OF CASES. VOL ,. II. ■ A. Ptge Page Brown v. Quilter 219 Alden v. Gregory - 280 Buckinghamshire, Earl of, v. Anderson, Pelham v. 296 Drury - 60 Arnold v. Kempstead 236 Bute, Earl of, v. Stuart - 87 Ashby v. Blackwell - - 299 Byde v. Byde 19 Attorney-General «. Cholm- 304 C. Cadogan, Lord, Wright v. 239 234 Camden v. Morton 219 ti T'lrlrrr 230 207 Carter, White v. Cave v. Cave 366 139 v« ±yier Cheeseman, Ex parte 181 B. Cheney v. Hall 367 Barlow v. Surman 165 Cheslyn, Creswell v. 123 Barrell, Rybott v. 131 Cholmley, Attorney-Genera] [ Baskett v. Cunningham - 137 «.---- 304 Bath, Earl of, Southcote v. 323 Clarke v. Swaile 134 Beck, Hale v. Berkeley, Hussey v. 229 194 202 107 Collins, Fox v. Bethell, Vernon t?. 110 Cordwell v. Mackrill 344 Blackwell, Ashby v. 299 Cox, Sheldon v. - - 224 Bodens t>. Lord Galway - 297 Craggs, Digby v. - - 200 Brackenbury v. Brackenbury 275 Creswell v. Cheslyn 123 Bramhall v. Hall 220 Cunningham, Baskett t>. 137 IV LIST OF CASES. D. Page D'Aquila v. Lambert - *]5 Destouches v. Walker - 261 Digby «. Craggs - - 200 Dixon v. Metcalf - - 360 Donaldson v. Millar - 327 ■ t>. Osborne - ib. Donisthorpe t>. Porter - 163 Duke, Nortbcote v. 319 Drury, Earl of Buckingham- shire t>. - - - 60 Drury v. Drury 39 F. Fox v. Collins G. t?. Galway, Lord, Bodens v. Garden t>. Pulteney Garth, Hughes v. Gibson, Price v. Grower, Countess, Gower — t>. ' Gregory, Alden v. Grey v. Mannock • v. Montagu H. Hale v. Beck v. Lambe Hall, Bramhall v. , Cheney v. Earl 107 297 323 168 115 201 348 280 339 205 229 292 220 357 Harvey, Shanley v. Hawkins, Moor v. Heartwell, Attorney-General v. ... - Heath v. Heath Heathcote, Martin t>. Hewett v. Hewett Hoare, Pike v. - Houston v. Ives Hughes v. Garth Hurlock, Jackson v. Hussey y. Berkeley Inwood v. Twyne Ives, Howston v. J. Jackson v. Hurlock Jeffries, Reynous v. E. Eempstead, Arnold v. Knight, Robinson v. Knipe v. Thornton L. Page 126 342 234 330 169 332 187 216 168 263 194 148 216 263 365 237 155 118 Lamb, Hale t>. 292 Lambert, D'Aquila v. - *J5 Le Rousseau v. Rede - 1 Londonderry, Countess of, v. Wayne ... 170 Lugg, Willie v. *J8 LIST OF CASES. . .▼ M. Mac Cullock, Morris v. Mackrill, Cordwell v. Manners, Stanhope v. Mannock, Grey v. Martin v. Heathcote Metcalf, Dixon v. Millar v. Donaldson Montagu, Grey v. Moor v. Hawkins Morris v. Mac Cullock Morton, Camden v. N. Northcote v. Duke Norton v. Relly O. Osborne v. Donaldson P. Paul, Simpson v. Pelham v. Anderson Philpot v. Williams Pike v. Hoare Porter, Donisthorpe v. Pulteney, Garden v. Q. Page 190 844 197 839 169 860 327 205 342 190 219 319 286 327 34 296 231 187 163 325 Queensbury, Duke of, v. Sheb- beare ... 329 Quilter, Brown v. - - 219 R. Rayner v. Stone - - 128 Rede, Le Rousseau i. - 1 Relly, Norton v. 286 Reynous v. Jeffi-ies - 365 Robinson v. Knight - 155 Rooke v. Rooke 8 Rumboll v. Rumboll . 15 Rybott v. Barrell - - 131 S. Scriven v. Tapley - ,. 337 Shanley v. Harvey - 126 Shebbeare, Duke of Queens- bury v. - - - 329 Sheldon v. Cox - - 224 Simpson v. Paul 34 Southcote v. Earl of Bath 323 Stanhope v. Manners - 197 v. Earl Verney 81 Stone, Rayner v. - - 128 Stuart, Earl of Bute v. - ffj Surman v. Barlow . . 165 Swaile v. Clarke - - 134 T. Tapley, Scriven v. - 337 Taylor v. Clarke - - 202 Thornton, Knipe v. - 118 Twyne, Inwood u. - 148 Tyler, Attorney-General v. 230 Tyndall, v. 207 VI LIST OF CASES. U. Unett v. Wilkes V. Verney v. Earl Verney ■ Earl, Stanhope v. Vernon v. Bethell W. Walker, Destouches v. . Page 189 26 81 110 261 Page Wayne, Countess of London- derry «... - 170 White v. Carter - . 866 Wilkes, Unett v. - -189 Williams, Philpot v. - 231 Willie v. Lugg 78 Wright v. Lord Cadogan 239 Wycherly v. Wycherly - 175 LORD CHANCELLOR. Lord Henley, created May 19, 1764, Earl of North. INGTON. MASTERS OF THE ROLLS. Sir Thomas Clarke. Sir Thomas Sewell, Dec. 4, 1764. ATTORNEYS GENERAL. Sir Charles Pratt. The Honourable Charles Yorke, Jan. 25, 1762. Sir Fletcher Norton, Dec. 16, 1763. The Honourable Charles Yorke, Aug. 25, 1765. SOLICITORS GENERAL. The Honourable Charles Yorke. Fletcher Norton, Esq. Dec. 14, 1761. William de Grey, Esq. Nov. 1763. REPORTS OF CASES ARGUED AND DETERMINED IN THE Court of Cfwncerp* On Friday, the 16th of January, I76J, the Lord Keeper delivered the Great Seal to his Majesty in Council, and received it back with the title of Lord Chancellor. LE ROUSSEAU r. REDE. mi. 21st & 23d Feb. (Reg. Lib. b. 1760..M 129.) JJ ^ WlLLUM RAND ALL, by indenture, bearing date Settlement after *■- * . marriage of stock the 23d of June, 1713, made between the said William which had been Randall and Susan his wife of the one part, and two trus- ^ e wi f e 8 P 1 " "- r 7 perty, in trust for tees of the other part, reciting that the said William Ran- the husband for dall was possessed of or en ti tied to certain annuities therein J^ foTlife ^nd particularly mentioned, in consideration of natural love then to the heir and affection to his wife, Susan Randall, assigned the JJJ- husband and^ same to trustees, to hold in trust, and to the intent and wife, in default purpose that they should suffer and permit him to take and ma ] e , to the heirs female, &c. with a clause that, if the husband should settle lands of equal value to the like uses, the stock should be re-assigned to him ; a son being afterwards born, who died in the lifetime of the father, without. issue, and under age : held, that the property Tested in the father, and passed by his will. VOL. 11. B 2 CASES IN CHANCERS 1761. receive to his own use the said annuities, or yearly pay- t jT!*' rau mente ^ or ^i* ^ e > ^^ a ^ er h* 8 death in trust to permit his v. said wife to receive the same during her life, and after the Rede. decease of the survivor, to permit the heir male of their body (in the singular number) (a), to receive the same during the residue of the said term* and for default of such issue, to permit the heirs female of their bodies to receive the same during the residue of the said term ; in default of such issue, then to the right heirs of the said WiUiam Randall. The settlement contained a proviso that, in case the said William Randall should settle lands of inheritance, of equal value, to the same uses, then the said annuities should be reassured to him. William Randall had two children, William, who died an infant in his lifetime, and the defendant Prisca, who afterwards married Cox, by whom she had eight children. By his will, bearing date the 21st of April, 1759, he directed all his real and personal estate to be converted into money, and divided between his eight grandchildren. He left one daughter, the said Prisca Cox, and the said eight grandchildren by her. It appeared that the two Ex- chequer annuities were part of the wife's fortune, and that the defendant, Mrs. Cox, had no provision unless she was entitled to the annuities under the settlement. This bill was brought by some of the grandchildren, to carry the will into execution, &c. The daughter, Prisca Cox, by her answer, claimed to be entitled to the annuities under the settlement. The Attorney-General, and Mr. Perrot, for the plaint- iffs, contended, that the limitation in the settlement to the heir male of the body of the husband and wife, in the singular number, is the same as if it had been to the heirs male, in the plural : and being of a chattel, gives (a) Thi$ is not noticed in the Register's book. CASES IN CHANCERY. 3 the absolute right to the husband, and consequently, that 1761. the annuity became part of his personal estate, and passed t Rousseau as such by his will. That this was not the case of a will, v. nor of an executory trust, but of a deed the trusts of R*de. which are completely executed and declared by the deed. Webb v. Webb, 2 Venu 668, 1 i\ W. 132, Garth v. Baldwin (a). The Solicitor-General, and Mr. WUbraham, for the defendant, Mrs. Cox, contended, that the words heir male ought to be considered as words of purchase, being a con- tingent limitation to the heirs male or female, to take place upon the death of the father, in such of them as should be then living, like the case of Stanley v. Leigh, 2 P. W. 686, that if there should be sons living at his death, to such sons ; if none, then to the daughter and daugh- ters which should be then living. That as it was part of the wife's fortune, the settlement was in the nature of a contract, in which the wife must be supposed to stipulate for her children, and not to intend an absolute right to her husband after her death. That the only way to se- cure it to her children, is by making them purchasers : that it was the case of a trust, to be construed more li- berally than a legal estate, in which the court will regard the intention, and mould it in such a manner that the fa- ther should have the profit of the annuity only for his life, Peacock v. Spooner; 2 Vern. 195. Dqffbrne v. Good- man, ib. 362. Bagshaw v. Spencer (fi). The Lord Chancellor. The question now is, whether the interest in these an* nuities vests in Mrs. Cow, or in the grandchildren, on supposition that, by virtue of the limitations in the deed, (a) 2 Vt$. 646. (6) 2 Atk. 570. I Ves. 142. 1 Collect. Jurid. 37a b 2 4 CASES IN CHANCERY. 1761. the testator had the absolute interest in these annuities, Lb RoiT' a 8U bject to th e life's interest for life. v. For the grandchildren it is insisted, by the answer, Redb. ^jj at jf ^s had been an estate in lands, the limitation to the heirs male and the heirs female would have been words of limitation, and created an estate tail, and that the words creating a limitation in tail in an inheritance, will give the absolute interest in a chattel real or personal, and therefore, that the annuities are part of his personal estate, and pass under the will. It is contended, 2dly, That, supposing this not to be the case ; yet, that the limitation to the heir male as a purchaser, and the remainder on default of such issue, would be the limitation of an absolute interest to the son, and he dying in his father's life, the interest would vest in the father, transmissible to his representative. The first proposition is, and must be admitted to be the general rule : but it is said, exceptio probat regulam, and that this rule is liable to three exceptions. 1st. To any case, where, from the intent of the testator ap- pearing on the instrument, the word is intended as a word of purchase. 2dly. Where by the instrument the first estate is apparently intended to be an estate for life only, and the disposition over contingent. 3dly. Where the trust is executory, and the court has a power to model it. For this purpose the defendants lay great stress upon the covenant of redemption of the annuities, by settlement of an estate to the same uses. It is the fate of all courts of justice upon wills, it is the peculiar destiny of this court in contracts, wills, and trusts, to be the authorized interpreters of nonsense, and to find the meaning of persons that had no meaning at all, * Exfumo dare lucent, ut speciosa dehinc miracula promat. . CASES IN CHANCERY. . 5 A creative power is required to bring light out of dark- 1761. ness, and sound or specious determinations from unin- ^ b^^- «> telligible instruments. Civil polity, however, requires v . that there must be some supreme seer who is finally to Rede. arbitrate all disputes with certain justice and unquestion- able satisfaction. Thank God, it is not this court ! The rise of all these difficult questions seems to have been from the law, like all other sciences, using technical expressions not understood by the vulgar, and frequently as little by those they employ ; and as the genius of this country abhors, and ought to abhor, all arbitrary deter- minations on right and property, the ablest and greatest judges successively seem to have laboured to bring these cases, primarily anomalous, to some rule, or analogy, of rule ; and indeed the exceptions have not been properly such, (that is, not simple exceptions,) but rather an ar- rangement of cases excepted under another and stronger legal rule, the intent of the testator. This is the capital rule to which the counsel on both sides have appealed. The rule, therefore, of my decision must be, what the testator intended according to his expressions in this deed. In the first place, I must consider it as a volun- tary deed throughout ; the covenant at the end, as much so as the limitations in the body of it. 2dly, I must con- sider it as a settlement of the wife's fortune for the pro- vision of herself, and some issue of the marriage. And 3dly, when I view it in these lights, I cannot possibly see a rational intent: as it was, in the sense of the counsel on both sides, a provision for one issue in prejudice of all the rest. It is certain, that if this be considered as a money pro- vision for a family, the common intent and the natural intent would have been, a limitation after the death of the husband and wife to the children equally; and yet, that is inconsistent with the plain declaration of the party; 6 CASES IN CHANCERY. 1761. for Mr. Attorney-General insists, that it is an absolute Lb Rou88eau ^ m ^ ta ^ on *° the father, subject to the wife^s particular v. interest therein, or that it would have been absolute in Rede. t jj e gon on account of the remote remainder. And Mr. Solicitor insisted that it was contingent until the death of the father, and on his death would have absolutely vested in the heir male or female of his body then in esse. The three cases that were cited to prove that from the intent of the testator the estate might be narrowed to an estate for life, and operate by way of contingent remain- der, are cases of wills where the intent is both law and equity, and where the indicative words tie up the contin- gency to the death of the first taker ; but this is the case of a deed, in which the court has no liberty, and cannot alter the intent, because it is odd and absurd. I take it to be clear, that these annuities were part of the wife's fortune, and that it was not intended that the eldest son should run away with the whole from the rest of the children ; and therefore that the word heir-male must be construed heirs male. The rule of law in case of such a limitation of personal estate in a deed, gives the whole property to the first taker. But it is said that this is a trust, and therefore exe- cutory, and that, as such, I may model it according to what I judge to be the intent of the parties. But I am of opinion that there is no such rule as that, except in cases of imperfect trusts, and where the aid of the court is called for to effectuate them. And therefore I think that Lord Hardwicke's determination in Bagshaw v. Spencer was as right, sound, and certain, as his different determination was in Garth v. Baldwin (a). In Bagshaw v. Spencer he collected the intention from very strong expressions in the will. In Garth v. Baldwin the trusts (a) Vide Wright v. Pearson, ante, Vol. I. p. 119. CASES IN CHANCERY. 1 were completely directed, and therefore he allowed the 1761. words to hare their legal operation. In the present case ^^^ Che trust is completely declared. v. Suppose the husband, under the power in the settle- Rsbr. ment, had purchased land, and it had come before me upon his application to have the annuity re-assigned upon settling the land. I think that I ought to have directed the land to be settled upon the husband and wife tot their lives, with remainder to their first and other sons in tail; with remainder to the daughters, and not to have made the estate of the children contingent till the death of the father and mother. In that case the son would have taken an estate tail in remainder in the lands in the life- time of his father and mother. In the case of a chattel upon such a limitation, the whole would have vested in the son in the lifetime of his father and mother, and gone to his personal representatives, according to Pelham v. Gregory (a) in Dom. Proc., with which determination I am well satisfied. The intention of the deed is clear, that the person to whom the inheritance was limited, should have an immediate estate on his coming in esse. Declare, that the annuities vested in the testator, and are transmissible to his representatives (6). (a) Ante, VoL I. p. 518. rick, ante, Vol. I. p. 77* and (b) See the next case, and the cases cited in the note to also Cholmondeletf v. Mey* it. 8 CASES IN CHANCERY. 17th May, 1760. 5th&6thMarch, R00KE v. ROOKE. 1761. cJe\ MBS.' ' (Re 8- Lib - B - ^ f° L 161 > Covenant in George Rooke, the plaintiff's father, upon his marriage that incase the ™&i E'lixabeth Stevens, the plaintiff's mother, by articles, father should dated 6th September, 1723, in consideration of the mar- happen to die . . leaving issue .riage, and marriage portion, covenanted to settle certain male, and one or lunclg therein mentioned upon trustees to the use of him- more younger son or daugh- self for life, and after his death, to the use of the heirs ter, to raise por- male of A ^ of him and the said Elizabeth; and tions; if but one J then living for want of such issue, to the use of the heirs female of 1200/7 if three ^ e ^^7 °^ ^^ an< * ^ e ^^ Elizabeth; and for want 1500/., to be paid of such issue, to the use of the survivor of the husband fit fnpii 1 rf*flfif*f' tive ages or^ "^ w ^ e » an ^ ^ e heirs an ^ assigns of such survivor; and twenty-one, or if there should be any issue male or female, then the marriage, in such . in proportions as lands to stand charged with dPIOO a year for the use of the fk^° nd° f *° ^ durin g her Kfe ' And jt was agreed* that in the mother should settlement to be made, there should be a provision in case ol^uch 1 ^^^ * e 8aid Geor 8 e R°°ke should happen to die, leaving issue equally : held, male, and one or more younger son or daughter of the a son who attain- marr ^age, that then the trustees should, by rents and ed twenty-one profits, or mortgage of the lands, raise portions and pro- though he died visions for such younger children; that is to say, if but in the father's one then living, the sum of ^1000; if two, the sum of £ 1200; or if three or more, then i?1500, to be paid to such younger children at their respective ages of twenty- one, or marriage, in such proportions as the survivor of the father or mother should direct ; for want of such di- rection, share and share alike. The marriage took effect, and there was issue four sons, viz. George, the plaintiff, and three younger sons, Nicholas, Richard, and Henry, who all survived the CASES IN CHANCERY. mother ; but Henry died in his father's lifetime. The 1761* father died in June, 1758, and having a daughter, Eliza* vt^^ beth 9 by a second marriage, by his will, dated 4th March, v. 1758, after certain legacies, gave all the residue of his Rook*. estates, real and personal, to this daughter, her heirs, executors, and administrators. It appeared that the father in his lifetime, by inden- tures of lease and release of 3d and 4th February, 1734, had settled the premises to the use of himself for life, and after his death for securing the £100 a year to his wife for her life, subject thereto to the use of the plaintiff, his eldest son, for life ; remainder to trustees to preserve contingent remainders ; remainder to the first and other sons of the plaintiff in tail male, with like remainders successively to the other sons, with remainder in fee to the survivor of the father and mother ; and a term was created, to take effect upon the death of the father, for 100 years, for raising the portions of the younger children according to the articles. The plaintiff, George, the eldest son, filed the present bill, thinking himself aggrieved by the settlement of 1734, he being thereby made tenant for life only, whereas, ac- cording to the articles, he ought to be tenant in tail. He complained likewise of the settlement of 1734, it being thereby provided that £1500 should be raised for the portions of the younger children, whereas, at the death of the father, there were only two younger sons, Henry. having died before the father ; and he therefore insisted that the estate ought to be charged with £1200 only, according to the articles, and not with £1500. The bill prayed that the settlement of 1734 might be set aside, and that a proper settlement might be made, pursuant to the articles. Richard and Nicholas Rooke, the two surviving younger brothers, the trustees, and 10 CASES IN CHANCERY. 1761. Elizabeth, the daughter and devisee of the father, were jjTT'.. the defendants. v. The cause came on to be heard 17th May, 1760, Rookjs. w jie n it was decreed that the settlement of 1734 should be delivered up to be cancelled, and that the articles of 6th September, 1723* should be carried into execution ; and it was referred to a Master to see a new settlement made pursuant to the articles, as far as the circumstances of things then existing, and the deaths of the parties to, or claiming under the articles, would admit ; and all proper parties were to join in such settlement as the Master should direct. And it was ordered that the Master should inquire whether Henry Rooke, the son, had at- tained his age of twenty-one years before he died, and whether he died leaving issue, or having made a will, and the Master was to make a separate report thereof. The Master certified that Henry, the son, lived to attain his age of twenty-one years ; that he died un- married, and without issue, having made his will, dated 26th January, 1756, whereby he bequeathed to George Rooke his father, all his goods and chattels, debts and credits, and made him his executor ; and that George, the father, had, in his lifetime, proved the will. Upon this report the cause was now brought on for further directions, and the only question was, whether Henry, the son, ought to be considered as having any vested portion under the marriage articles, he having died in the lifetime of the father ; and, consequently, whether the defendant, Elizabeth, under the will of Henry, the son, and George, the father, was entitled to claim such portion ; and whether i?1500 or £\ 200 should be raised upon the estate. ♦ ~ The Attorney-General, and Mr. Wilbraham, for the plaintiff. CASES IN CHANCERY. 11 Nothing is more uncertain than the rules about vesting 1761. portions ; in the present case it is plain, from the words, r^T* that no portion was intended but for such younger children ». only as should be living at the death of the father; it is Rook*. a question merely of construction upon the deed, the inten- tion must be picked out from the words ; there was plainly no time when Henry, the deceased son, could say he was entitled to any thing, by reason of the power in the sur- vivor of the father and mother to fix the quantum of the portion of each younger child ; it is besides an unnatural claim in the father, to say he is entitled to his child's portion under his own marriage articles ; it has rather been a rule of this court not to favour any claim of por- tions not wanted as such, and therefore not to decree them as transmissible interests, unless they appear clearly to be vested rights. „ The Lord Chancellor here said, that he could not take notice of any thing that had happened subsequent to die articles, so as to vary the right as it stands upon the articles ; and that though there is some prejudice in a father's claim, yet that would be otherwise, though the right the same, in the case of children or creditors of the deceased son. The Solicitor-General, Mr. Sewell, Mr. Comyn, and Mr. Coxe, for the defendant. Though the strict letter seems strong to support what is contended for, yet it may be laid down as a general principle, that in marriage articles, which are to be carried into execution by this court, the intent of the parties is to be pursued, and that the words shall give way to the intent, and not die intent to the words. West v. Erissey, 2 P. W. 340. Com. Rep. 412. Uvedale v. Halfpenny, 2P. Wr.151. Now it cannot be doubted in the present case, but that it was the intent and meaning of the articles in question, that every child of the marriage should have a provision 12 CASES IN CHANCERY. 1761. under the articles ; and the late case of Cholmondeley v. jfo^L Meyrick (a), is a sufficient authority to shew, that the v, power of the father of apportioning the provision, shall Rook** not prevent the portion from vesting ; the case of Corbet v. Maidwelly 1 Salk. 159* does not clash with this, that case being upon a provision in the alternative. Earl of Salisbury v. Lambe (6). The court will presume such portions as may be useful. If they could not be raised during the life of the father, yet being vested, the future certain interest might ad- vance a daughter in marriage, or give credit to a son, and would therefore answer an immediate interest. Supposing the son had left children, it would be a most unnatural con- struction to say that nothing vested in the father which they could claim ; the court has never dealt so hardly with chil- dren as this. Attorney-General v. Sutton, 1 P. W. 754. But the words, " If the father should die, leaving younger children, to pay to such younger children then living," imply no more than that their portions should not be raised in the lifetime of the father ; and might be thrown in to prevent a sale of the reversion in the lifetime of the father ; and it does not imply the negative that the portions should not vest till the death of the father. Pit- Jiel^s case, 2 P. W. 513. And the present case is not like Brome v. Berkley (c), where the maintenance was not to commence till after the term came in possession, and the portion could not be said to precede the maintenance. The Lord Chancellor. This bill is brought by the plaintiff as eldest son of the carriage, and very properly, to have the settlement of 1734 set aside, and that the marriage articles of 1723 (a) Ante, Vol. I. p. 77- (*) Ante, Vol, I. p. 465. (c) 2 P. tV. 484. CASES IN CHANCERY. 13 may be carried into execution under the decree of the 176L court, and this has already been determined in favour of n^T' the plaintiff; but on behalf of the father it has been in- v. sisted, that as he stood in the place of Henry 9 one of the Roora. sons, who died in the lifetime of the father, and he having made a will, and appointed the father executor, that what passed to the father by that will became transmissible, and passed by the will of the father to the defendant, Elizabeth ; and upon this an inquiry was sent to the Master, whether Henry, the son, had attained the age of twenty-one before his death ; whether he died without issue ; and whether he made any and what will. And the Master has reported that this Henry, the son, lived to attain his age of twenty-one years ; and that after- wards, in September, 1756, he died unmarried and with* out issue ; and that before his death he made his will, dated 25th January, 1756, whereby he bequeathed all his goods and chattels to his father, and appointed him his executor. And upon this report, the question that materially concerns the parties is, how the court shall de- clare the trusts for the portions of the younger children pursuant to the articles. It has been contended for the father, in Order to make the argument operate against him, that he had a total control over the portions, to appoint them amongst the younger children as he should think fit, and therefore that nothing vested in them ; and that there was no time when any younger child, could say what he was entitled to by the articles, and therefore nothing vested. All parties, however, concur in this, that the intention of the articles was to provide portions for the younger children : it would therefore be to tie up the vesting to say that all depended upon the death of the father. I think it the strongest case I ever saw in my life, to say, upon the foot of the intention, that the portions were vested. 14 "^ CASES IN CHANCERY. 17^1* It is a principle strongly recognized in this court, that tT^ marriage articles are to be carried into execution by men v . of skill, according to the intention of the parties, and not *t°° KB * fitom misapprehended terms and expressions used by the parties ; and it is most reasonable to say, that when a trust is to be modelled and executed by this court, it - should be done according to what appears to have been the original intention : and the cases which have been mentioned to this purpose are strongly in point, and so was the late case of Bagshaw v. Spencer (a). It is plain that the settlement was to be a provision for the wife and children, which manifestly indicates an intention that the portions should be vested interests ; and it seems to me inconsistent with true grammar, common sense, and sound learning, and the jus et norma loquendi, to give a construction to these articles that would tie up the vesting of the portions to the death of the father ; and it seems to be nothing but the prejudice against a father's claim that has made this question. No convey- ancer could have thought of making a settlement pursuant to these articles, without considering the portions intended as vested interests. The word portion makes the younger children purchasers as much as the eldest son. Declare, therefore, that provisions should be made, under the trust in question, for raising the £1500 with interest from the death of the father ; and that the share of Henry, the deceased son, was a vested interest, which now belongs to the defendant, Elizabeth ; and let k be referred back to the Master to see the settlement prepared accordingly (b). (a) 2 Atk. 570. 1 Fes. 142. 1 Coll. Jurid. 378. (b) Vide Cholmondeley v. Meyrkh, ante, Vol. I. p. 77> and the cases cited in the note. CASES IN CHANCERY. 15 1761. 17th, 18th, & RUMBOLL v. RUMBOLL. "VS^ Cit. 9 Cox. 96. (Reg. Lib. b. I76O./0/. 262.) Amb. MSS. A orakt was made, bearing date the 12th of Decern- Where a father her, 1715, of a copyhold estate, held of the manor of ^j B.°were «u> Wootton-Bassett, for three lives successively; via. Chattel cesriye lives in a copyhold, where, Rumboll, and his two sons, Jasper and Charles. By the by the custom, custom of the manor the person first named in the copy the person first * Y named might dis- may dispose of the whole interest Charles Rumboll, the pose of thewhole father, paid the fine, and was admitted to the estate. On "^f^l fH. . \ upon tne mar- the marriage of the son, Jasper 9 with the defendant, Mary, nage of A. it was Charles Rumboll, the father, settled a freehold estate fSh» should on him and the issue of the marriage, and also gave him have power to JP400: in consideration of which, Jasper, and the de- theWeofif.and fendant Mary, his intended wife, entered into a bond, the widowhood M of his intended dated the 28th of November, 1729> in the penalty of wife; the father ilOOO, reciting that Charles Rumboll, the frther, was a*™* ■*»" . ' ° . . wards obtained a entitled to the copyhold premises for his own life and the new grant for the life of Jasper, and had made a settlement of freehold on j^^ a ^J" their marriage ; in consideration whereof Jasper had B-, by a will agreed that such person and persons should hold the ^^ f c. in copyhold premises during his life, and the widowhood of which no men- Mary, as the father should by writing or will appoint ; the copyhold, and conditioned to permit such person and persons to V*** "* e re »* ie enjoy the copyhold premises accordingly. estate to B. : The father, being about to marry again, surrendered hd | ^ hat b A *" the premises, and on the 7th of May, 1731, received a titled tothecopy- new grant for three lives, viz. Thomas, his youngest son, who was first named, Jasper, and Charles, the second and third lives. Charles Rumboll, the fiither, was admitted, 14 " r ^3 CASES IN CHANCERY. 1761* It is a principle strongly recognized in this court, that ^T*^ marriage articles are to be carried into execution by men v . of skill, according to the intention of the parties, and not Rookb. fitom misapprehended terms and expressions used by the parties ; and it is most reasonable to say, that when a trust is to be modelled and executed by this court, it should be done according to what appears to have been the original intention : and the cases which have been mentioned to this purpose are strongly in point, and so was the late case of Bagshaw v. Spencer (a). It is plain that the settlement was to be a provision for the wife and children, which manifestly indicates an intention that the portions should be vested interests ; and it seems to me inconsistent with true grammar, common sense, and sound learning, and the jus et norma loquendi, to give a construction to these articles that would tie up the vesting of the portions to the death of the father ; and it seems to be nothing but the prejudice against a father's claim that has made this question. No convey- ancer could have thought of making a settlement pursuant to these articles, without considering the portions intended as vested interests. The word portion makes the younger children purchasers as much as the eldest son. Declare, therefore, that provisions should be made, under the trust in question, for raising the i?1500 with interest from the death of the father ; and that the share of Henry ) the deceased son, was a vested interest, which now belongs to the defendant, Elizabeth ; and let it be referred back to the Master to see the settlement prepared accordingly (b). (a) 2 Atk. 570. 1 Fes. 142. 1 Coll. Jurid. 378. (6) Vide Cholmondeley v. Meyrick, ante, Vol. I. p. 77> and the cases cited in the note. CASES IN CHANCERY. 15 1761. 17th, 18th, & RUMBOLL t>. RUMBOLL. "VS^ Cit. 9 Cox. 96. {Reg. Lib. b. 1760. fol. 262.) Amb. MSS. AftRAKT was made, bearing date the 12th of Decern- Where a father her, 1715, of a copyhold estate, held of the manor of ^4 s. were su<> Wootton-Bassett, for three lives successively; viz. Charles cessiye lives in a copyhold, where, Rumboll, and his two sons, Jasper and Charles. By the by the custom, custom of the manor the person first named in the copy the person first * IV named might dis- may dispose of the whole interest. Charles Rumboll, the pose of the whole father, paid the fine, and was admitted to the estate. On ^^H ^* ' * 7 x upon tne mar* the marriage of the son, Jasper, with the defendant, Mary, nage of A. it was Charles Rumboll, the father, settled a freehold estate f§h» should on him and the issue of the marriage, and also gave him have power to JP400: in consideration of which, Jasper, and the de- theuTeofif.and fendant Mary, his intended wife, entered into a bond, *£\^ owh ??jJ dated the 28th of November, 1729, in the penalty of wife- the father «£1000, reciting that Charles Rumboll, the father, was t*™* *£*' . . , , , . wards obtained a entitled to the copyhold premises for his own life and the new grant for the life of Jasper, and had made a settlement of freehold on ^^^.^d their marriage ; in consideration whereof Jasper had B^ by a will agreed that such person and persons should hold the JJU^ of Cm £ copyhold premises during his life, and the widowhood of which no men- Mary, as the father should by writing or will appoint ; the copyhold, and conditioned to permit such person and persons to &J**. "* e re » due of his personal enjoy the copyhold premises accordingly. estate to B. : The father, being about to marry again, surrendered he i d !u hat b A w " the premises, and on the 7 4000 in satisfaction 1761. of a settlement, that is as far as he could, by offering tP^ something conditional to them in lieu of their provision «. under the settlement. He has given this as a portion eo Bydb. nomine, which they might, it is true, have rejected, and claimed under the settlement But, in fact, the provision under the will was more beneficial, for that was present, [ 23 ] and with interest in the mean time, until coming of age, by way of maintenance ; whereas that under the settlement was future, and uncertain when it was to happen, being not raiseable till after the mother's death (who was young), and no interest in the mean time ; and this was still more forcible in the present case, because the children had ac- cepted the portion under the will upon coming of age. The Lord Chancellor. The bill is brought by the plaintiff to have her share of portions, which were to be raised under the deed of settlement of the 3d of July 1699, and her claim is founded on this : that the father meant to give the child- ren, of the second marriage portions, by his will, beyond and independent of what they might be entitled to under the settlement. There are two objections to their claim ; the first is that of having a double portion ; the second, which, I think, is very material, is, that they accepted the portions given under the will. The plaintiffs have anticipated the first objection, by > endeavouring to distinguish the present from the case of • a double portion. They say, that a double portion must first be a legacy equal to the portion : secondly, equally beneficial : and thirdly, ejusdem naturce, and certain : and it is true, that where the question arises upon a simple devise of a legacy of a sum to a child, without intimation of the amount and intended application of it, these are established rules ; but I think they do not apply to the S3 CASES IN CHANCERY. 1761- present, nor to any case wherein the intent of the testator Bydb is manifest (as I think it is here), and expressly declared v , in his will. For it is an everlasting maxim of law and Byde. equity, that every man may impose what terms he pleases on his gifts and legacies ; therefore the question is pri- marily, what is the testator's intent P [ 24 ] The case, in short, is no more than this : R. S. Byde settled lands on himself for life ; remainder to his wife for life ; remainder to trustees, and their heirs, in trust, after the death of the wife, to convey to /. Byde, his son and heir by a former wife, upon his paying £5000 ; and if he refuged or neglected to purchase the same, then to sell for the most money, and distribute the same equally amongst the children of the second marriage for their provisions and maintenance, in case the father and mother had made no joint appointment in their lives. After this, without taking any notice of the settlement by his will, he gives i?4000 to such children, ,£1000 to each of them as his and her portion. It is insisted that I must construe this expression, not according to the entire idea which the word obviously conveys, and the grammatical sense of it, but that I must take it as additional, as a further portion, or part of por- tion. Now, with the utmost attention I have been able to give, I think I should do violence to the will if I were to put so narrow a construction upon the words. The whole "collocation" (as the grammarians call it) of the sentence indicates, that the testator meant to express one entire thing, viz. a portion, or full portion. The ex- pression' is perfectly and fitly adapted to a single idea : and as he knew there was a provision under the settle- ment, he rould never express himself in words so entire in their meaning, if he had intended to give an additional . portion. This seems to me an insurmountable reason, arising from the context of the will, to take it according CASES IN CHANCERY. 34 to the express sense of the words; and that his intention 1761. was, they should have their option to take it in lieu of the pf^^ provision under the settlement. v . Why then, if this was his intent, the objections taken Bym. and arising from the inequality, from the sums hot being equally beneficial or certain* are not for me to determine, for they have been determined already by the best judges, [ 26 1 viz. by the parties themselves. For then the legacy is conditional, and the party accepting must be bound by his acceptance (a). If a man gives a curiosity of art, or a natural produc- tion, by way of satisfaction of a debt, or a portion, and the legatee accept it, though. the value be less than the v debt, there could be no ground for equity to interpose ; for 8o # equity would control the natural power of one party to give, and the other to accept what is offered. All the cases where the testator's meaning is not plain, are not applicable to the present. I am clear the testator's was disjunctive, and that he had not particularly in view either the i?4000 or £5000, but meant to each child an election to accept or refuse such share or legacy under the will (6). Bill dismissed. (a) As to acceptance of 427- Copley v. Copley, 1 P. conditional legacy, vide Vol. I. W. 147. Brown v. Peck, ante, p. 489. Vol. I. 140. Williams v. (6) For the doctrine upon Duke of Bolton, 1 Dick, 405. the subject of presumption Warren v. Warren, 1 Bro. C. against double portions, whe- C. 309, and the editor's note ther in the case of Satisfac- to it. Jeacock v. Falconer, ib. turn by will of a portion pre- 294. Grave v. Earl qf Salts- viously secured by settlement, bury, ib. 425. Holmes v. or of Ademption of a legacy by Holmes, ib. 555. Debeze v. . subsequent advancement, vide Mann, 2 Bro. C. C. 165. Bellasis v. Vthmaite, 1 Atk. Ellison v. Cookson, ib. 307, 20 CASES IN CHANCERY. 1761. Btdb V. Btde. and 3 Bro. C C. 61 . Hanbury v. Hanbury, 2 Bro. C. C. 352. 529. Powell v. Cleaver, ib. 500. Baugh v. Walker, 3 Bro. C. C. 183. Hinchcliffe v. Hinchcliffe, 3 P«. 516. Sparks v. Cator, ib. 530. Freemantle v. Banket, 5 Fe*. 79. Trimmer v.Bayne,TVes. 506. Trvisden v. Twisden, 9 F« . 413. Robinson v. W&t*- fey, to. 577- Bengougk v. JP 200 per annum for the maintenance of the daughters. The Attorney-General, the Solicitor-General, Mr. Wilbraham, Mr. Coxe, and Mr. Barnard, for the plain- tiff, cited Gerrard v. Gerrard, 2 Vern. 458. Corbet v. Maidwell, ife. 665. Brewen v, Bremen, Prec. Can. 596* Harvey v. Harvey, 2 P. W 21. Pit/lekTs case, CASES IN CHANCERY; 28 %b. 513. Butler v. Buncombe, 1 P. FT. 448. Stent- 1761. forth v. Staniforth, 2 Fern. 460. Saville v. Saville, Vmn* y *SW. Ca. in Ch. 33. Hebblethwaite v. Cartwright (a). *. Jdauw v. Norwood (b). GreenhiU v. FFa/do*, Prec. Earl Vbjinb¥. Can. 367* Cholmondeley v. Meyrick (c). Mr. Sewell, Mr. Perrott 9 Mr. cfe Grey, and Mr. JFed- derburne, for the defendants. TAe Lord Chancellor. The principal question is now, as to the raising the maintenance and portion of <£ > 20,000. This question has been agitated by the counsel in the interest of the plaintiff, as one in which the words of the settlement bore against the plaintiff's claims. In arguing that question, several matters have been strongly enforced by the counsel which are not proper for me to consider ; as first, the large estates of the defendant, which I hope and believe to be as large as suggested ; but as nothing relative to them has been proved, there is not a grain of consideration for me to affect him with this demand*. Secondly, the necessitous case of the lady (which I am glad to find is not so bad) is as little fit for my considera- tion, because the rich and poor are equally entitled to the equity of this court; these are considerations that a court of justice ought not to entertain. Another head which has been relied on, is, I think, as [ 29 } little within my province to determine ; that is, the ge- neral fitness and propriety of a settlement which persons execute when they enter into the marriage state ; for my business in this, and every other case, is, jus dicere, non jus dare ; and I am glad it is not my province to chalk out the propriety of settlements, and to measure and ex-, plain the contract according to my own ideas, because, (a) For. 30. (b) Cit. ante, Vol. I. p. 51. .(c) Ante, Vol. I. p. r 77- . . ; ■ : 89 CASES IN CHANCERY, 1761* perhaps, I might do it in an unfashionable manner. Not' Verney *&*& I adopt the notions of conveyancers at their cham- v. bers, and explain every contract of marriage upon princi- Barl Vbrnby. pj^ t jj at were never thought of by the parties, as if every consideration of affection was out of the case on that so- lemn occasion. The question for me to decide upon this settlement is merely, what agreement was actually made ; what power is in the trustees ; what was the intent ; and, on proper applications, to give execution to the trusts they have created ; therefore, in the present case, if I can see what the intent was as to the creation of the 500 years' term, that must be the direction I must take ; and I am not to take a liberty to model trusts according to my discretion. If, indeed, it appears that the intent is doubtful, there it may be proper to follow the determinations in similar cases. Now, on the best consideration, I cannot have a doubt of the intent of the parties with respect to the present question at the time of making the settlement. It was candidly admitted by Mr. Wilbraham, that it was im- possible to treat it as a case where the parties come to have a mistake rectified. The point on which the question arises is reiterated from the beginning to the end of the settlement in every clause. The state of the parties entering into this settlement is a circumstance proper to be considered ; and as it is fixed, [ 30 ] the court cannot be deceived in it. This settlement was made in 1736 by Lord Fermanagh on the marriage of his eldest son, Mr. Verney ; and the present earl was his second son. Mr. Verney marries a lady of family, with a large present fortune, and some in contingency. Lord Fermanagh on this occasion makes a settlement ; his first contemplation was to provide for the husband to maintain his wife ; then to provide for dons, with remainder to first CASES IN CHANCERY, 30 and other sons ; then for the wife, if she should survive, 1761. to have an annuity of ,£1600 a year out of an estate of Vmmxt «£2000 a year by way of jointure ; and there is a term v . created to cover the whole estate, and to be made use of ^^ Vrawnr. by sale, mortgage, or any other manner, to secure the i?1600 a year; then a limitation to first and other sons in tail ; then a 500 years' term to raise portions for daugh- ters if there be no sons, or if they die before twenty-one. The direction of that trust is as follows. , [Here his Lord- ship stated the trusts of the term particularly.] Now by this, the trustees are not to be called upon to act till after the death of the survivor of the father and mother, and then to raise the <£20,000, and pay it at twenty-one, or marriage, which shall first happen after the death of the survivor, and failure of issue male. Now one should think, if it rested on these clauses, that it was impossible to doubt what was the intent of the parties ; that the daughter was to have this portion only after the death of the survivor, though it was payable at twenty- one, or marriage ; and it being repeated that it was to be after the death of the survivor, it could not be dreamt that it should be raised before it was payable, in the life of the survivor. It is impossible for any court to take a liberty on such an agreement to say, that notwithstand- ing a time is mentioned when it is to be raised, when the trust is to be made use of, and when it is to be paid to the person receiving it ; the court can order the trustees to execute the trust at a different time than that which [ 31 ] the creator of that trust has appointed. But for fear of a mistake, for fear that courts should be induced to go extraordinary lengths in raising portions by anticipation, and thereby mangling the family estate, " it has subjoined a provision which prevents the court from executing any liberty of anticipation : for it provides, if any daughter attain twenty-one, or be married during 31 CASES IN CHANCERY. 1761.' the joint lives of the father and mother, or in the life of y the survivor, which is the case which has now happened, v. that the portion of such daughter shall be paid within Earl Vebney. one ye^ nex t nf^j. $h e decease of the survivor. . This clause, therefore, puts the case of a daughter's attaining the time that the plaintiffs counsel insist upon to be the time of vesting, and supposes that time to happen, and then subjoins a bar to the giving it them by anticipation. Now on this part of the question the plaintiffs counsel have grounded their demand, that this was the time fixed for payment ; that it vested at that period, and so must be raised, there being no negative words to the contrary. Now in pursuance of the principles and reasons on which the cases are determined that have been cited with regard to the vesting of portions, it is impossible for me, under these circumstances, unless I should be of opinion it should now be raised, to give an opinion on that point. Upon the principles" of a former case (a) which I have determined, and which has been acquiesced in, I have laid it down as a general rule, that where there is nothing to the contrary, where the parties have fixed upon a time for the payment of a portion, that time is the time of vesting, and is the time from which the portion becomes transmissible ; and it is determined on a simple principle, which appears unanswerable, that when a settlement says, [ 33 ] as here, that the daughters shall have such a portion, payable at marriage, or twenty-one, which shall first happen, the parties mean to do this ; they mean to define the time when the daughters wanted the portion ; they name twenty-one, when the daughter, by law, is capable of managing it ; or marriage, when she requires it for ad- vancement ; and if the portion is raiseable out of a re- versionary term, where it cannot be raised by anticipa- (a) , ChoUnondeley v. Meyrick, ante, Vol. I. p. 77* CASES IN CHANCERY. 32 lion, the parties mean by the time twenty-one, or mar- 1761. riage, if there is a fund ; but if there be no fund, it does Vmney not postpone the time, but is postponed for want of a v. fund. Every subsequent clause says, if they attain in Earl Vkrnbt. the life of the father and mother, or survivor, that it shall be paid in a year after ; therefore, with respect to vesting, it is distinct from the payment, so no opinion on it. As to the point of raising the portion, I think, in all the cases cited, the determinations were right upon the circumstances. I think Lord TcUbofs determination in Hebblethwaite v. Cartwright (a) was right on the case before him ; there he said, " though the mortgage or sale is to be during the term, which is not to commence in possession till the father's death, yet the portions may well be raised in his lifetime ; it being nowhere said that the portions shall not be raised till after such time as the term shall take effect in possession. Indeed, had there been no express authority given to the trustees to sell or mortgage, there might be some difficulty; but since they have the power of both, they may use that which best suits the interest of the daughters." Here the trustees had an election to raise the portions by mort- gage, or receipt of rents ; and the subsequent clause says, you shall not sell or mortgage till the portions be- come payable : and out of the rents and profits, it cannot be received till after the death of the survivor. It is a [ 33 ] negative, and it is impossible for me, however much I should like it, to give this plaintiff a sum to go to market with. As to the maintenance, that is strong on the words against the plaintifTs case, because the declaration is, " that the trustees, after the decease of the survivor of the father and mother, and failure of issue male, shall (a) For. 30. vol. ii. n 3$ CASES IN CHANCERY. 1761. raise for maintenance £400 until such daughter or daugh- •J^^ tew shall attain fifteen; and £*JQO a year until their t>. portions should become payable by half yearly payments Earl Vbbnbt. a t Lady-day and Michaelmas, the first payment to be made on such of the days as should happen next after the decease of the survivor of the father and mother ;" it is therefore tied up to the decease of the survivor. It is re- presented to me, that a hardship is hereby created ; and it is said the plaintiff is entitled to have it vested and transmissible : that the mother brought a large fortune, and that the daughter has no maintenance from her fa- ther's estate. Now as to that, it plainly appears that ease was in the thoughts of the parties, and they have provided with regard to it ; whether they have done that wisely, it is not for me to say ; but as they have provided for this case, I cannot take a stride further, and say, you were not judges of the case, and I will come and distri- bute to your family in other proportions than those which the settlement directs : it is impossible for a court to as- sume such a power. It appears there was a covenant from Lord Fermanagh, during the joint lives of Lord Fermanagh and the plaintiff's grandfather, Nicholson, that as his daughter would be entitled to a further por- tion on his death, that Lord Fermanagh would contri- bute «f 200 a year in maintenance ; and this was on a no- tion, that, on the death of Nicholson, there would be an increase of fortune, so that plaintiff's mother would be eased, and Lord Fermanagh also; and that was the [ 34 } ground of their only providing for additional contribu- tions to the mother, and it appears they intended to leave this daughter on the mother. I cannot look upon these as a set of conveyancers do, where nothing is to be considered but a quid pro quo, and buying an annuity at market, without looking to the situation of families. The <£*2000 a year is near covered CASES IN CHANCERY. 34 with the i?1600 a year; there is a provision all along, 1761. and a supposition that here was always to be a surplus to v^^ the remainder-man to marry again, and <£200 allowed v . by Lord Fermanagh for maintenance till Nicholson?* Earl Vbbnbt. death, .£1600 a year for the wife. I think it hard' that I cannot raise this £20,000 ; but the parties have agreed it, and there is no case which au- thorizes me to do it. In my opinion, this fortune ought to have been to be raised at all events ; for though I cannot give any judgment upon it, I am clearly of opinion that it actually vested at twenty-one, therefore as to this point the bill must be dismissed (a). (a) Vide the editor's note ante, Vol. 1. 77* and to Conway to Chdmondeley v. Meyrick, v. Conway, 3 Bro. C C. 271. C*36] 9th & loth SIMPSON v. PAUL. SlSSS? s c (Reg. Lib. b. 1760, fol. 462.) Cose, MSS. v s J 8erjt.fli«r«MSS. By articles of agreement bearing date the 2d of Where there wa* January, 1717, m«fe previous to the marriage of Dr. Jjg^J^ George Paul with Susanna Afalyn, a fund of £1 0,000 of Appointing a was created for the issue of the marriage ; and it was JJJJJ^ ^1%^ agreed that if there should be two or more children, and with power in „ , ,., , i_ u i_ default thereof! one or more of such children should be a son or sons, f or ^ e 8urv j yor then that ^4000, part of the said ,£10,000, should be to appoint ; a paid to such eldest son, and the remaining i?6000 should by both of the # be divided between such eldest son and such other child original power, . was held to pre- or children, in such shares and proportions, as the said vent the execu- George Paul, and the said Susanna, during their joint ^^L^J^, lives, or in default thereof the survivor of them, should, by the wife, who by any writing or writings under their hands, or the n2 35 CASES IN CHANCERY. Simpson v. Paul. 1761. hand of the survivor of them, attested by two or more credible witnesses, direct or appoint; but in default of such appointment, the said «£ > 6000 was to be equally divided between such eldest son and such other child or children, or the survivor of them, part or share alike, unless the said George Paul and the said Susanna, in their lifetime, or the survivor of them, by writing, sub- scribed and attested as aforesaid, should otherwise divide and apportion the same. There was issue of the marriage one son, the defend- ant, George Paul, and two daughters, Valentina, after- wards the wife of Robert Snow, and the defendant, Su- sanna Paul. Upon the marriage of the said Robert Snow with the said Valentina, Dr. Paul and Susanna his wife, by deed- poll, bearing date the 30th March % 174*3, appointed, that £ 2000, part of the money in the said marriage articles, after the decease of the said George Paul and Susanna his wife, should belong to the said Valentina as her share of the sum ; and the said Valentina and Robert Snow, her intended husband, released all claim, &c. Dr. Paul by his will, bearing date the 4th of October, 1752, desired the said Susanna Paul to be very kind to her two daughters, Valentina Snow and Susanna Paul; and taking notice that his eldest daughter had been advanced in marriage, requested his said wife, Susanna Paul, to give her, his said daughter Susanna, so much money as would, together with what she was entitled to at that time, amount to the sum of £5000, upon her day of marriage. f 36 1 ^ rs * P au h by deed poll, bearing date the 26th of March, 17^5, appointed, that the sum of i?4000 which remained, subject to her appointment, should belong and be paid unto the said George Paul, the son, and her said two daughters, as follows : £BO0, part thereof, unto her CASES IN CHANCERY. 36 son, George Paul; £VJ50, other part thereof, to the said Valetitina Snow ; and i?l750, the remaining part thereof, unto her daughter, Susanna Paul. This was a bill brought by Mrs. PauVz executors, upon which several questions had arisen, and a trial had been directed at law upon another point ; the cause now came on upon the equity reserved, and the principal question remaining was, as to the validity of the appointment by Mrs. Paul of the 26th of March, 1755. The Attorney-General, the Solicitor-General, and Mr. SeweU, for the defendant, George Paul. Mr. Perrott, Mr. WUbraham, and Mr. Jones, for the defendants, Snow and Susanna Paul, contended, that the fund was divisible among the children in any propor- tions, according to the discretion of both parents. That the time when these sort of powers are executed is imma- terial, it may be done per vices, Digges's case, 1 Co. 193. So powers of jointuring may be executed at different times, provided the limits of the power are not executed. Her- vey v. Hervey (a). Though the appointment to Mrs. Snow was said to be as her share, yet that must only be understood as meaning her then share. 1761. Simpson v. Paul. The Lord Chancellor. The question for my determination is, whether, under -the circumstances of this case, the second appointment, made by Mrs. Paul alone after her husband's death, be good or not ; and that must depend on what was the rea- son and intent of the parties creating the power, as there appears to have been no judicial determination in similar cases, viz. whether, after a partial execution by baron and .feme of an original power, a secondary power to arise in (a) 1 Atk. 561. Barnard, 103. et vide Zouch v. WooUUm y Burr. 1136. Bl. Rep. 281. [37] 37 CASES IN CHANCERY. 1761. Simpson v. Paul. [38] default of the execution of the original power, can have any effect ; and after the best consideration I have been able to give this question, I am of opinion that a partial execution of an original power like the present, respecting the appointment of portions amongst children, will pre- vent the secondary power given to the survivor from taking effect. My reason is, as the father, who had the natural right of allotting portions to his children, has thought fit to let in his wife for a part in such allotment, and in case of a default of appointment by them jointly, has empowered the survivor to allot ; that they having taken up the exe- cution of the joint power in part, have hereby brought tato life that power, on the deadness of which the other was to arise ; and, in this particular case, I am inclined to think Dr. Paul considered it so. Not that he meant to bind himself by this partial execution so as to prevent a further joint execution, if his children should require it : for these sort of powers may be executed in part at one time, and part at another, as the exigencies of the family may require ; and this may be repeated at different times by the father and mother, till the whole trust money is appointed among the children. Digged* case, 1 Co. 173. But that he considered it as the whole of Valentino's fortune, appears by the expressions made use of, which is, not her party but her share, which shews he con- sidered himself as executing his power of allotting the shares amongst his children ; and if no future allotment was made by him, that the <£6000 should be shared equally amongst his three children. This is confirmed by the expression in his will, whereby he directs his wife to make up Valentino's fortune, with what she is entitled to, i?5000 in the whole, out of his personal estate. The word entitled shews he considered her share as fixed, for if it depended on a subsequent CASES IN CHANCERY. 88 allotment by his wife, the expression is improper. His family were grown up, and it is reasonable to suppose that he considered them entitled to this i?6000 in equal proportions ; and, I think, it would be dangerous to say, when a father, on the proposal of a daughter's mar- riage, sees it necessary to exercise his power, by allotting her her fortune or share, without going further, as to his other children, till a like occasion calls for it ; that he thereby leaves the remainder to be partially distributed by his widow. It is unfavourable and unreasonable to suppose he intended it ; and it is derogatory to the dig- nity of the marriage state to allow the wife to control the intent of her husband relating to a provision for his children. I am therefore of opinion, that as the first power was in part executed by Dr. Paul, the secondary power to Mrs. Paul, as the survivor, in default of a joint appoint- ment, did not arise. If it had been so intended, it might have easily been so expressed ; in default of appointment of all or any part, then as to what remained unappointed, to be subject to the power of the survivor ; but that not being the case here, the appointment by Mrs. Paul is void, and the i?4000 must be divided in equal moieties between the son and his sister Susanna. 1761. Simpson Paul. In the case of Brown v. Nis- bett, I Cox, 13, Lord Hard- wicke was also of opinion that where husband and wife had jointly appointed any sum, part of what they had the power of appointing to, the survivor could not add to, or alter it. Mr. Sugden doubts these cases, observing, that the power of the survivor, ac- cording to general opinion, extends over the whole of the fund which remains unap- pointed ; just as the joint ap- pointment did not prevent a further joint appointment. Pow. 282. See the editor's 38 CASES IN CHANCERY. 1761. Simpson v. Paul. note to Mac Adam v. Logan, 3 Bro. C. C. 310., where a power to the survivor of hus- band and wife, was held not well executed by an appoint- ment by both : also Ingram v* Ingram, 2 Atk. 88. Hamilton v. Royse, 2 Sch. & Lef. 315. Doe v. Milborn, 2 T. 72. 721. [39] 27th, 98th & 29th Feb. 1760. 3d, 4th, 6th & 7th Feb. & 1st June, 1761. S.C. Amb. MSS. SeweU, MSS. /$ fa. fit- tr> URY v. DRURY. (Reg. Lib. a. 1760. fol. 465.) Determinations of the Lord Chancellor, 1st By indenture bearing date the 5th of October ', 1737> and made between Sir Thomas Drury, then Thomas of«7 l!rf s* WW*! 1>rur y> esquire, °f the first part ; the defendant, then introduced join- Martha Tyrell, spinster, one of the daughters of Sir to adu*f women ^°^ n Tyrell, baronet, deceased, of the second part ; and only, infants not Joseph Townsend and Thomas Mathews, esquires, of SSffS 1 ^ the tWrd P"* i "ft** "^g * ™>™S* then intended therefore that, between the said Sir Thomas Drury, and the defendant, notwithstanding « «■ 1 * 1 11 ^ • 1 ,-,• ™, a jointure on an lfc was declared and agreed that the said Sir Thomas infant, she may Zfrury should be entitled to, and receive all the personal waive the join- , «. 1 - ^ 1 1 /» 1 1 * ture, and elect to estate and effects which the defendant was possessed of, take dower. 2dly, or ent i t i e( j to f or h; s own use an( j benefit ; and that all That a covenant ' by the husband the lands, tenements, and hereditaments, then late of eiwSoirS'ad- the said Sir John Tyrell, deceased, which should de- ministrators, scend to or devolve upon the defendant during the in- Ah nil n&y the wife an annuity for tended coverture, should be settled and assured in manner herlifeinfullfor thereinafter mentioned; and also that the defendant, in in bar of dower, case she should survive, the said Sir Thomas Drury, without express- should have or enjoy an annuity or yearly sum of «£600, he charged on any particular lands, or be secured out of lands generally, is not a good equitable jointure within the statute. 3dly, That a woman, being an infant, cannot, by any contract previous to her marriage, bar herself of a distributive share of her hus- band's personalty in case of his dying intestate : reversed on appeal by the House of Lords. CASES IN CHANCERY. 39 -cleaf of all taxes and deductions whatsoever, during her life, for and in the name of her jointure, and that the same should be taken and accepted by her in full satis- faction and bar of all dower or thirds of, in, to, or out of, any lands, tenements, or hereditaments whatsoever, whereof or wherein the said Sir Thomas Drury then was, or at any time thereafter, during the intended coverture, should be seised of any estate of inheritance, and also in lieu and full satisfaction of any share or distributory part of any personal estate which the said Sir Thomas Drury should be possessed of or entitled to, and which she could or might claim or demand by virtue of the statute for the distribution of intestate's estates, or otherwise howsoever. And the said Sir. Thomas Drury, in consideration of the said intended marriage, and of the. portion which the de- fendant was possessed of, or entitled to, and which would accrue to him in case the said marriage should take effect, did, for himself, his heirs, executors, and administrators, covenant and agree to and with thesaidc/wepA Townsend and Thomas Mathews, their executors and administra- tors, that the heirs, executors, or administrators of him, the said Sir Thomas Drury, in case the defendant should survive him, should pay her, during her life, the yearly sum of i?600, without any abatement whatsoever, half- yearly ; and also that in case any lands, tenements, and hereditaments of the said Sir John Tyrell, deceased, should in anywise descend, remain, accrue, or come to the defendant during her said coverture, then the said Sir Thomas Drury and the defendant should and would im- mediately thereupon convey, settle, and assure all such lands, tenements, and hereditaments, to the uses after mentioned; that is to say, to the use of the said Sir Thomas Drury during his life, and afterwards to the use of the defendant and her assigns during her life, and 176U Drurjt v. Drury. [40] 40 CASES IN CHANCERY. 1761. Dbort 0. Dburt. [41] after her death to the use of the said Sir Thomas Drury and his heirs and assigns for ever. The deed was executed by the defendant in the pre- sence of Mrs. Elizabeth KeUaway, her guardian, who was also a subscribing witness. The defendant was en- titled to a portion not exceeding i?2000 ; she was then an infant, being a month under' the age of twenty-one. On the 20th of January, 1750, Sir Thomas Drury died intestate, being seised in fee of an estate and mansion- house at Overstone, in the comity of Northampton, of the yearly value of about .£2600, and of a personal estate amounting to above £ 60,000. He left the defendant, his widow and the plaintiffs, Mary Ann and Jocosa Co- tharina, his only children and co-heiresses at law. The defendant, Lady Drury, having taken out letters of administration, and possessed herself of the personal estate, the present bill was filed by the daughters for an account of the rents and profits of the real estate, and of the personal estate, &c. Lady Drury, by her answer, insisted, that as she was an infant when she executed the said indenture of settle- ment, and at the time of the marriage, she could not, nor ought to be barred by the said indenture, but was at liberty to make her election whether she would accept the said annuity or waive the same, and take her dower out of the real estate, and her distributive share of the personal estate. The cause was twice argued: first on the 27th, 28th and 29th of February, 1760, by the Solicitor-General, Mr. WUbraham, and Mr. Browning, for the plaintiffs ; and the Attorney-General, Mr. Hoskins, and Mr. Comyn, for the defendant; and secondly, on the 3d, 4th, 6th and 7th of February, 1761, by the Solicitor- General, Mr. Perrot, Mr. WUbraham, and Mr. Stain** CASfes IN CHANCERY. 41 by> for the plaintiffs; and the Attorney-General, and 1761- Mr. Sewell, and Mr. Hoskins, for the defendant vT^ v. For the plaintiffs. Druby. Two general questions arise upon the present case ; 1st Whether a feme infant can bar her right to dower by an agreement before marriage? and 2dly. Whether such agreement can bar her of her share of the personal estate of her husband under the statute of distribution ? 1st. The common law considered dower as a reasonable [ *2 ] provision for the wife out of the real estate of the hus- band, and totally distinct from her own inheritance. Lord Coke defines it bo from Bracton, propter onus ma- trimonii, &c. Co. Litt. 30. 6, ascertained by a writ of dower complete by the husband's death, inchoate upon marriage. Dower, ad ostium ecdesuje, was a provision made by the husband of age after marriage. Dower, em assensu patris, might be by an infant husband. Bract. Lib. 2. c. 39. But in both these cases the wife might refuse, and elect dower at common law : her power, how- ever, arose not from her infancy, but the coverture. In- * fancy could not be regarded, because since infants might enter into the principal contract, marriage, it was thought consequential that they might bind themselves in every thing attendant thereon. This right to dower being a freehold interest, no pro- vision could bar it by way of collateral satisfaction. Ver- norts case, 4 Rep. For she could not give a release be- fore marriage, as she had then no title to dower, and she could not be compelled to levy a fine after marriage: hence great inconveniences were found to arise. It was thought unreasonable that where a person of very large estate married a young woman of little or no fortune, she should be at all events entitled to one third of it % To remedy this inconvenience was one reason rf Ae 42 CASES IN CHANCERY. Drury V. .Dauby. 1701* invention of uses ; and as the wife was not dowable of lands in use, the husband frequently procured an estate to him and his wife, &c. for a competent provision for her after the husband's death ; but if, after the jointure made, .the husband became seised of new lands, she became en- titled to dower out of such new acquired lands also ; so .that there could be no fixed provision for the wife. When the statute of uses was made, which transferred the use into possession, if some particular provision had [ *3 ] not been inserted, the wife would have had both her join- ture and dower. The subsequent clauses were therefore inserted in the statute, to prevent those wives who had jointures already made from taking any further provision by way of dower; it therefore recites that "whereas divers persons have purchased, or have estate made or conveyed to them," the words not being confined to pur- chase, but extending to conveyances being made. In all cases where jointures are made, the subsequent marriage, .which at common law gave a title to dower, after the act .gave no such, title. It does not therefore arise from the consent -of the wife that the jointure takes away the right to dower, but having the jointure she does not gain any title to dower. The words of the act are so general that it gives no colour to the constructive exception of infants : " every .woman married, having jointure made, shall not claim .nor have title to any dower :" this includes infants. The statute was penned with the greatest accuracy, and after the most mature deliberation. If it had been intended .by the legislature that infants should have been omitted, it would have been so provided. The only case in which the wife might have been injured by the power and in- fluence of the husband, viz. in jointures after marriage, is expressly provided for by the act. This provision proves the rule of construction to be general, where not other- CASES IN CHANCERY. 43 ♦ vise provided for : the bar to dower is created and op- posed to married women, and the proviso only removes the bar at their election in one particular case, and in that only. A question must have arisen upon this act, whether a woman could refuse a jointure before marriage, within thirty-five years after it passed : for in the case of the Earl of Leicester v. Haydon, Plowd. 396 a. which occurred in the 13 Eliz. 9 Anderson, after mentioning the proviso in the statute, observed, that " forasmuch as it speaks of an assurance after marriage, it has been held, that if the assurance be made before marriage, she shall not re- fuse it ; for the judges took the intent of the makers of the act to be so by the implication of the words." The words of the fourth resolution in Vernon's case, are equally explicit and comprehensive ; that " if a jointure be made to a woman before marriage, after the husband's death the wife cannot waive it and take dower." And again in Co. Litt. 37 a. it is laid down equally generally, " if a jointure be made before marriage, the wife cannot waive it and claim dower at common law :" upon which passage Lord Hale, in the margin of his own Co. Litt. has added these words, " iicet ell soit deins age ne poet waive ut videtur."' In the construction of all statutes infants are bound, unless expressly excepted. The 1 Ric. 3. c. 1. enabling cestuy que use to make feoffments ; the 1 Ric. 3. c. *]. and 4 Hen. 7- c. 24. as to fines ; the 23 Hen. 8. and 21 Jac. 1. Statutes of Limitations, expressly except in- fants. The case of Stowell v. Zouch, Plowd. 353. is in point, that general words extend to infants. In penal acts they are even comprehended. It is objected from the statute of wills, that infants are comprehended in that act which uses the most general terms. That objection may be answered, first, that in- 1.761. Druby v. Druby. [ 44 } 44 CASES IN CHANCERY. 1761. fants are restrained by the express provisions of 34 Hen. 8; jT*** which shews that there was at least considerable doubt v. whether they were not comprehended. Secondly, That Drury. j t wou id have foeen absurd that infants should be enabled to that by will which they could not do by deed. Third- ly, That the statute of wills differs from the present, in- asmuch as it is an empowering statute, which the present is not : here the woman is not an actor. The cases of Price v. Seys (a), and Hervey v. Ash^ ley(b) 9 are authorities from the point; in the former, [ 45 J Lord Hardwicke said, that it was clear law that if a man married, and before marriage, in consideration of it and her portion, makes a jointure on his wife, though she was an infant she cannot waive her jointure ; and afterwards in Harvey v. Ashley, Sir Dudley Ryder , who was coun- sel for the infant, speaking of Price v. Seys 9 observed, that the dower being barred was no more than the effect of the statute of jointures, which makes all jointures of infants, as well as women of full age, a bar. Harvey v. Ashley was determined by Lord Hardwicke 9 after great deliberation, and from a written opinion. His Lordship thought that marriage agreements differed from all others ; that the principal consideration was the marriage : as soon as that was had, the contract had become executed, and could not be set aside ; for the children were purchasors, who acquire a right which cannot be defeated by the failure of either party. His Lordship added, that this court should be tender of breaking in upon marriage contracts. The law intrusts fathers and guardians with the marriage, therefore it must with the settlement : if they are guilty of a breach of trust, they must be charge- able. The opinion of conveyancers has been uniform, that [a) Bernard, Ch. Rep. 117* also a note of this case in (ft) 3 Atk. 607. There is Wilm. Op. &c. p. 219. n. CASES IN CHANCERY. 46 an infant feme might be bound by a jointure, who con- 1761* aider the dower aa sufficiently barred by a jointure, and But that it is unnecessary to inquire whether such jointure v. was made on an infant or an adult. In the course of the Dbuby. 225 years which have elapsed since the passing of the statute, no attempt has been made to overturn a jointure made before marriage on the ground of infancy ; the opinion has so far prevailed, that half the settlements in the kingdom would be overturned by a contrary decision. The Court of Chancery too, has, by its constant practice, sanctioned this construction of the statute, by directing, on the application for the marriage of an infant female ward of the court, that the Master should see a proper [ 46 ] settlement made. The court must certainly have always understood that such settlement was binding on both parties. The words in the present case will make a good equita- ble jointure ; for though it does not stipulate a jointure of freehold in lands, yet it stipulates an annuity for and in the name of her jointure. Lord Coke defines a join* ture to be a competent livelihood of freehold in lands for the life of the wife, to take effect presently, in possession or profit, upon the death of the husband. A court of equity would t h erefore perceive that this was an ample provision, stipulated before marriage, and accepted by the defendant : they are a specific lien upon the hus- band's lands. Wherever provisions have been made for married women, either out of trust estates, or out of the funds, or out of copyholds, equity has carried them into execution. Davila v. Davila, 2 Vem. 724. Vizard v. Lmgden (a). Jordan v. Savage, 2 Eq. Ab. 102 (fr). Every agreement may be carried into execution in a court of equity, and all cases that regard marriage agreements (a) See this case stated, and the observation upon it, post, p. 06. (4) See post, p. 66. 46 CASES IN CHANCERY. 1761. Dbury Dbuby. [47] have been universally protected. Strickland v. Coker 9 2 Ch. Ca. 211. Vernon v. Vernon, 2 P. W. 594. JLecA^ m«re v. Earl of Carlisle, 3 P. W. 211. TFa/fcer v. Walker (a). Goring v. iVa^ (6). 2dly. As to the right of the infant to bar her share of the personal estate of the husband. At common law, marriage was considered as an absolute gift to the husband of all the wife's personal chattels, and in case of the hus- band's surviving, of all her real chattels, Co. Litt. 151 a. and equity held that a chose in action, or a contingent interest in the wife, might be assigned by the husband, Duke of Chandos v. Talbot, 2 P. W. 6ffJ. To remedy this exorbitant power of the husband, equity supported all agreements previous to marriage as calculated to abridge it. Franklin v. Tkornbury, 1 Vern. 132. Blois v. Lady Hereford, 2 Vern. 502. Cannel v. Buckle, 2 P. TV. 242. And the argument in favour of this power is stronger than in respect of real estate, for even sup* posing that the husband could not prevent his infant wife from electing dower after his death out of his lands, yet it must be admitted that he could by will or otherwise have given his personal estate away at pleasure: her right to it arose as much from his intestacy as her mar- riage. Probably Sir Thomas Drury. omitted to make a will, relying upon the validity of the instrument See Lord Cowper'a reasoning in Davila v. Davila. For the defendant. The first question for the consideration of the court is, whether a deed,, purporting to be a jointure of lands on an infant, can bar hej claim to dower? Secondly, Whether the present deed contains such a provision as to be considered a jointure in acourt of equity? And thirdly, (a) 1 Ves. 54. (6) 3 Aik. 186. CASES IN CHANCERY. 47 Dbubt V. Whether an infant feme can bar her claims to her share 1761 . of her husband's personal estate under the statute of dis- tribution ? 1st. At common law the provisions attendant upon the Dbubt. marriage contract were settled with great wisdom ; the husband took the whole of the wife's personal estate, was entitled to one-third of her real estate by courtesy, and the wife surviving her husband was reciprocally entitled to one-third as her dower. No jointure made on her, though she was of the age of twenty-one, could then bind her ; but she might waive it, and claim one-third of any estate which the husband had been seised of at any time • during the coverture. After the statute of uses, a jointure made upon her previous to marriage was held conclusive. The law [ 48 ] allowed no collateral satisfaction to bar dower, the statute points one out. It must be made of lands and tene- ments, to take effect in possession or profit presently after the death of the husband, and be for the term of her life, or a greater estate, otherwise she has her election to take dower or not, in the same manner as it was not intended that it should be in the power of the husband to impose a jointure without the consent of the wife ; she was also allowed to elect in the case of a jointure made after marriage. As the law stood then, and has ever since been clear and undoubted, that no conveyance or acceptance of any real estate could bind an infant either male or female, it could never be the intent of the act that a jointure made upon an infant feme should be conclusive. As the legis- lature, therefore, had no thought that an infant could have power to enter into so important an act, they were not mentioned. It could never have been intended that infaftcy should deprive the wife of this important right of choosing for herself, and give the power to the husband VO£. 11. » 48 CASES IN CHANCERY. J^ of imposing what jointure he pleased upon her. These Drurt general acts must be construed according to the subject- v - matter which they treat of, and the intent of the legisla- ture respecting it, and not according to the most exten- sive construction which the words will bear. Many in- stances are given of this equitable construction of statutes in Plowden's note at the end of the case, Eystonv. Studd, 465. Such a doctrine would produce great inconve- niencies; a man of a great real estate might procure an in- fant of the tenderest years to marry him, and by settling • a small part of his real estate upon her by way of join- ture, bar her of dower, while he at the same time acquired an absolute property in all her personal estate. As to the marginal note of Lord Hale, is it, in the first place, clear that it is his handwriting ? If it is, is his [ 49 ] mere dictum an authority? Lord Coke's comment, where he says, that a jointure made, whether the infant be above or under the age of nine years, is good, is now given up : - and in considering Lord Hardwicke's opinion, it must be remembered that it was only an obiter dictum, and founded on the authority of this passage. The case of Harvey v. Ashley did not call for such an opinion : the court only there decided, that a husband, having made a proper set- tlement on the wife, with the consent of her friends, might model her fortune as he pleased. The authority of Sir Joseph Jekyll, in a case which more immediately called for the determination of this point, is the other way. In the case of Cray v. Willis (a), 9 Vin. Ab. 249. he was of opinion that a feme infant might elect to abide by a jointure made to her upon marriage when she came of age* 2dly. Even supposing that it was intended, upon the (a) There is a short note ter's book, in Wilm. Op. Sec. of this case from the. regis- p. 223. CASES IK CHANCERY. 49 construction of die act of Hen. 8. that an infant should be bound by a jointure in the case of Sir Marmaduke Dorrel, considered the matter to be so doubtful, that he recommended the opinion of the court to be taken upon it. The reason why the point has not been raised before is, because no question is ever asked as to the age of the wife : the word jointure has been considered sufficient to satisfy all inquiries. The Lord Chancellor. (After stating the prayer of the bill, and the settle- ment.) The question is, whether, sitting in a court of equity, I can bind the infant to a specific performance of this agreement, and bar her from claiming her dower at law, and her share of the personal estate, under the statute? The law of England which, from a principle of natural and political wisdom, allowed and encouraged early mar- riages, and from a principle of equal wisdom disallowed young persons to enter into personal contracts till they attained a reasonable maturity of judgment, (which the universal consent of this nation fixed at the age of twenty- one,) found it necessary to accompany their maturity for natural contracts by its own provision for the civil rights, reciprocal to both the parties that entered into the mar- riage state. In this, as well as in other cases, the ancient law ne- glected personal estate as an object then, as it really was, of no consideration, and solely regarded the realty. The quantum provided for the wife was one-third of the lands and tenements of which the husband was seised during coverture, with a reciprocity as to the nature of the estate CASES IN CHANCERY. 61 which was required to be such, as if the wife were seised of the like estate, the husband would be tenant by the courtesy. Of this provision, made by law, she could not be deprived, nor could the husband augment it but by contract after their respective ages of twenty-one years ; for if the husband varied this proportion by endowment, ad ostium ecclesice, he must be of full age; if the endow- ment is ex assensu patris, it is of lands, &c. whereof the father is seised in fee, and consequently is the endowment of the father, and not of the son ; but in both these cases the woman is not bound till she enters and agrees after the death of the husband. The law throwing descents first on the males, seems to have considered the woman as purchaser, and sufficiently invited by dower to matri- mony, though she paid as a price for it her personal estate. This seems to be, in brief, the wisdom and provision of the law touching rights consequential to the marriage contract ; and I cannot find that the law apprehended, or that, in fact, it happened that marriages were impeded or procrastinated by the disability of minors to agree to settlements. If a want of such power is attended with impediments of that sort, the legislature knows when to interpose, and is alone, in my opinion, equal to authorize the regulations. The law has been indeed much arraigned as being too liberal in its provisions to the wife ; and it was asked, what man of i? 15,000 per annum would marry, if the wife was to take a third, when the heir was to be cramped to £1 0,000 per annum, and stinted in luxury, expense, and diversion, for the sake of his mother ? It was in- timated that the husband might put in trust what part of his estate he pleased ; to this it was answered, " true : bat then he cannot in his own name avow on his tenants." I do not find, however, that these considerations weighed 1761. Dburv Dbuby. [52] «S CASES IN CHANCERY. 17^1. with the legislature : I am sore they ought to be weighty t^T^ indeed to induce this court to vary legal rights. v. But it is said that the law is altered by that part of Druby. the statute of uses which relates to jointures, and that by the operation of that act, a husband, settling any propor- tion of his lands on his wife to vest in possession on the death of the husband, may bar her of her dower, though she be a minor. And, secondly, that this court, follow- ing the law, should bind a minor marrying, where the provision made is as effectual and substantial for her. And thirdly, that this is the present case. And for the first position is urged principally, that the words of the statute being general, comprehend infants as well as mature persons, there being no saving but a particular provision to permit women to waive a jointure made dur- ing coverture. [ 58 ] At the time of making the statute of uses (27 Hen. 8.) it appears that lands were in general conveyed to uses; and the statute recites many inconveniences and wrongs resulting from that practice ; whether they all really ex- isted may perhaps be a question. The remedy at the same time provided by the statute was the most obvious and effectual that could be thought of, by annihilating uses, by transferring the possession to the use. One of the grievances recited was, that uses fraudu- lently deprived women of their dower, because the wo- man could be endowed of that estate only whereof the husband was legally seised. But as it very often hap- pened that men had kept part of their estates in use, and taken a legal seisin for the rest as a provision for their wives and issue, pursuant to the marriage agreements, as appears by the sixth section of this act, which recites, that " whereas divers persons have purchased, or have estate tnade and conveyed, &c. unto them and wives, and to the heirs of the husband, or to the husband and to the wife, CASES IN CHANCERY. 58 rad to the heirs of their two bodies, or to the heirs of (me of their bodies, or to the husband and wife for the term of their lives; or for term of life of the said wife;" and conse- quently as the operation of the statute would enlarge im many cases the dower of the wife contrary to the agree- ment of the marriage, the statute enacts, with a retrospect, and with a future regulation, " that where any such estate or purchase as are before recited have or hereafter shall be made, &c. for the jointure of the wife, that then every woman married having such jointure made, or hereafter to be made, shall not claim nor have title to have any dower of the residue," &c. The ninth section provides, " that if any wife have, or hereafter shall have, any manors, &c. unto her given or assured after marriage, for term of life or otherwise in jointure, except by act of parliament, and the said wife after that, fortune to outlive her said husband, the wife may, after the death of the husband, refuse, and take her dower at common law/' Upon the state which I have drawn of the common law, the wife, a minor at the marriage, was under a dis- ability of depriving herself of dower ad communem legem; and this is a point always to be had in view in the con- struction of the statute concerning jointures. The next material observation which occurs to me is, that to support the plaintiff's claim, this statute must operate either as a statute enabling an infant to agree to a jointure and bind herself, or, secondly, that it enables the husband to impose a jointure on the infant wife, no- lens volens, at his own will and pleasure as to the quan- tum. Now that it should have been the legislature's intent to have given maturity to an infant to enter into so material a contract under a natural defect of judgment, and con- trary to the protection which the law, from intrinsic equity, in all cases extended to infants, I think, should 17 that t ^ ie w <>rds are general, and that infants parliament. are comprehended. Now that argument must be sup- ported upon this, that the general words in an act of parliament must be expounded in b sense as universal as the terms will reach ; whereas I conceive that they are restricted secundum subjectam materiem, and the legal consideration of the acts, and persons to which they are [ 65 ] referred; and that an exposition ad ultimam vim termi- norum is exploded by the best authorities, and by such authorities as have grown to the strength of rules and maxims of construction. By the statute of Gloucester ', c. 1. The disseisee shall recover damages in a writ of entry founded upon dis- seisin against him which is tenant. But if a feoffment be made to three jointly, and the survivor never agreed, though he becomes tenant he shall not be liable to da- mages. Lit. sect. 685. Lord Cokeys comment upon this section is as follows : " Here it appeareth that acts of parliament are to be so construed, as no man that is innocent, or free from injury or wrong, be by a literal construction punished or endamaged. And' therefore, in this case, albeit the letter of the statute is, generally to give damages against him that is found tenant, and in this case the survivor is found tenant, yet he shall not be charged." 1 Inst. 360 a. And in fo. 365 6. he states CASES IN CHANCERY. 55 other cases within the letter and general words of a statute not comprehended in it, and draws this rule, qui hceret in litterd, hceret in cortice. And in fo. 372 6. he lays it down as a maxim, that the surest construction of a statute is by the rule and reason of the common law ; and if, without regard to this rule, enabling statutes were to ex- tend to infants, the law has been hitherto very much mis- taken (a). The statute of wills (32 H. 8. c. 1.) enacts in more general words than the present, " that all and every per- son and persons having, or which hereafter shall have, lands, &c. may devise." 'The words comprehend having lands, why not infants at fourteen ? They can dispose of j£100,000, why should they not of £500 per a?mum 9 six times less valuable ? The act was made for the end of natural and civil justice, the payment of debts, and provision of children. Plausible reasons! and yet it does not extend to infants. But in order to enable an infant to agree to a jointure, and to take less than the law has defined as a reasonable provision, is it to be held that it does extend to them ? Why, and for what reason ? Because we are told that men are become too sordid to marry on those terms, and that she would otherwise be compelled to live unmarried to twenty-one. So again in the construction of the statute 31 H. 8. 'that "all monasteries and colleges, &c. which shall happen (a) See the observations of Wilmot, C. J., upon the con- struction to be put upon ge- neral words in acts of par- liament, Wilmot's Opinions, 194. also of Sir W. Grant, in Bedford v. Wade, 17 Ves. 92. and of Holroyd, J., in Ed- wards v. Dick, 4 B. & A. 216. As to the effect of the pream- ble in controlling enacting clauses, vide Co. Lit. 79 a/ and Hargravtfs note to it, and the cases cited in the notes to Copeman v. Gallant, 1 P. W. 320.: also Barring- ton on the Statutes, 394. 1761. Dbubt V. Dbubt. [66] 56 CASES IN CHANCERY. 1761* to be dissolved, &c or by any other means come to the ■nTZL king's highness, &c. shall be by authority of this parli*- v. ment, vested in the actual possession of the king ;" it was Drubt. adjudged that a monastery coming to the king's hands by the statute 1 E. 6. was not within the act, though coxa- prised within the general words ; and this upon the au- thority of the determination on thai 3 Elix. c. 10. that bishops, though comprised within the general words, were not within that statute : Archbishop of Canterbury's case, S Rep. 46. These are authorities so well established, that, as I said, they are grown into rules and maxims. But, secondly, it was urged, and very properly la- boured by Mr. Solicitor-General, that the provision with respect to jointures made to feme coverts proves the rule of construction to be general where not provided for ; but nevertheless I cannot help thinking that the provision for them was rather inserted in majorem cautekm against the general words of the statute, which are obligatory as to settlements made on wives, and within which descrip- tion infknt wives, as such, would have been comprehended. These are the reasons which will not suffer me to think that the statute enabled infant girls to agree to settle- ments, so as to bind themselves, and bar them of their legal provision, dower. Secondly. If the statute does not operate so as to enable the infant wife to accept a settlement, it must operate so [ 57 ] w to ena ^ e Me husband to impose a jointure on her, nolens volens, at his own will and pleasure as to the v quantum. I really know not which of the propositions is most repugnant to natural justice and to the principles of the common law ; for the estate which is to bar dower ig of no defined value by the statute, and if it be made up of the qualities and accidents specified, it is a legal bar, and every court of law is bound to accept it as such. But it CASES IN CHANCERY. «J was said, if the jointure was disproportionate, this court • 1761. would relieve on the head of fraud. I have attended tT^ very closely to that answer, but am entirely at a loss to ?. find any foundation for it. What measure is the court Dnvnr. to make of this disproportion ? The husband's estate ? The wife's fortune ? Her family ? Her person P Hot endowments ? I am lost in the impossibility of equity's interposing, and frightened with a jurisdiction that I should attempt to introduce, I have examined all the cases that were cited, and many authorities both in law and equity, and have not been able to find that the courts have bound an infant by any agreement not confirmed after twenty-one. 37 Car. 2. 2 Cha. Cas. 211. Coker was seised of a church lease in trust for Robert Strickland, an infant. On a treaty of marriage between the infant and the plain- tiff, and in consideration of £1000 portion, an indenture was made, with the consent of Coker, the infant's guardian, whereby the infant covenanted that the wife's life should be inserted by way of jointure ; but there was no covenant by Coker, who sealed the indenture. The book says the marriage took effect, the husband (not saying then an infant) dies; the lease was surrendered, and wife's life put in ; she came for an assignment, and Coker claimed an incumbrance on the lease which the court postponed to the wife ; the relief was against Coker** fraud, and no question was made on the infant's covenant. And it is to be observed that the case is not in Lord Nottingham^ [ 58 ] MSS. Franklin v. Thornbury, 1 Fern. 132. is a paltry note of the reporter's, where he says, in the same case, " an agreement being void against an infant, yet was decreed ; the infant having received an interest under it after be came of age ;" which imports, that otherwise it would not have been decreed* 56 CASES IN CHANCERY. 1761. « Drury V, Drury. [59] In Cannel v. Buckle, the principal case is only upon the execution of an agreement by a wife of maturity, notwithstanding the subsequent marriage, where it was objected as a general rule, that no specific performance could be decreed where no damages could be recovered at law. The court refutes that general rule by this case : suppose a feme infant seised in fee on marriage, with the consent of her guardians, should covenant in considera- tion of a settlement to convey her inheritance to her hus- band. If this were done in consideration of a competent settlement, equity would execute the agreement. The state of this case supposes the infant to die in her mi- nority, or before she had confirmed such agreement. This is no adjudged case, and for my ofcn part I very much differ from the supposed decree in this supposed case. Two opinions, indeed, of very eminent judges have been cited upon the binding force of this statute : the one of Lord Hale\ from a marginal note in Co. Lit. ; the other of Lord Hardwicke, from a note taken at the bar. As for the marginal note supposed to be Lord Hale^B, it is too uncertain for me to make a serious comment upon; as also is that argument, much built on and laboured, the want of curiosity and oscitancy of convey- ancers, who, it is said, when they hear the word jointure are satisfied, and never inquire whether the woman is a minor or not when she is married; that is, in other words; whether the dower was barred or not ; a point which, unless we have much misspent our time, was certainly worth inquiring about. Besides, Mr. Mtorney-GeneraTa conveyancers differ from Mr. Wiibraham\ for, according to his account, they never thought about it ; which is natural enough, their time being more dedicated to pe- rusal than thought. As to the alleged opinion of Lord Hardwicke, I shall CASES IN CHANCERY. *9 not presume to treat it as his opinion. I. concur with him in every reason which was material for the determina- tion of that cause ; this was not. If it had been, I should have taken the liberty of conversing with him upon it before I pronounced my decree. Considering it, there- fore, as a position in the abstract, I differ from it ; and upon the best information I can get, till the courts of law judicially determine the contrary, I am most clearly of opinion " that a jointure made before marriage on an in- fant wife may be waved after coverture." Having declared my opinion upon the first question, I have not a great deal to add on the second and third points, which may, and indeed will, be reduced to one. But I cannot help taking notice of the particular settle- ment in question, and laying it down as a principal ground of my determination, that the interest there raised to Lady Drury is destitute of all the substantial qualities required by the statute. First, No legal estate in lands, &c. is conveyed to the lady ; secondly, no equitable lien on any real estate of the husband is created. For though it is said that the annuity is to be in the name of a joint- ure, it is agreed to vest only on a contingency, and to attach not on Sir Thomas, but contingently on his representa- tives ; and unless there were proof of mistake or fraud, I do not conceive this court could interpose to better the security* 27 Car. 2. In Gladstone v. Ripley, Lord Nottingham held, first, that a jointure of a copyhold is no bar of dower at common law. Secondly, that an agreement precedent to marriage to accept it as such, makes it a bar in equity, and therefore he staid the suit at law. But as I have in this case been forced to give my opinion that Lady Drury could not, being an infant, have bound herself by the acceptance , (Journ. Dom. Proc. Vol 30. p. 273. 277. 278.) 4 pro, C. C. Soon after the above decree had been pronounced, the Earl of Buckinghamshire and Mary Ann DruryinXet- married, and the cause being revived, the present appeal was brought The reasons far the appellants were signed by Mx. Yorke (who had then become Attorney-Generaiy, and Mr. Perrot: the reasons for the respondents by the So- licitor~General (Sir Fletcher Norton), and Mr. Seweft (3 Bro. P. C. Ed. TomL 49& 500.) After hearing counsel on this appeal, it was proposed [ 61 ] t° **k ^e opinion of the judges upon a point of law, and they were accordingly directed to deliver their opinions to the House upon the following question : viz. " Whe* ther a woman married under the age of twenty-one years, laving before such marriage a jointure made to her m CASES IN CHANCERY. tt< btr of her dower, ig thereby bound and burred of dower 1 W. within the statute 27 Hen. c. 10 ? * Earfirf The judges, seven of whom were present, differing BuexiNoaAU* among themselves, were directed to deliver their opinions shibs seriatim, with their reasons. Accordingly, Mr. Baron Dm*?. Gould, the Lord Chief Baron (Parker), and the Lord Chief Justice of the Common Pleas (Pratt), delivered their opinions in the negative. Mr. Justice WUmot (*), Mr. Justice Bathwrst, Mr. Baron Adams, and Mr. Baron Smythe, in the affirmative. The Earl of Hakdwicke. I concur entirely in opinion with the majority of the 26 M&^t ^ss. judges, but I do not think it necessary to resume the ar- guments at large, but shall only take notice of such of them as lead to the determination of the merits. For their opinion on that point is not conclusive, though it was necessary that they should be taken from the de- claration in the decree, because equity follows the law, and to know whether the infant would have been bound by a legal jointure. I shall therefore rely on the opinion of the four judges ; but I must observe thus much, that the time which has elapsed since the statute, and the silence and want of resolutions on this head, are stronger arguments than a great many cases: for it shews this point has never till now (and it is two hundred and thirty- five years since the statute) been called in question. The practice of marrying young persons of fortune under age was more frequent in those days than in later times ; the reason was from the law of tenures and ward- [ 62 ] ships. For if a man died, leaving a son or daughter under age, the lord would be entitled to the marriage, (a) Mr. Justice Wtimoft in his Opinions and Judg- tiery able argument is printed ments, p. 177- ** 800n ^ his son or daughter came to a Buckingham- marriageable age, would himself choose a marriage for shirs them. This shews that these marriages and jointures on Dbubt. infants must have been more frequent than in modern times. The lord, too, was equally forward; for if the father died, and his child was unmarried, the lord would tender marriage as soon as the child attained the mar- riageable age ; for otherwise he might lose the marriage. One thing on this statute was truly laid down, that the retrospective provision is penned in the same manner as that for the future : and that if the statute did not bind such women as were then married, it did not bar them of dower ; and then would not have cured half the mischief: and certainly, from the reason of tenure, above half were married under age at that time. Another thing was mentioned by Mr. Justice Wilmot, * who began for the affirmative, and entered largely into the subject, and explained the nature of jointures very ably, and threw a new light on the cause by entering into the law relating to provisions and settlements of this kind, as they stood before and at the making of the statute : he said, that the statute intended to create a bar by jointures then made, or after to be made, without any regard to a contract. The Chief Justice of the Common Pleas puts it upon the foot of a contract. But the recital of the statute sup- poses the contrary : for it recites the instances of settle- ments of inheritances, and they might be made by ancestors of the husband. Where then is the contract ? But the Chief Justice gave a definition of a jointure, that it was a contract for a provision for the wife after the death of the husband. I say, no book defines it so. Lord Coke and [ 63 ] others say, it is a provision of livelihood, but do not take in the word or idea of contract. I was therefore CASES IN CHANCERY. 63 surprised at the positiveness with which this was as- 1761. serted. EfiTlo£ Let us reflect on the usage in families before this law. Buckingham- In most great families a particular estate was kept in that shire state, and usually >o settled from generation to generation. Drury. In most great families there is a house that is called the jointure-house, and the case in Dyer (a) proves, that if a father or grandfather settles on his son or grandson, and such woman as he shall marry, it is a good jointure. Where in such case can be the contract ? The wife is supposed to rely on that when she marries. As to the cases of Seys v. Price, and Harvey v. Ashley, it has been affirmed that they were determined singly, upon the authority of the 1 Inst. 37* I believe that book was produced ; but as to their proceeding singly upon that dictum, I deny it. Though the passage is very material, and the counsel argued upon the observa- tion, " that a jointure made to her under or above the age of nine years is good ", contending, that it meant good to bind both parties. For otherwise, as Lord Coke j, was so accurate a writer, it is probable that he would jflk. have gone on and said, " unless the wife was an infant." $ Neither was it that authority that determined Sir D. Ryder in the case of Harvey v. Ashley, to give up that point, and admit in words that the infant was bound by it, and barred of her dower. Another thing was said, that the authorities cited were cobwebs thrown over the statute. I rather think they are lights upon the statute. One of those lights was j what is mentioned by Hale in the margin of the 1st Inst t (a) Ashton's case, 228 a. done in consideration of the Dyer, in the MS. of this case, jointure, nor was it done of thought that the wife should lands of the baron, nor by the not be barred, for it was not baron according to the statute. VOL II. F 63 CASES IN CHANCERY. v. Dhury. [ # 64 ] J 761. which was treated with great disregard [here his Lordship JpT* f # pronounced a high encomium on Lord Hale, and said he Buckingham- had always been looked upon as one of the greatest lu- 8hirb minarie8 of the law], and though it was called a private note, his MS. authority had been always highly esteem- ed; the original was given by Lord Hale to the bro- ther (a) of Phillips Gybbon (b), who lent it me when I was young at the bar ; and, in the original book, cases are cited in the margin under Lord Hales** own hand, written in his strongest time, when he was judge of the Common Pleas, before the Restoration. Lord Chief Justice Holt, who was as great and able a judge as ever sat in the King's Bench (except Hale), when he doubted of points of law, has borrowed manuscripts of Hale's family to decide his opinion. I think, therefore, that things from reverend hands deserve to be treated with reverence. The opinion of conveyancers in all times, and their constant course, is of great weight. They are to advise, and if their opinion is not to prevail, must every case come to law ? No ; the received opinion ought to govern. The ablest men in the profession have been conveyancers. Sir Orlando Bridgeman (a book of whose precedents has been published), Webb, a great practiser in the King's Bench, was an able conveyancer, and the present Mr. Fikner. In the next place, the judgment and established prac- tice of the court of Chancery is I think of the greatest weight. *A (a) This is probably a mistake for the father of Phillips Gybbon, see the ac- count given of these MSS. from a note of Lord C. B. Parker, cited in the preface to the 13th edition of Co. Lit. (6) Many years member for Rye, and made one of the lords of the treasury, after Sir Robert Walpole's resigna- tion : he died in March, 1762. CASES IN CHANCERY. 64 From these considerations I take it for granted, that 1761. the law and foundation of this case is settled that an in- r 1 of # fant, having a proper jointure made, is bound and barred Buckingham* by it. The next thing is the consideration of equity, whether the jointure, or an equivalent to it, will not bind in a court of equity P To determine this let us define what is a jointure. The law does not say a contract for, but a competent provision of, livelihood. Then the general rule is, equity follows the law in the substance, though not in the mode and circumstances of the case. There- fore, if that has been done which is equivalent to what the law would call a jointure or conveyance of any other nature, it will bind in equity. Every certain provision with consent of the wife, parents, or guardian, though not a jointure within the statute 27 H. 8. is good in equity. This is built on maxims of equity, which regards the substance, and not the forms. What for good con- siderations is agreed to be done, is considered as done, and allowed all the consequences and effects as if actually done ; especially if the condition of the parties is changed, for that cannot be rescinded ; so what is fairly done be- fore ought to be established. This jurisdiction of equity is grown up from necessity from the change of circum- stances and times, and to comply with the occasions of families and the exigencies of mankind. As property stood at the time of the statute, personal * estate was then of little or trifling value ; copyholds had hardly then acquired their full strength, trusts of estates in land did not arise till many years after (I wonder how they ever happened to do so). But the chief kind of property then regarded was freehold estate in land, and so the statute applied to that only. But how many species of property have grown up since by new improve- ments, commerce, and from the funds. Equity has f 2 8HIRB V. Drury. [ *66 ] 65 CASES IN CHANCERY. ^761. therefore held, that where such provision has been made Earl of before marriage, out of any of these, she shall be bound Buckingham- # by it. Consider how many jointures there are now made shire on women 0U f of the funds, and none of them within the v. Drury. statute 27 H. 8. So multitudes of jointures out of trust [ * 66 1 estates, not one of them within the statute ; yet equity has always supported them. So also of copyhold lands. The case of Jordan v. Savage was decreed by Lord King : [here his lordship gave a great character of him, and remarked, that he had been Chief Justice of C. B. ; in which court only writs of dower can be brought :] and though it has been said she took possession of the lands limited to her for jointure by the articles, I answer that the question was upon the free bench, which extended to the whole land, therefore her entry upon part of the land did not bar her of the rest. Vizard v. Longden (a), in which I was counsel, was also decided by Lord King. That was a bill brought by the brother of the husband, who died intestate, against the widow, for an account of the personal estate, and to be relieved against her claim of dower by reason of an agree- ment contained in a condition of a bond entered into be- fore marriage. She by her answer said, that her husband agreed to settle on her a clear annuity of d£?14 per annum ; and no particular lands were mentioned (omitting in her answer the words which were in the condition, for her provision and maintenance), and prayed to have the an- nuity made good out of the real estate, the personal being (a) There is no report of which cases some doubt was this case: it has been cited thrown upon it by Lord by various names in Jordan Rosslyn, which, however, ap- . v. Savage. Tiriney v. Tinney, pears to have originated from 3 Atk. 8. Walker v. Walker, a misapprehension of the 1 Fes. 55. Couch v. Stratton, point decided in it. 4 Vex. 394. in the last of CASES IN CHANCERY. 66 Drury. [*«7 3 deficient, and also to have her dower. The Master of 1761. the Molls declared in his decree, that there was not any eTT% * sufficient proof of the averment, that it was in bar of Buckingham- dower, and so decreed the <£*14 per annum to be made shire good out of the real estate, and also dower. But Lord King reversed the decree upon consideration, and de- clared she was only entitled to the £14t per annum out of the real estate of her husband, by virtue of the bond, and that the said £14* per annum was a bar of dower out of the residue. 1st. I observe this bond must have been general, without mentioning specific lands, because she claimed on this footing, that the personal estate was in- sufficient to answer the annuity. 2dly. That the Master of the Molls had no doubt but that this general agree- ment had been a sufficient bar of dower, provided it had been sufficiently expressed or proved that it was so agreed. Another case is Davila v. Davila, 2 Vern. 724, before Lord Cowper. Covenant, in consideration of the intend- ed marriage and £1000 portion, to pay his wife, if she survived him, i?1500 in a month after his death, in foil of dower ; thirds by the custom of London, or otherwise, out of his real or personal estate. The husband died in- testate, without issue, and the widow brought a bill against the administrator, to have a moiety of the per- sonal estate by the Statute of Distribution ; to which this covenant was pleaded by the administrator, and that he was ready to pay the £1500 ; and Lord Cowper allowed the plea, and said, " that possibly the husband might think it not necessary to make a will, and devise the estate to the next of kin, because he knew his wife was barred by the agreement ;" against that decree there was no complaint or appeal. I have already alluded to a number of cases of join- tures out of the funds ; many must have been on infants. 67 CASES IN CHANCERY. 1761. Earl of Buckingham- shire v. Druhy. [•68] What confusion might not this introduce in families, if parties were to be left to their legal rights ? These cases * were so frequent in courts of equity, that reports, and even notes, ceased to be taken of them. But it has been said, the agreement in the present case was originally vicious, by reason of particular defects in it : that nothing certain is contained, no particular lands specified, and no remedy for the wife to compel the hus- band in his life. But the cases I have mentioned, and also the case upon Lord Lechmere's marriage articles, where it was only a general covenant, are all answers to the objections. And besides, there are two other an- swers. 1st, If there had been danger of Sir T. Drurtfs dissipating, and he had spent this equitable jointure, that would have been an eviction in equity, and consequently would have given her right to dower, like the case of an eviction at law; for equity pursues the reason of the law. 2dly, But he could not have spent it, i. e. not his real estate ; for, if any one was about to purchase, he would certainly have asked whether Sir Thomas was married, if his lady was jointured, and when this was produced would have seen a settlement, or insisted on a settlement being made, or that the wife should join in a fine. Another objection was, that the covenant is too short, but the agreement is general, whereas the covenant is, that his heirs, &c. after, &c. shall pay: therefore, that as there is no covenant for himself, there was no remedy to compel him in his lifetime. But I differ from that : for I think, upon the first clause, that she might by her next friend have brought a bill to compel him, because it is a general agreement, that she should have the annuity for, and in the name of, her jointure, which are the proper legal words, and the language of pleading. Then, has he not covenanted in every circumstance to make a CASES IN CHANCERY. 68 V. Drubv. [•69] jointure, one property of which is to take effect imme- 1761. •diately in possession on the death of the husband, which v^Ttt could not be unless it was settled in ttie life of the husband? Buckingham- Another objection was, that this was an adequate shirk jointure ; a hard bargain. But this is a clear annuity of -L J 600 [here his Lordship mentioned the lady's circum- stances]. I cannot conclude this head without resorting back to the long established course of the Court of Chancery in the case of infants, who are under the care of that court. Many came before me whilst I sat there, in families of the first quality. One I particularly remember, which I would mention, because it includes my great predecessor. The Duke of Hamilton married Miss Spencer, who had i? 40,000 in money, and a considerable real estate. There was a re- ference to the Master for the Duke to make proposals : the report being defective, it was sent back ; and then it came before me, and I concurred in it. But it is objected, that the Court of Chancery does no more than the father or guardian, the best it can, but the infant has the same privilege to waive when she comes of age. When this was the only answer given by so able an advocate as the Solicitor-General (a), I conclude it unanswerable; for this is no answer at all. It is saying no more than that this great court draws in and deludes families. People think, when they resort to that court in respect of infants, that it has a sovereign jurisdiction for what they do, and that trustees and all are indemnified. And what is so done must be in the case of infants. It is improper for me to mention my own precedents ; but in this practice I followed a great example, Lord (a) Sir Fletcher Norton. 69 CASES IN CHANCERY- 1761. Earl of Buckingham- shirk v. Dbury. [♦70] Nottingham (and here his Lordship enumerated all the Chancellors, including Lord Talbot). Have they all con- # curred to draw in and delude families ? If this should be law, every one of us deserved to have been impeached, as being guilty of the greatest abuse and delusion of fami- lies. Such a series of practice and precedents make the law. A great part of the common law is so. What, therefore might not be the consequence of overturning all this established course ? Then the inconveniencies of persons claiming under family settlements; remainder-men may have a third part of their estates torn from them, and the jointure per- haps go to another. Nay, purchasers for valuable con- siderations may be prejudiced, for they can have no relief if the woman is not bound. And no person of a great estate will be able to marry an infant, Unless she finds surety to bar herself at twenty-one by a fine. Beauty, virtue, and merit, cannot always find such surety. If this decree should stand, it must stand irretrievably, for I cannot think how any statute could be devised to reform it There was considerable difficulty in framing the statute of wills. But these cases are so various, it would be impossible to imagine all the cases which are fit to be cured, and which are not. The second general point is, whether she is barred of her distributary share of the personal estate. This, as to the value, is the material point. If any thing can be clear in equity, it is this : if such agreements are fairly entered into, they will be decreed. It is truly objected, that a proper statute jointure could not bar this. But yet, if such a jointure had gone on in such words, or to the same effect as those which have been used in the present case, it would have excluded her. I have seen many such precedents : some concern- CASES IN CHANCERY. 70 ing wives of citizens of London, where the customary right has been allowed to be barred by a jointure, and the wife is said to be compounded with. # 2. Vern. 665, Hancock v. Hancock, where a wife of a freeman of London is compounded with before marriage, by having a jointure, though of land ; she is taken as ad- vanced, and the children shall have her moiety as if she was dead, 1 Vern. 6. Love's case. If this is allowed in such case of a custom, a fortiori in personal estate not within the custom ; for in the case of the custom she has a sort of paramount right superior to her husband. It is objected, that this arises from agreement; but that an infant cannot agree. But certainly an infant so near of age, wanting only two months, might bind her- self as to personal rights. She was capable of devising away all her own personal estate. This is not so strong. It is not to deprive her of her own, but to exclude her of the contingency of any part of her husband's personal estate. And here he has in effect said, so far I make my will already, that you shall not have any part of it. All these contracts are looked on to be for the benefit of the husband and his family, that if he dies intestate, his children or family, and not his wife, should have his personal estate. See the case of Davila v. Davila, be- fore cited, and Lord Cowper*8 reasoning at the end of the case ; that the husband might think it not necessary to make a will, because he might consider his wife barred by the agreement. A contrary construction would be to make this adult infant commit a fraud upon her husband, by claiming in contradiction to the articles. But minors are not allowed to take advantage of infancy to support a fraud. There was a decree by Lord Cowper (analogous to the case in 2 Leo. 108, of Piggot v. Ru8sel) y where tenant in tail applied to borrow money on a mortgage,* the attorney's clerk who 1761. Earl of Buckingham- shirk v. Drury. [*7i] 71 CASES IN CHANCERY. 1761. Earl of Buckingham- shirk v. Dbury. [*7*3 ingrossed the deed was the issue in tail, was then about the age of eighteen, and knew of his being issue in tail, but took no notice of it. Lord Cawper relieved against *this minor, and would not suffer him to take advantage ofhis own fraud (a). In this case I must take it Sir Thomas Drury relied on this agreement, and therefore made no will, and other- wise that he was drawn in and deceived. Lord Mansfield. The general question is, if Lady Drury, having the provision stipulated for her by her marriage articles, is not barred of her dower. I entirely agree with the Noble and Learned Lord who spoke last, that a jointure is not a contract, but a provision made by the husband, &&,. as defined by Lord Coke, and therefore, that the con- sequence drawn from an infant's incapacity of contract- ing is ill founded. I must also deny what has been ad- vanced in the argument of the present case, that either by the law of England, or any other law, every con- tract made by an infant is void; [here his Lordship cited the words of the Edictum perpetuum de,Min. tit. 4.] quod cum minore gestum esse dicitur, uti quceque res erit 9 animadvertas. By our law some agreements bind absolutely, some are void, some are voidable. Contracts for necessaries, such as diet, education, &c. are good (Bac. on Uses versus Jinem), and the infant's body liable to be taken in execution for them. So of a sum advanced for taking an infant out of gaol. Infancy never authorizes fraud ; as, if goods were delivered to an infant, and he embezzle them, trover would lie against him ; or if he took an estate, and was to pay rent for it, he {a) Vide next note. CASES IN CHANCERY. 72 V. Drurt. [73] should not hold the estate, and defend himself against 1761. payment of the rent, by pretence of infancy. If an infant F^T'f pays money with his own hand, without a valuable consi- Buckingham- deration for it, he cannot get it back again. If he re- shire ceives rents, he cannot demand them again when of age. In Watts v. Hawwell and Treswick (a), where the issue tail being eighteen years old, himself ingrossed the mort- gage deed made by his father, and did not discover his right to the mortgage, Lord Cowper held him bound thereby, because, being of years of discretion, he had acted dishonestly in not discovering his title, and ex- pressed his assent to the rule that had been laid down, of infants deriving their protection from those they con- tracted with, i. e. from the nature of the contract, if fair or otherwise. Were infants not bound by such agreements as this, no lady could marry under age without her father or some near friends becoming security that she would, when of full age, join in fine to bar herself of dower, which, if she should afterwards refuse to do, the husband must have his remedy for a collateral satisfaction against the heir of her father, or such next friend, which would make wild work. I approve the distinction taken by Mr. Justice /*) fifi. &* . fay WUmot between infants contracting for conveying away something of their own, and where for barring themselves of a right which is a third person's. Consider the agreement in this case, and what the cir- cumstances of it are. It is an agreement for the infant's advancement. Carriage is so. What sort of a mar- / (a) This is the case of Clere v. Earl of Bedford, 13 Vin. Ab. 536. & cit. 9 Mod. 38. in Watts v. Crcswell, 9 Vin. Ab. 415. The infont was only a witness, and yet was post- poned. See, as tojthis, Mocatta v. Murgatroyd, 1 P. W. 393. Beckett v. Cordley, 1 Bro. C. C. 353. Cory v. Gertchken, 2 Mad. Rep. 40. 73 CASES IN CHANCERY. v. Dbubt. [74] 1761. riage? With the consent of her father or guardiati. ^T f Lady Drury was then nearly twenty-one: there is no Buckingham- objection to the fairness of the transaction. She had only shire £ 2000 for her fortune ; it was an advantageous bargain for her at the time. Better terms may be obtained for infants by parents and guardians than when they are of full age : by much the greatest number of women are married when under age : but they are not thereby to be made an instrument to defraud others, for there is no difference in effect whe- ther the fraud be premeditated, or the circumstances by subsequent events be turned into fraud. If the statute of Hen. 8. had never been made, cdurts of equity would have given relief; but I am clearly of opinion that in- fants are barred under that statute. That act was made for. uses, not for jointures : this is a provision arising out of the general consequences of uses. Consider also the usage and transactions of mankind upon it : the object of all laws, with regard to real pro- perty, is quiet and repose. As to practice, there has almost been only one opinion. . The greatest convey- ancers ; the whole profession of the law ; Sir Orlando Bridgeman : Lord Nottingham : there was not a doubt at the bar in Harvey v. Ashley : Mr. Fazakerley always took it for granted that infants were bound. If this decree were to stand, marriage settlements would be totally subverted without the interposition of the legislature ; and I concur with the noble and learned Lord, that no man living could draw such an act of par- liament. I will never put such an exposition on the law, as to make it necessary to apply to parliament to rectify it It was ordered that so much of the said decree com- plained of by the said appeal, whereby an account is CASES IN CHANCERY. 14, directed of the personal estate of the intestate, Sir Thomas 1761. Drury, &c. be affirmed, and that the residue of the said Elf decree should be reversed ; and it was declared, that the' Buckingham- respondent is bound by the agreement entered into in shire consideration of, and previous to, her marriage with the said Sir Thomas Drury, and that the same ought to be performed and carried into execution, and that the re- spondent is thereby barred of her dower, and of any share of the said Sir Thomas Drury\ personal estate under the statute for distribution of intestate's estates. Drury. [75] This important question was thus, after much dif- ference of opinion, finally settled. Great doubts have however been entertained as to the propriety of the de- cision of the House of Lords. Lord Thurlow (as observed by Lord Eldon in Milner v. Lord Harervood, 18 Fes.275) is said to have expressed him- self strongly in favour of Lord Northington's opinion. The result of subsequent authorities is, that an infant cannot be bound by any ar- ticle entered into during her minority as to her own real estate, which nothing but her own act, after the period of majority, can fetter or affect : that she may be barred of her right to dower by any pro- vision, by way of jointure, if competent and certain, and her interest in money bound by agreement on marriage, since otherwise the husband would be absolutely entitled : but if the provision be precarious and uncertain, as where an estate for life was previously limited to another person, or where it was agreed that the husband's estate should go according to the custom of London, she will not be barred of dower. Durnford v. Lane, 1 Bro. C. C. 106. Williams v. Williams, ib. 152. Slo- comhe v. Glubb, 2 Bro. C. C. 545. Creswell v. Byron, 3 Bro. C. C. 362. Williams v. Chitty, 3 Fes. 545. Caruthers v. Caruthers, 4 Bro. C. C. 500. Smith v. Smith, 5 Fes. 189. Clough v. C lough, ib. 717.3 Woodes,453. n. Simp- son v. Gutteridge, I Mad. Rep. 609. 75 CASES IN CHANCERY. 9th June, D'AQUILA v. LAMBERT. 1761. Awb *£ (Reg. Lib. a. 1760. fol. 330.) nee becomes m- The plaintiff, who was a merchant at Leghorn, on the 8017 h^f co " 8 }?" 21st °f September, 1759, shipped a large quantity of to stop the goods goods by direction of the defendant, Israeli, who resided at any tune be- j n England, and consigned them to him, and drew bills fore they come ^ ° to his hands. of exchange for the money, which were accepted by Israeli. T 76 1 ^ n ^ e *^ fc k °^ November, 1759, Israeli stopped pay- ment, the bills were protested, and on the 23d he executed an assignment of his effects to his creditors. The plaintiff having revoked the consignment to Israeli, consigned the goods to his factor, Montefiori, who, upon the arrival of the goods in the port of London in December, applied for them to the captain, who being also applied to by the agent for the creditors of Israeli, refused to deliver them till the right had been settled. This was a bill by the plaintiff to have the goods delivered. The Attorney-General, and Mr. Comynfor the plaintiff. The consignor may stop the goods at any time before they get into the hands of the consignee, in case the con- signee is in such circumstances as not to be able to pay for them. Wiseman v. Vandeput, 2 Vern. 203, and ex parte Wilkinson in Chancery, 21st of March, 1755. In the latter case wines were consigned from Lisbon to a merchant in London. The wines were brought to Lynn, and the con- signee becoming bankrupt, the agent for the consignor stopped the wines there, and held he might do so at any time before they got into the hands of the consignee ? and that case was said to differ from Wiseman v. Vandeput, as the consignee ran a great risk by reason of the voy- CASES IN CHANCERY. 76 age. But Lord Hardtvicke said, as there was no posses- sion in the bankrupt, no appearance of credit on the goods, nor any payment made, the agent had a right to stop them. The principle is the same as in the cases of real lien. Chapman v. Tanner, 1 Vern. 267- The Solicitor^ General for the defendant. This is not one of those cases where a court of equity will interpose against the legal right, which is most clearly in the consiguee: such an interposition would shake credit* and entangle all the dealings of merchants. The ship sailed on the 16th of September, and did not arrive till December, ,so that the insolvent stood the risk two months. The delivery and possession are material cir- cumstances in all cases of this kind. The goods having been delivered to the captain, he was bound, in point of law, to answer them to the consignee. If they had been lost in the voyage, it was the loss of the consignee. Evans v. Martlet, 1 Lord Raym. 271. Whatever determina- tion the court has made upon particular circumstances, it has never declared, on a general case, that the consignor has a right to stop the goods at the delivering port ; and in a case where there was no commission of bankruptcy, but only a trust deed for creditors, as in the present case; the present case differs from Wiseman v. Vandeput, as the goods were stopped in that case before the voyage began. 1761. D'Aquila V. Lambert. [77] The Lord Chancellor. This is a question of extent and consequence in trade, Had it been res Integra, I should have required a more extensive argument, and taken time to consider; but after former determinations, and the satisfaction those de- terminations have given, it seems a case of no great difficulty. The plaintiff is substantially to be considered 77 CASES IN CHANCERY. 1761. D'Aquila v. Lambert. as a merchant selling goods to Israeli. The case of ex parte Wilkinson is in point. It was determined, on solid reasons, that the goods of one man should not be applied in payment of another's debts : I must therefore decree the goods to be delivered to the plaintiff on payment of the insurance. The right of Stoppage in transitu was first recognized (in the present case, and the cases which are here cited) by Courts of Equity : it was soon, however, upon the same principles of justice, adopted in courts of law. The ex- tensive mercantile transac- tions and insolvencies of mo- dern times have swelled the doctrine upon the subject to such a size, as to render it impossible to comprise it within the ordinary limits of a note. The reader will find it collected in the 18th Chapter of Eden's Bankrupt Law. [78] 1 7th & 18th June, 1761. The principle that where two distinct estates are mortgaged for two distinct debts, a separate redemption can- not be decreed, operates as long as the equities of redemption remain united in the same person. / / WILLIE v. LUGG. (Reg. Lib. b. 1760. /o/. 361.) By indenture, bearing date the 29th of November, 1735, Samuel Willie, in consideration of Mary, his wife, selling her separate estate in order to purchase certain premises called Dixon's Farm, settles the same (subject to a term of 500 years, which had been created by in- denture of the 10th December, 1734, to Robert Dixon, to secure £350) to a trustee, to pay the rents and profits to his said wife for life, remainder according to her ap- pointment. Samuel Willia was seised in fee of two adjoining estates CASES IN CHANCERY. 78 railed the East and West Dales, and as he and his wife 17&1* afterwards found it convenient to sell a part of Dixon** w L E Farm; by indenture, bearing date the 10th of December \ v. 1736, the West Dales were settled to the use of the hus- Luo ° band and wife for life ; remainder to the issue of their bodies ; remainder to their right heirs : the East Dales, in the same manner as Duron's Farm, had been subject to the mortgage to Robert Dixon. By indenture, bearing date the 29th of October, VJ50, Dixon assigned Divoris Farm to Adam Lugg as a se- curity for some money due to him. The bill was brought by Mrs. Willie against Lugg, and the executors of Dixon, who was dead, to redeem [ 79 3 the East Dales. Mr. Perrott for the plaintiff; the Attorney-General for the executors of Dixon. It is a rule of this court, too firmly settled to admit of discussion, that where a man makes two mortgages on different estates to the same person, he shall not redeem separately; and this doctrine is extended to the heir of the mortgagor, and by a still further stretch of the rule, even where one of the estates is entailed* Margrave v. Le Hook, 2 Vern. 2ffJ. But in all these cases the mort- , gage must be to the same person. There is a great dif- ference, either where the mortgages are originally made to different mortgagees, and the mortgages come together by assignment, or where the different mortgages are as- signed to different persons ; the equities remain distinct. Mrs. Willie is in the same situation as a purchaser buying one of two estates subject to a mortgage, who has a right to redeem separately. The Solicitor-General for the defendant Lugg. If the husband and wife had been co-plaintiffs, they would have been tied to a general redemption. She has by her agreement made the whole estate liable for the vol.- 11. g 79 CASES IN CHANCERY. 1761. WlLLtB V. Lugo. [60] whole debt. The circumstances are not sufficient to take the case out of the general rule. The Lord Chancellor. This bill is brought to redeem the East Dales, and to leave Dixon's Farm, now reduced in point of value by the mortgagees selling a part for the benefit of the plain- tiff, who had the inheritance. The question is, whether she can come into this court for such an equity. Every mortgagee, when the mortgage is forfeited, has acquired an absolute legal estate. Upon what terms can this court proceed to a redemption? By giving the mortgagee the value of his money, its fruit, and his costs, and upon those terms only : for it is obvious injustice to help to the restitution of the pledge, without a full restitu- tion of what it is first pledged for. If a person makes two different mortgages of two different estates, the equity reserved is distinct in each, and the contracts are separate : yet if the mortgagor would redeem one, he cannot ; be- cause if you come for equity you must do equity ; and the general estate being liable to both mortgages, this court will not be an instrument to take illegally from a mortgagee that by which he will be defrauded of a part of his debt. I cannot see any difference between that case and the case at present under consideration; for the principle upon which the court proceeds subsists as long as the equity of redemption remains united. If you come to redeem separately, you come for equity without doing equity ; paying a debt, in lieu of which the mortgagee can hold both your estates until this court interposes. There seems also a manifest distinction between this case and the case of a purchase subject to a mortgage ; for there the purchaser acquires a right to redeem that particular mortgagee, and when he comes to redeem, CASES IN CHANCERY. 80 lie offers to equity to pay all that his estate is a debtor for (a). Bill dismissed without costs* 1761. Willie v. Lugo. (a) The rule, however, laid down in the old cases, Purefoy v. Purefoy, 1 Fern. 26. Shuttleworth v. Lanrick, ib. 245. Margravev. Le Hooke, 2 Fern. 207. Pope v. On- slow, ib. 286. (the authority of which, however, was doubted by Lord Hardtvicke in ex parte King, 1 Atk. 300.) Ex parte Carter, Amb. 733. Roe v. Soley, Bl. Rep. 726. that a mortgagor of two distinct es- tates, upon distinct transac- tions, to the same mortgagee, cannot redeem one without redeeming the other, seems, by modern decisions, to have been extended to a purchaser of the equity of redemption of one of the mortgaged es- tates, without notice of the other mortgage. Cator v. Charlton, cit. 2 Ves. jun. 377« Collet v. Munden, cit. ib. Ire- son v. Denn, 2 Cox, 425. Et vide Jones v. Smith, 2 Ves. jun. 372. [81] STANHOPE v. EARL VERNEY. * ™, J i un * s.c. (Reg. Lib. b. 1760. fol. 242.) Cit Butler'* n. ^ ' J ' Co.LH.290b. Henry Sayer being seised in fee of the manor of Tfae custody of Biddlesden, in the county of Bucks (subject to an out- ^ e deeds creat " 7 J ° mga term, ac- standing term of 1000 years, created 23d January, 1661, companied by a declaration of the trust of it in favour of a second incumbrancer without notice of the prior mortgage, held to give him an advantage over the first incumbrancer, which a Court of Equity would not deprive him of. The person claiming under such second incumbrancer, upon purchasing the equity of redemption from the mortgagor, was held not to have relinquished such advantages by having covenanted to retain part of the purchase money to redeem the prior mortgage, as it was also agreed that he might use the money adversely in case he could not adjust the matter amicably. g2 81 CASES IN CHANCERY. 1761. -which was vested in Rigby and Eyre), by indentures of „ %-PyW lease and *release, bearing date the 4, gave and devised all his manors, lands, tenements, mines opened and unopened, and here- ditaments in the West Riding of the county of York, and also his freehold estate in Tintagel, in the county of Corn- Testator having by his will made his daughter te- nant for life of his general real estates, and of lands to be purchased, both with his personal wall (subject to an annual rent-charge of «£ > I200 to the S^proSari? J-Nty Mar V Wortley, his wife, and of .£1000 to his son, ing from sale of Edward Wortley, for their respective lives, and to certain his collieries &c °*her annuities) to, and to the use of Earl Gower, Sir upon trust to Matthew Lamb, and Godfrey Wentworth, Esquire, and dispose and con- . . , . , vey the same in their heirs, upon trust, to permit his mansion-houses, with such manner as fa e appurtenances in the West Riding of the county of she, whether sole rr ° J or covert, should York, to be held and enjoyed by his daughter, the Coun- Dohuv and?" d tess °^ ^ u ^ ^ or ^ e > an< * u P on trust, to pay the rents and fault of appoint- profits of the residue of the premises to her for her sepa- themoney P pr£ rate use * an( * a ^ er ^ er death, in trust, to pay the rents and duced by the * profits of all the premises into the proper hands of his son collieries after paving the ex- Edward Wortley; and after his death, in trust, for the penses, to the first and other sons of the said Edward Wortley, by any same uses as the . . . residue of his woman he should then after marry, successively in tail personal estate : ma j e . an( j f or want Q f ^^ i ssue ' m fru^ f or tne second the testator then, # ' after declaring, and other sons of the testator's said daughter, Lady Bute, that though his meaning was to give his daughter the absolute disposal of the said colleries, &c. to prevent the expenses and trouble that must attend the management of affairs of such a nature under the direction of the Court of Chancery, requested her to direct the money arising therefrom to be applied in such manner as he had di- rected the same in default of appointment : held, that from the general frame and intent of the will, the daughter had not the absolute disposal of this pro- perty, but that her interest was confined to a disposition by sale. CASES IN CHANCERY. successively, in tail male (except her first son), with re- 1761. mainder to her first son in tail male ; with remainder, in ™ i^T^ ' Earl of Bute trust, for the first and other daughters of the said Edward v. Wortley, by any woman he should then after marry, sue- Stuabt. cessivelyin tail general; and for want of such issue, in trust for the testator's own right heirs. The testator empowered his trustees, and their heirs, yearly, during the respective lives of his said daughter and son, to cut down for building and repairs, and also for sale, such timber on his estate in the West Riding of Yorkshire as they should think fit, leaving the usual stock of young timber; and directed that out of the money arising by such sale of underwoods, his trustees should pay to his said daughter the yearly sum of i?300 for her life, for her separate use ; and should after her death pay the like annuity to his said son, and apply the surplus thereof in the purchase of lands, tenements, and hereditaments, in the West Riding of the county of York, to be conveyed and settled to the same uses as hife estate in the said West Riding was thereby devised and settled. He then gave (subject to an annuity of i?600 a year to the said Edward Wortley, his son, for life) all his manors, lands, tenements, mines, opened and unopened, and hereditaments, in the North Riding of the said county of York, and in the counties of Nottingham, Devon, and Cornwall (except his estate in the parish of Tintagel in Cornwall), unto the said Earl Gower, Sir Matthew Lamb, and Godfrey WenttAorth, and their heirs, in trust, to pay the rents thereof to the said Countes of Bute, his daugh- ter, for her life, for her separate use ; and after her de- [ 89 ] cease, in trust for her second and other sons successively, in tail male (except her first son) ; remainder to the use of her first son in tail male ; remainder to the use of her first and every other daughter successively, in tail ge- neral ; remainder in trust to pay the rents and profits 89 CASES IN CHANCERY. 1761. Earl of Bute v. Stuabt. s. [90] thereof into the proper hands of the testator's said son ; remainder to the use of the first and other sons of his said son which he should have by any woman he should then after marry, in tail male successively ; remainder to the use of the first and other daughters of his said son by such wife successively, in tail general ; remainder in trust for his, the testator's, own right heirs. He then gave and bequeathed all his ready money, securities for money, stocks in the public funds, and all other his goods, chattels, and personal estate (except such parts thereof* as he, by his will, otherwise gave and disposed of), to the said Earl Gower, Sir Matthew Lamb, and Godfrey Wentworth, their executors, administrators, and assigns, in trust, in the first place to pay his debts, legacies, and funeral charges, and subject thereto, he directed that his said trustees, their heirs, executors, and administratorss, should from time to time, as they should think proper, lay out and apply the residue of his said personal estate in the purchase of lands, tenements, and hereditaments, in the said West Riding of the county of York, in fee-simple in possession, to be conveyed to the same uses as his estate in the said North Riding of the county of York was by his said will devised and settled ; and further directed that until such purchases should be made, his said trustees should place out the said residue of his 'personal estate on real or personal securities, and not on the public funds, or government securities, and apply the proceeds thereof to such persons as would be entitled to the profits of the land if such purchases were really made. The testator also gave all his collieries and coal mines, and all his estate and interest therein, and all his shares in collieries and coal mines, and all his stock in the coal trade, and his vessels, ships and boats, and all his lands, tenements, hereditaments, goods and chattels in the coun- CASES IN CHANCERY. 90 ties of Northumberland and Durham, unto the said Earl 1761. Gower, Sir Matthew Lamb, and Godfrey Wentworth, p. i fB their heirs, executors, administrators and assigns re- v. spectively, upon trust, to convey and dispose of the same Stuabt. in such manner as the said Countess of Bute, his daugh- ter, whether sole or covert, should direct or appoint by any writing or writings under her hand and seal in the presence of three credible witnesses ; and in default of such direction or appointment, upon trust, for the manag- ing and carrying on the coal trade in partnership with his partners therein; and for that purpose he thereby authorized and empowered his said trustees, their heirs, executors, administrators and assigns, to sell all or any of his lands, tenements and hereditaments, in the said counties of Northumberland and Durham, when and as they in their discretion should think fit, and to apply the money arising thereby, and the rents and profits thereof, in the mean time, in and for renewing the leases of the present collieries or coal mines ; and in taking to farm, or purchasing any other collieries or coal mines, or any lands that lay convenient for ways or way-leaves, and for the doing all other acts requisite and proper for the carry- ing on and managing the said coal trade, in as full and ample manner as he, the testator, could do, and as they, his trustees, should think most for the benefit of his estate. And he declared his will to be, that his said trustees, their heirs, executors or administrators should stand possessed of, and interested in, the clear money [ 91 ] which should arise and be produced out of the said collieries or coal mines, and other his real and personal estates and effects in the said counties of Northumberland and Durham, thereby given and devised to them as aforesaid, in trust to apply and dispose of the same in such manner and for such purposes as the residue and. 51 CASES IN CHANCERY. 1761- surplus of his personal estate was thereby directed to be EarfofBuTi *PP^ e< * as foresaid. And he declared, that although his v. meaning was to give his said daughter the absolute dis- Stuakt. posal of the said collieries, and the premises relating to the same, and of his lands, tenements and hereditaments, in the said counties of Northumberland and Durham, to prevent the expenses and trouble that must attend the management of affairs of such a nature under the direc- , tion of the Court of Chancery, he requested his said daughter to direct the money arising therefrom to be applied in such manner as he had directed the same in default of her direction and appointment. And the testator directed, that the several persons who for the time being should be entitled to his real estate, should take the surname of Wortley; and he gave to such of the daughters and younger sons of the said Countess of Bute, his daughter, except the defendant, or such other son who should, after his death, be entitled to his estate under the limitations of his will, the sum of i?2000 each; and gave the like sum of ^2000 to his said daugh- ter, the Countess of Bute; and directed that i?1500, part thereof, should be applied towards finishing Wort- ley-Hall, in the county of York, and £600, the residue thereof, towards furnishing the said house ; and that the furniture thereof should be enjoyed with the house, as heirlooms, as far as the rules of law or equity would per- mit; and he appointed the said Earl Gower, Sir Matthew Lamb, and Godfrey Wenttvorth, executors of his will. [ 92 ] In January, 1761, the testator died, leaving Lady Mary Wortley, his widow, and the defendant, Edward Wortley, his only son and heir, and the Countess of Bute, his only daughter. The plaintiff, and the Countess his wife, had issue between them, the Right Honourable John Stuart, commonly called Lord Viscount Mount \- CASES IN CHANCERY. 98 Stuart, their eldest son, and the defendant, James Ar- chibald Stuart, their second son, and several other younger children. The Countess of Bute, by a writing or deed-poll, dated the 11th of March, 1761? appointed all the said -collieries and coal mines, and all such stock in the coal trade, and all such vessels, ships and boats ; and also all such lands, tenements, hereditaments, goods and chattels in the said counties of Northumberland and Durham which her late father was seised or possessed of, &c. unto the plaintiff, her husband, his heirs, executors, adminis- trators and assigns, to and for his and their own use and benefit absolutely for ever. The bill prayed a conveyance and assignment of the several messuages, lands, hereditaments and real estate, in the said counties of Northumberland and Durham) and all the messuages, lands, tenements, collieries, coal mines and hereditaments, in the said counties of North- umberland and Durham, which the testator was possessed of or entitled to at his death, either in his own right or in partnership with any other person, by virtue of any lease or leases under which the said premises were held, and might deliver up to him all the stock and utensils in the coal trade, wherein the testator was engaged at his death, &c. The defendant, James Archibald Stuart, insisted, by his answer, that the said deed of appointment made by the Countess of Bute, his mother, in favour of the plain- tiff, was void ; and that she had no power, by virtue of the testator's will, to limit or appoint the collieries, estates and premises in question ; for that although the testator had given such power of directing and appointing such estates and premises as in the will were mentioned, yet that such power was not absolute, but only a power sub modO) and connected with a trust, and controlled by a 1761. Earl of But* v. Stuabt. [93] 93 CASES IN CHANCERY. 1761. subsequent part of the will, wherein the testator requested p, j*~T^ his daughter to direct the money arising from the said v# estate and collieries to be applied in such manner as he Stuabt. had directed the same in default of her direction and ap- pointment ; and that such request ought to be deemed as directory, and construed as legatory words of trust, and ought to control the countess in the execution of such power in favour of such persons to whom the testator directed the same to go in default of her appointment; and that he, the defendant, was, by virtue of the said will, entitled thereto as tenant in tail on the death of his said mother, Sec. The Attorney-General, the Solicitor- General, Mr. WUbraham and Mr. Wedderburne, for the plaintiffs. The great value of the premises makes the principal difficulty and importance of the present question, which is, whether Lady Bute had an absolute dominion and propriety in this devise of the collieries, or stands in the nature of a trustee. As to the import of the word " re- quest," although in common language it implies an abso- lute power and dominion in the person requested, yet according to the civil law, and in this court, it is always considered as mandatory ; but the rule of construing such devises is, that where an ownership of the lands, or an absolute power of appointment is given uncontrolled by any express trust, though it may be accompanied with a request as to the dispossession, a court of equity will not presume that the testator intended to raise an implied trust inconsistent with the express estate. Cary, fo. 30, 31 . [ 94 ] I Ch. Ca. 310. Bland v. Bland («), cor. Lord Hard- wicke, 1743. Attorney-General v. Hall, Fitzg. 314. In the present case there are express words which have (a) Cit. in Pierson v. Gar- all the cases on this point are net, 2 Bro. C. C. 38. where collected. CASES IN CHANCERY. 94 conferred an absolute right of disposal. The trustees are charged, with particular directions, to convey and dispose as she should appoint; and she being a feme-covert could not exercise her powers of ownership in any other manner, or have taken so absolutely, as the greatest part of the property is leasehold. Her authority is general, subject only to a recommendation, but which could not raise any implied trust in her, because the testator him- self declares that he has given the power to her " iti order to prevent the expense and trouble which must at- tend the management of affairs of such a nature under the direction of the Court of Chancery" These words must be considered as negativing any intention that his request should be construed into a trust. In one place he directs the trustees to " convey and dispose as she should direct"; and in another he declares that he has "given her the absolute disposal." Such a power might be exercised by gift as well as sale, and amounts to the absolute ownership : the trustees are expressly prevented from acting, except in default of appointment. The testator has evidently distinguished this from the other parts of his property; it was of a different nature, and therefore required a different sort of management : it was in the nature of a partnership adventure, therefore a very unfit subject to be in the hands of trustees. Great demands might arise, and large sums of ready money might be required to carry on the adventure; or he might consider it as a proper fund to answer the exi- gencies of the family in advancing sons or portioning daughters. Mr. SeweU, Mr. Perrot, Mr. de Grey, Mr. Hoskins, and Sir Anthony Jbdy, for the defendants. It is a general question of the intent of the testator, whether Lady Bute was to have the absolute dominion 1761. Earl of Buth v. Stuabt. [95] VOL. II. H 95 CASES IN CHANCERY. 1761. Earl of Bute v. Stuabt. and property in these collieries or not The only general rule upon this subject is, that any man may devise by any words that will express his intent : take the general plan of the will, and it all speaks accumulation. Testator intended to make a new family out of grandchildren. The key of construction is his intention of a perpetuity ; it is therefore clear that the general intent was, that the money and produce arising from it should be applied to the uses expressed in the will. Had the intent been to give an absolute interest, the subsequent directions to the trustees, in default of appointment, are absurd. The testator merely intended her a private trust : he was ap- prehensive that the trustees might be unwilling to exe- cute the trust without proper indemnity, and thought that the choice of continuing to carry on the collieries, or to sell them, could be no where so properly lodged as in Lady Bute; he therefore gives her a power either to- carry on the works, or to direct a sale, which he does not lodge in the trustees. But it does not follow from thence that he intends to give her the absolute dominion and' property ; on the contrary, the money arising from her appointment is expressly limited to go along with the estate. If he had meant it for her own benefit he would have expressed it so in precise terms, as he has done the other benefits which he has given her by the will. Where- ever he gives her anything throughout the will, he ex- presses the same to be for her benefit* except in the clause in question. r 96j The Lord Chancellor, after the counsel for the de- fendants had finished, stated to the counsel for the plain- tiffs some observations which had occurred to him as to the construction of the will ; and adjourned the reply till' CASES IN CHANCERY. 96 after the long vacation, that they might have full oppor- 1761. tunity of considering the same. Eari""fBnM v. Stuart. The Attorney-General in reply. It has been stated on the other side, that the object of 10th Not. the will was to create a perpetuity. If such had been the sole intent of the testator, he has pursued very in- adequate means to effectuate it ; as where he might have made tenancies for life, he has made limitations in tail. There is not therefore evidence of intention to be drawn from the general frame of the will sufficient to control the particular clause. He distinguishes the collieries from the rest of his estate, as he did not mean to do the same with them ; and he gives the reason, that if held in trust, and subject to this court, the expenses would be enor- mous ; he therefore gives them to her absolutely. For the defendants it was laboured to shew what was not the testator's intent ; but all the counsel differed as to what was the intent. They could not insist that it was a trust throughout. Mr. Sewell said it was a secret concealed trust ; Mr. Perrot, that it was a power to indemnify the trustees ; Mr. de Grey, that it was the testator's in- tention to give the power of managing the estate uncon- trollable to Lady Bute. Then, by the last observation which fell from the court, it is said that there was a dif- ficulty necessarily attendant on the trust, which Mr. Wortley wished to avoid, that he might either effect tfiat by a beneficial gift to Lady Bute, or by directing a sale, with the option lodged in her, and an eventual trust after* the sale was effected, and then it is said he chose thtf latter. From what words is that to be collected ? The words of gift are absolute. Is it then from the words' directing the employment of the money to arise from it f Why mfcst they necessarily import a sale ? If he had h2 97 CASES IN CHANCERY. 1761. wanted a sale, how could he have missed using proper Earl of Bute wor ^ s t0 ex P re8S tnat intention ? But he was wholly v. averse to the sale of this part of his property, which, from Stuabt. j te na t ure> could not produce a price adequate to the income it yielded. The Lord Chancellor. 33d Nov. This bill is brought by the Earl of Bute, as appointee of his Lady, on a claim derived under the will of her fa- ther, Mr. E. Wortley Montague, to have the trustees in his will, three of the defendants, to convey to the use of plaintiff, the Earl, the estate of Mr. Wortley, in' the counties of Northumberland and Durham, collieries, coal mines, all the stock and utensils in the coal trade, vessels, ships, &c. and that they may account for rents and profits of the premises. It was said by the counsel for the plaintiff, that the premises are of an immense value, and therefore the question of the greatest consequence to this noble family ; and, indeed, that circumstance would in this case, as well as in some others, have brought a load on me under which I should have sunk, had I not to support me the consideration that, by the wise policy of our constitution, this is not a court of the last resort, and therefore that the judge can do no substantial injury to any subject who comes or is brought hither. Mr. Attorney stated the question to be, whether Lady Bute had an absolute dominion over, and propriety in, these collieries and other premises, or stood in nature of a trustee ? But as she had no legal estate in the premises, I don't see how she could stand in the nature of a trustee ; and as Mr. Wortley had left her at liberty to appoint or not, she was not under obligatioconscientujeadintentionem oUerius. Therefore the truer and more simple question CASES IN CHANCERY. 98 seems to be this, Whether Mr. Worthy intended to era- power his daughter to direct the trustees to dispose of the premises for her own absolute benefit, or without con- sideration, if she thought proper so to do ? He certainly might have done so if he pleased, and that brings it only to a question of intention, which arises daily in this court, whose duty it is, as well as that of a court of law, to carry such intent into execution. To find out the testator's intent, it is necessary in this case, as in others, to view the whole plan and scope of the will ; and particularly to examine that part or clause from which the question under consideration now imme- diately arises. The first principle of this will is founded on a pre- dilection to his daughter, and in a general desire to dis- inherit his son, and to substitute Lady Bate as the root in his place, and to catch hold of every possible fund for accumulating a great landed estate for her second son. For though there is a reserve of part of the inheritance to the issue of the eldest son by any other wife than the present in the West Riding estate, yet Lady Bute is preferred to the testator's sons with respect to the free- hold of that estate, charged with the annuities ; and, per- haps, that contingent limitation was more from decency than a desire or expectation that it would ever take effect. This estate in the West Riding was a wooded and timbered estate ; he does not make Lady Bute tenant for life, subject to the charges with impeachment of waste ; but lays his hands on these casual profits for a fund of accumulation, and giving thereout i?300 per annum to his daughter for her life, directs " the residue of the mo- ney arising by sale of timber and underwoods, to be ap- plied to the purchase of lands to be nettled to the same «*e# of the estate" His estate in the North Riding, &c. 1761.- Earl of Bute t». Stuart. 99 CASES IN CHANCERY. 1761. Earl of Bute v. Stuart. he limits to the separate use of his daughter for life ; re* mainder to her second and every other son, with re- mainder over : then to his trustees all his money secu- rities, goods, chattels and personal estate whatsoever, to pay his debts, funeral expenses, bequests and legacies, and " subject thereto, to lay out the residue in the pur- chase of lands and tenements in the West Riding, to be conveyed when purchased, to the same uses and subject to the same provisos as his estate in the North Riding is hereby devised and settled ; and till such purchase, the interest and proceeds to be paid and applied as if the pur- chases were made. " He then gives all his collieries and coal mines, and his stock in the coal trade, and all his vessels, ships and boats, and all his lands, tenements and hereditaments, goods and chattels in Northumberland and Durham to his trustees, upon trust, to convey and dispose of the same in such manner as his daughter, whether sole or covert, should direct and appoint ; and in default of such appointment on trust, for managing and carrying on the coal trade in partnership ; and for that purpose he em- powers and intrusts his trustees to sell his effects in the said counties at discretion, and to apply the money arising by sale, and rents, and profits, in renewing leases of the collieries, and farming or purchasing others or way leaves, and in all other acts proper for carrying on the coal trade in as full and ample manner as he could do. "And his will was, that his trustees should stand possessed of, and interested in, the clear money arising from the collieries and coal mines, and other real and personal estate, and effects in Northumberland and Dwr- ham, hereby given to them as aforesaid, to apply the same for such purposes and in such manner as the residue of his personal estate is directed to go or be applied ; and although his meaning was to give his daughter the aboo- CASES IN CHANCERY. lute disposal of the said collieries and other premises in the counties of Northumberland and Durham, to pre- vent the expense and trouble that must attend the ma- nagement of affairs of such nature under the direction of the Court of Chancery, he requested his said daughter to direct the money arising from the same to be applied in such manner as he had directed the same in default of her direction and appointment. He gives his fee-farm rents in Sussex to the second and every other son of Lady Bute, with remainders over. His leasehold estates in Cornwall to attend the freehold estate in Tintagel; his house at Twickenham to his trustees to be sold, and the money to be disposed of as the residue of his personal estate." I have here presented the skeleton of this will, and it appears indisputably (except in the case in question, the consideration of which I postpone), that in the disposition of this immense real and personal estate, the principal object of Mr. Wortley was that of every old and rich man, anxiety to make his wealth survive himself as long as possible, and that though in the arrangement of the par- ticular estates, he preferred one before the other, yet he preferred the preserving his wealth unalienable to every thing else. For though by using technical words he has given a power of alienation, yet from the frame of the will, it is to be suspected, that it. was occasioned either by the inattention of himself, or the person that drew the will. In the disposition of every branch of the real estate, his favourite object, the daughter, is only made tenant for life. Nay, in the West Riding that estate is contracted ; the produce of a fall of timber and underwood was too much to intrust her with, and therefore, after wringing out <£300, that is intended to be established as a perpe- tual fund of accumulation. The residue of the personal estate is destined to the 100 1761. Earl of Butb v. Stuart. 101 CASES IN CHANCERY. 1761. same purposes, and even the house at Twickenham is Elf Bute thrown mto ^ e aggrcg** 6 fand* and Lady Bute's legacy v. of i?2000 is not even subjected to her dominion and pro- Stuart. priety, but £1500 is destined to finish the seat, the other £500 to furnish it. And besides, there are legacies of £2000 a-piece, together with maintenance, given to all her younger children. But "still it is insisted, that the collieries and estate in Northumberland and Durham are excepted from this general plan, and that they are given to her in full pro- priety, and at her absolute disposal. Pretty odd, for Mr. Wortley to say, " You shall have the dominion of this great treasure if you will give it away, but if it be retained and managed for the best, you shall only enjoy for your life the profits of the profits !" And the only motive for his departing from his general plan of settling and preserving, and his becoming on a sudden so generous, that I have been able to collect from the argument, was to prevent the trouble and expense of their management under the Court of Chancery. But this would be, in a tenacious man, ne moriare^ morL And a person of Mr. Wortletfs sense and penetration might have discovered a medium more agreeable to the general plan of his will, and which, in several instances, he has pursued. I mean that of converting his property, where it stood under in- convenient circumstances, into a more simple species, as the purchasing of land capable of being settled in a course of particular estates. I am aware this will be objected to by asking, why then did he not give such a plain and express direction, especially as he has done so with re- spect to the timber, underwood, residue of the personal estate, and the house at Twickenham t and because he . has not repeated the same thing in as plain and express a manner, it may be too hastily inferred that he designed it absolutely for his daughter. CASES IN CHANCERY. 108 But very little reflection will show that there is a strong 1761. distinction between the two cases, and that an express « i^Tbii™ direction for a sale might be very well applied to the v . instances specified, and not at all adapted to the condition Stvabt. of the collieries ; for all the other matters would go to an open market, and nobody could avail themselves, op prejudice his estate from a knowledge that they were directed to be sold. But perhaps (and it seems to me) the collieries stood on a very different bottom: there are few persons that could, and fewer that would pur- chase and become engaged in so extensive and intricate an undertaking, how beneficial soever it might be under a proper and prudent management. And therefore the purchasers might be confined to the number of surviving partners, or some few others conversant in that trade, who might make their advantage of an absolute direction for the sale of them. In such a case as this, a man of pru- dence might think it no improvident medium to lodge in some person a power to have them sold, and at the same time to arm the person with a power to carry on the trade in as full and ample a manner as he himself could. A person so intrusted was not subject to the disadvan* tage I have pointed out, and would be enabled, whenever a reasonable offer was made, to relieve the estate from the expense and trouble of being under the management of this court. From the general plan of Mr. Wortleffs will, this might have been his intent, and would have been the most reasonable provision he could have made against the expense attending the taking directions and passing accounts in this court. I will now consider, whether, from the particular part of his will, relative to these collieries, and the premises in Northumberland and Durham, this appears to have been bis intent, or that he intended the absolute dominion for his daughter. 105 CASES IN CHANCERY. 176L It is first observable, that the absolute legal dominion E , >- Ttj of the premises is given to the trustees, who are to con* v . vey and dispose as Lady Bute should direct and appoint Stuart. jjmj the devise stopped here, Lady Bute would have had a power of appointment during her life, which, if she bad failed to execute, the trust of the premises would have resulted to the testator's real and personal repre- sentatives. Mr. Wortley, supposing that she might not execute the power, immediately proceeds to a provision in default of such execution, which, if her power was to be as absolute as it is now contended to be, seems to be an absurd and unnecessary provision, since it was saying, if you execute the power you shall have the absolute inter- est in the premises ; but if you do not, the perpetual mesne profits shall be from time to time invested in pur- chases. But Mr. WorUey foresaw that his daughter could not probably forthwith execute the power he had given. He therefore declares the trust immediately, and subjoins it, so as to take into the trust the whole profits from his death ; for the words in default applied to a thing future, and not in existence, but commencing immediately. It makes it therefore necessary to see what sort of con- veyance he intended the trustees should make on the direction of his daughter, and this naturally draws up the last explanatory clause, and 'connects it with the first. " And although my will and meaning is to give my daugh- ter the absolute disposal of the said collieries and pre- mises relating to the same, and of my lands, tenements, and hereditaments, in the said counties of Northumber- land and Durham, to prevent the expenses and trouble that must attend the management of affairs of such a nature in the Court of Chancery, I request my said daughter to direct the money arising from the same to be applied in such a manner as I have directed the same, CASES IN CHANCERY. 10* in default of her direction and appointment." That ib, 176h as the residue of his personal estate, in purchasing lands. j^i*"fBu T - Now, as Mr. Wortley took notice that money was to v. arise upon the conveyance and disposal of the trustees, Stuabt. it seems to me, that he could mean only that they were to convey and dispose on a bargain and sale settled by his daughter, for as he supposed money to arise on that conveyance and disposal, so he supposes, as in truth it must be, that the money was to be received by, and lodged in, the hands of trustees ; and therefore he does not request her to lay out or apply this money in the purchase of lands, but to direct the money to be applied. If, therefore, the apparent intent of Mr. Wortley was, that the trustees were only to convey for money, that must be construed to be upon a sale, the terms of which were to be settled by the daughter, but concerning the application of the money arising from it, she had no election, but only a request of supervision ; for if she directs the application, the quomodo is prescribed. Sup- * pose Lady Bute had appointed the trustees to convey to /. S. for money, and had given no directions touching the application, and the trustees had conveyed and re- ceived the money, could there be a doubt or hesitation that on a. bill brought by any remainder-man, this court must have decreed a purchase and settlement in the same manner as if she had made no appointment for the trus- tees to convey P It must have been decreed with regard to the rents and profits of the premises in the hands of the trustees. It appears to me, likewise, from the clause of the power, and the provisions in default of execution of it, that Mr. Wortley intended these premises to be sold as soon as it was possible that they could be fairly, and for a valuable consideration, to answer his wish of free- ing his family from the expenses of the management of 106 CASES IN CHANCERY. 1761. Earl of Bute v. Stuabt. this court ; because Lady Bute, who has the power, is made to be interested in the execution of it ; for if the premises are sold and reinvested, she becomes tenant for life of the new purchased lands. But if the power be not executed, she becomes only tenant for life of the lands from time to time purchased out of the rents and profits. He incited, therefore, his daughter to sell, by makingit her interest so to do. He confided in her prudence and honour not to do it under unreasonable disadvantages, as the whole would ultimately centre in her children. If this be a true light for considering this case, it puts aside and removes any similitude of this case to all those ques- tions that have arisen upon the effect of devises, coupled with a rogation. For Lady Bute, on this mode of reasoning, is only vested with a power of election ; if she takes in consequence of a disposal, she takes an ex- press estate for life ; if she does not direct a disposal, she takes an express estate for life in the clear profits when invested in new purchases. Whereas, in the case of rogation, the interest prima facie vests absolutely in the person requested, and the doubt is only on the intent of the testator, whether that legacy is restricted and con- tracted by a donation over, or, which is in substance the same thing, by a mandate irresistible of the testator. I must take notice, that it was contended for the in- fant by all his counsel, that the testator intended only to appoint his daughter absolute auditor, inspector, and su- preme judge of his trustees, and to prevent the expense of this court by wresting out of the hands of this court its jurisdiction, and putting it into the hands of his daugh- ter. But I see no reason to think that any thing so wild ever entered into his head, for if it was not conveyed from the trustees into another family he intended it should continue in trust, and while it continued in trust he knew CASES IN CHANCERY. 106 v. Stuaat. it must remain subject to the jurisdiction of this court ; 1761. and I dare say would not have invested this in trust, if -. 1*7^ he had not confided in this court for the execution of those trusts. I have now given my thoughts, together with my rea- sons for the construction I put on Mr. E. fVortletfs will, and the intent I collect from it. It remains only for me to declare, that after the maturest deliberation, I am of opinion that Mr. Wortley did not intend to empower the Countess of Bute y his daughter, to direct the trustees to dispose of the premises for her absolute benefit, or with- out consideration, but that he intended only to give her a power to sell the same, and that the money arising there- from should be applied in the purchase of lands in the same manner as the clear profits of the premises, in case she had made no appointment. And that therefore the appointment made to the Earl, her husband, is void, and his bill must be dismissed. This decree was afterwards affirmed in the House of Lords, 28th January, 1762. 1 Bro. P. C. ed. Toml. 476. Lady Bute being thus considered as only having a power of sale, it was proposed that Lord Bute should be the purchaser: but the trustees, acting for the infants, would not execute the conveyance according to the appointment of Lady Bute without the directions of the court. Lord Bute accordingly filed a bill to have a sale made under the direction of the court. The cause came on to be heard before the Lord Chancellor on the 5th of December, 1763, when % de- cree was made for a sale of the collieries, and all the ar- ticles, stock in trade, imple- ments, &c. were decreed to be sold ; and under that de- cree cash in Child's hank, and in the hands of the agent and the fitters, was transferred as stock in trade. Reg. Lib, a. 1763, fol. 49. A question af- terwards arose upon the same property under the will of ioy 17W1. Earl of Butb v. SrtfAB*. CASES tfi CHANCERY. Lord Bute : in which, words, nearly resembling those used by Mr. Wortley, were, on the authority of the above de- cree held by Lord Rosslyn to comprehend money due from the fitters and others, and cash in the Tyne Bank. Stuart v. Earl of Bute, 3 Ves. 212. This decision wifts after- wards affirmed by Lord Eldon upon a rehearing, 11 Vet. 657, but not without so much doubt as to induce the parties to appeal to the House of Lords, where it was reversed. 1 Dow. P. C 73. f Afy s/^v FOX v COLLINS. (Reg. Lib. Mitt. Mic. 1761). 24th Nov. 1761. S.C. Atnb. MSS. Residuary be- Phinbas Evans, by his will of 7*h September, 1759, 8wcT!l!c." there devised his real estate in North Benfleet and Wickford, being two per- to his cousin, Sidney Collins, widow of Nehemiah Col- name (A. C. of ^ n8 * kte of Leominster, in the county of Hereford, who St. L and A. C. wa8 the second daughter of his late uncle Thomas CoU whom 'were ape- tins,* in the county of Huntingdon, and her heirs and {f^j 1 2f atec i 1 ; assigns for ever; and also bequeathed to her the sum manifest intent of £500. aflSen? on°tne He *** 8* ve to *"■ cmai ^ Edward CoUins, of Fir- face of the will, ginia, in America, son of said testator's uncle, Thomas wa?«tideT Cr CoUins, £600, if the said Edward CoUins should be living at his decease ; but in case he should be then dead, then the said testator gave said i?600 unto such of his children as should be living at said testator's decease, to be equally divided amongst them, share and share alike : but in case said Edward CoUins should have no child or children living at said testator's decease, then CASES IN CHANCERY. Wj said £600 was to be considered as part of the residue 176J • of the testator's estate, and to be applied as such. He *CT* then gave to the defendant Ann Collins, of St. Ives, in *. * the county of Huntingdon, daughter of the said testator's Coli*in*< uncle, Thomas Collins, £600, and to the defendant, So* [ *H>8 1 muel Bethell, grandson of the said testator's late uncle, Thomas CoUins, .£400. He then gave to Thomas Collins, son of said testator's late cousin, Robert Collins (who was the youngest son of said testator's late uncle, Robert Collins), £500 ; and to the defendant Ann CoUins, of Bromyard, in the county of Hereford, youngest daughter of said testator's late uncle, Robert Collins, i?300. After giving several pecuniary legacies to other per- sons,, and (inter alia) to the plaintiffs, £ 100 each, the testator bequeathed all the rest, residue, and remainder of his goods, chattels, and personal estate, of what nature or kind soever, after payment of his just debts, funeral charges, and the charges of proving his will, unto the- said Sidney Collins, Ann Collins, and Sarah BetheUy the younger, to be divided amongst them, share and share alike ; and appointed plaintiffe executors attd* executrix of his will. This was a bill by the plaintiffs for: the direction of the court in the application of the residue*, which was said to be i?l 400. Each of the Ann Collinses insisted that she was the person meant in the residuary clause, and claimed one third of the residue. The next of kin insisted that the devise was void for uncertainty, and that they were entitled to the third part of the residue. There was no parol evidence read of declarations or other marks of predilection of the testator for either of the Collinses, but his intention was to be collected from what appeared on the face of the will. ftef 108 CASES IN CHANCERY. 1761- The Lord Chancellor. . //ZJ^Fox The court will prevent an intestacy if possible. I am ^ *• * convinced from the will itself, that Ann Collins, of St* Ives, was intended. The first objects, in point of predi- [ # 109] lection, were the children and grandchildren of Thomas Collins ; they stand first in the will, and have the largest legacies. The devise to Edward, if living, and if not, then to his children ; and if there are no children, the directions that the legacy should be considered as part of the residue of his estate, and applied as such, are very material to shew his intention that the residue should centre amongst the descendants of Thomas. The word "said" in the residuary clause does not refer to Arm Collins, of Bromyard, as the last antecedent, but is ap- plicable to all the three residuary legatees, as coupled together, and is very strong in favour of Ann Collins, of St. Ives, who stands as a legatee in the body of the will, placed between the other two, as she is in the residuary clause, and they are all three descendants of Thomas Collins. Every reason that can be assigned for inserting in the residuary clause the name of Ann Collins, of Bromyard, holds stronger for inserting therein the son of Robert, which the testator has not done. Decree one third of the residue to Ann Collins of St. Ives. CASES IN CHANCERY*^ Jfc&. 110 VERNON «. BETHELL. 25 *» 2«h, *7th, & 29th Jan. (Ifc#. Z,&. b. 1761. fol. 127.) 1762# Major Vernon was seised in fee of an estate in An- A. having grant- tigua, of the value of about i?1000 per annum, from ^S^SS^^ whence he had his sugars consigned to Mr. Bethell, a A of a West West India merchant in London, as his factor. Being befog found indebted to the amount of £'XJ% by mortgage upon the u Ij° n an a «*>unt estate, he procured an assignment of the mortgage, bear- greatly indebted ing date 5th March, 1729, to Bethell, and borrowed *? ^re 1 ^ . tne equity of several further sums, amounting to about i?5000 or redemption to ^6000 ; the mortgage being made a security for any far- f t '™**^£ ther sums which Bethell might advance to him. however, at the In a letter to Vernon, bearing date the 23d of April, y^ ^^^ as 1738, Bethell expressed himself as follows ; " My ac- an absolute sale, . • 11 1 it and B. having, count is swelled to so enormous an amount, that I must both by letter have possession of the Antigua estate, in order to save a ?** in conv f I ? a - . _ . tion, stated him- something for your family : " and at the same time inclosed self as being only the balance, which then amounted to i?9541 : ft?. : Id. moTt €B^e in 7 ^ possession, a re- By indenture, bearing date the 25th of August, 1738, demption was reciting the mortgage, and several advances, and that the e JJ^ from sum of £ 9976 : 1*. : lid. was then due to Bethell, which B*y> A. on con- was the full value of the inheritance, and that Vernon, no tified to his for the consideration of five guineas, had agreed to convey executors his the inheritance to Bethell, he releases and conveys the lease his claims: premises to hold to Bethell, his heirs and assigns. From *? el j!> th^e had \ . . ~ forfeited his right that tune Bethell continued in possession of the estate to it by filing the and receipt of the profits. P" 1 "* m * The plaintiff having filed a bill for an account and re- demption ; Bethell died soon after, and in his will, dated the 1 9th of March, 1*158, was the following clause. " And whereas I have not devised my real estate in Antigua, which I purchased of Mr. Vernon, who sets up unjust vol. 11. 1 Ill CASES IN CHANCERY. J762. Vernon v. Bethell. pretences to defeat it, in order to leave my residuary legatee as little embarrassed as may be, I order my exe- cutors to pay John Vernon ^(HXK), on his notifying his willingness to release the claims he makes, and on that condition only I give it him.'" Upon this the plaintiffs filed a supplemental bill for an account, in order to enable him to elect whether he should take the i?6000, or have ft redemption. Several letters and declarations of the deceased, as acknowledging the mortgage, were put in evidence by the plaintiffs. An answer to a letter of Colonel King, who had applied to purchase the estate. " June 5, 1739. I cannot yet dispose of the estate, having given the Major my word that it should go back to the family when my balance is paid. I cannot be worse than my promise, but should it ever be to be disposed of whilst in my possession, you shall have the refusal.'" In a second letter to Colonel King, dated the 17th of September, 1739, he says, " As to Vernon'z estate, you will find, in a former letter, I advised that the affair is so circum- stanced as to admit of no alteration." And to the plain- tiff, " 9th M ay, 1758. I shall do you that justice which I ever intended in the first instance of my purchase of the estate." The following parol declarations of Bethell were also proved : to Dr. Rose he said, " that he was bound in honour and conscience, as well as by promise, that the Major should have the estate again on his being paid, though he had got an absolute acquittance ; " and at an- other time, " Let him pay me what he owes me, and he shall have his estate again ; " to Samuel Martin he said, devised a11 his freehold and leasehold estates (sub- mainder to B.& ject to a mortgage for i?3500 to his brother-in-law So- f^toBJk^ mu el Brackley) to his three daughters, Ann, Jane, the A. devises cer- wife of the defendant Gibson, and Frances, to be divided tain premises (subject to a mortgage of 9500/.) to his three daughters, to be divided equally; one equally between them, share and share alike. Mrs. Gib- son died on the 23d of June, 1742. Samuel Brackley, by his will, dated the 20th of July, 1744, taking notice of the said sum of <£3500 due to dies ; mortgagee him on mortgage, and that there was a considerable arrear the two survivors °^ interest owing, devised as follows : " Now I do give and bequeath all my right, title, and interest, of, in, and to, my brother FluellwC* estate, now in mortgage to me, and ail sum and sums of money due to me therefrom or thereout, unto James Brackley and Christopher Gibson, and it it do not m trust ; nevertheless, to permit and suffer my nieces, amount to 4000/., » r j y then to be made Ann and Frances Aspley, to receive the interest and profits thereof during their natural lives, share and share alike. But in case either of them shall die without issue, estate to the t ^ en ^ e 8nare or P art °f ner * 80 dying, to go to the third ; held, that the charge is merged in the inheritance. all the money due on the mort- gage and the in- terest, so that it do not altogether exceed 4000/., and if it do not up : the other daughter dies, leaving all her sur- CASES IN CHANCERY. 115 vivor of them. And my mind and will is, that in case 1762. my nieces, or either of them, shall leave any child or p*^* children, then, and in that case, the share of her or them, v . so leaving children, shall go and be payable to such issue Gibson* when they attain twenty-one ; and in the mean time the [ 116 J interest and profits shall be applied for and towards their maintenance and education. It being my intention that my nieces and their children (if any) shall have only ^4000, and the interest as aforesaid ; and therefore, in case the interest due upon the said mortgage shall exceed the sum of £500, it shall go to my personal estate ; and in case the interest due upon the said mortgage shall not amount to the sum of £500, it shall be made up out of my personal estate." Ann died unmarried, having devised all her real and personal estate to- Frances, who, by her will, dated the 17th of September, 17^7) devised the said premises by the following terms: " all my estate called Coal-harbour, Whetstone, Ham, &c, to Try on Perkins for life; remain- der to Rebecca Price and Ann Owen ," she then gave all the rest and residue of her estate to the defendant Gibson, whom she made her sole executor. Tryon Perkins being dead in the lifetime of the tes- tatrix, this bill was brought by the plaintiffs to be quieted in their enjoyment of the real estate, and to have deeds and papers delivered up. The defendant Gibson, by his answer insisted, 1st, the ,£3500 was a charge on the estate, and part of the personal estate of Frances Aspley ; and 2dly, that the plaintiffs were only tenants for life. The Attorney-General (a), Mr. Wilbraham, and Mr. Bicknell, for the plaintiffs. Mr. Sewell for the defendant Gibson, and Mr. Perrot and Mr. de Grey for the heirs at law of Frances Aspley. (a) Hon. C Yorke. 116 CASES IN CHANCERY. 17«2. Price o. Gibson. [ # n7 ] This being a trust by way of security, it does not merge in the inheritance, Chester v. WiUes (a). In GwiU Urn v. Holland (6), 20th July, 1741, a daughter had a • charge of i?2000 on an estate, which descended to her in fee by her brother's death ; and there it was held, that it did not merge. For as it was said by Lord Hardwicke, in Hopkinsv. Hopkins, it is a rule in equity that mergers are not suffered in equity, where the legal estate is in trustees. Another rule in equity is, that a merger never takes place, except where the estates are co-extensive. Now, in the present case, with respect to the mortgage- money, the- daughters took nothing but an interest for life ; the principal was given to the children in cross re- mainders. Therefore, if the estate had been left after payment of debts, the whole would have been vested in Frances. And this sum of i?4000 was vested in her, so as to be divisible. ' As to the question, what the plaintiffs took under the will of Mrs. Aspley, there is nothing to show that it was not a life estate. There has been no case where the words " all my estate to A. for life, and after to 2?." have been considered a devise over in fee. No reliance can be had on the word estate ; it is a mere local description. The Lord Chancellor. This bill is in effect brought to determine two ques- tions : 1st. What interest the plaintiffs took in the real estate by Frances Aspleifs will ; and upon that point I am of opinion, that the plaintiffs took an estate in fee (e). (a) Amb.246. (b) Cit. ib. (c) It has been repeatedly settled, that the words " all my estate/' even though coupled with others, limiting them, in point of locality, or with previous express limita- tions for life, carry a fee. Holdfast v. Marten, 1 T. R. 411. Doe v. Burnsally 6 T. R. 34. Doe v. Wright, 8 CASES IN CHANCERY. The second question is, whether the mortgages are ♦now to be deemed discharged, or to remain as securities, and part of her personal estate, and go to the defendant, her executor: and upon that I am also clear that the estate is devised discharged of the securities (a). 117 T. R. 64. Doe v. Child, 1 N. R. 335. Roe v. Wright, 7 East, 259, vide post. Cave v. Cave, 145. n. (a) The doctrine as to the merger of charges was much discussed in Forbes v. Moffatt, 18 Ves. 384. " In most in- stances," as there observed by Sir W. Grant, « it is, with reference to the party himself, of no sort of use to have a charge on his own estate, and where that is the case it will be held to sink, unless some- thing shall have been done by him to keep it on foot." Vide Wyndham v. the Earl of Egre- mont, Amb. 753. Lord Comp- ton v. Oxendon, 2 Ves. jun. 261. As to the exceptions to the rule, vide Donisthorpe v. Porter, post. 162. 1762. Prick v. Gibson. [ *118 ] KNIPE v. THORNTON. (Reg. Lib. a. 1761. fol. 503.) 23d & 24th February, 1762. Robert Thornton, who was a freeman of the city of Covenants in the London, had three children by his first wife, viz. the m^^fYfree^ v plaintiffs, Jane, the wife of Nathaniel Knipe, Hannah, man of the city the wife of William Wilberforce, and the defendant, John t \ le husband Thornton. I ? i « ht . dispose of On his marriage with his second wife Jane Newby, by by will, and also indentures, bearing date the 26th and 27th of October, ™ at her e * ecu - 9 ° f . tors would re- 1733, reciting, that in consideration of a marriage to be lease and convey all her interest, &c. to the husband : held not to vary the general rule, that the children should be entitled to the benefit of a composition with, the widow. ?18 CASES IN CHANCERY. 1763. Knipe V. Thornton. [ «119 ] had, and for making a full and ample provision and join- ture for her in cases she should survive him, and in full bar, lieu, and satisfaction, as well of dower as also of all parts, shares and interest, claims and demands which she should, could or ought to have out of the personal estate of the said Robert Thornton, at the time of his death, by means of the custom of the city of London, or of the statute of distributions or otherwise, except what he might give her by deed or will ; the said Robert Thornton con- veyed the manor of Ottringham, in the county of War- wick, to trustees upon trust from and after his decease to the said Jane Newby for life, for and as her jointure, and in full lieu, satisfaction, and bar, as well of her dower as of all interest, claim and demand into and out of his personal estate as aforesaid. The deed contained the "following covenants from the said Jane Newby, First, That she would remain satisfied with the said jointure: Secondly, That she would not set up any claim or de- mand out of the personal estate of the said Robert Thorn- ton: Thirdly, That the said Robert Thornton might dispose of by will, and bequeath any part or share of his personal estate which she might otherwise have been en- titled to, in the same manner as he might have bequeathed any other part of his personal estate: Fourthly, She covenanted for herself and her executors, that she would release and convey all interest, claim or demand which she might have to the personal estate of the said Robert Thornton : and Fifthly, That in case she should survive the said Robert Thornton, she would not take out letters of administration to his personal estate. Robert Thornton had two daughters, Elizabeth and Jane, by his second wife ; and by his will bearing date the 29th of December, Vj4fJ, reciting, that he had ad- vanced i?4000 each to his daughters by his first wife on their marriages ; he gave them i?1000 each in addition. CASES IN CHANCERY. 120 and also gave £5000 each to his daughters by his second 1762* wife. IT*** . Knip* This bill was brought by the daughters against John v . Thornton^ the son, who was executor and residuary le- Thornton. gatee, for an account of the personal estate of the testator, and payment of their orphanage share. The Attorney-General and Mr. Wilbraham for the plaintiffs. The custom of the city of London is part of the ge- neral old law, and is of such force that it will in general get the better of covenants made in restriction of it, and control them ; nevertheless all voluntary acts, if done by the freeman bond fide, are good ; but if they are done with an intention not to strip himself, but to disappoint the custom, it is a fraud upon the custom, and inope- rative against it. Tomkim v. Ladbroke (a). All acts for valuable consideration in restriction of the custom are good: for instance, a covenant on the marriage of a daughter to release^ the customary part, is good, and falls into the general estate ; so also must an agreement before marriage that the wife must be barred of her customary share, and where the wife is compounded with, it shall be taken as if there was no wife, and her share shall fall into the estate. The attempt of the husband, in this case to purchase the wife's share, must be con- sidered as a fraud on the custom, and void as against the children. Hancock v. Hancock (J)). Rawlinsonv. Rawlinson, cit. 8 P. W. 644. Blunden v. Barker, 1 P. W. 634. Mr. Perrot and Mr. Sewell for the defendant. Mr. Thornton by the settlement became a purchaser of the wife's share ; and even supposing that, according to the general doctrine, a husband cannot control the (a) 2 Fes. 591. (b) Cit. 2 Fes. 592. 121 CASES IN CHANCERY. 1762. operation of the custom, yet the peculiar covenants of rT^ this settlement must be considered as effectuating that v . intent. The covenant enabling him to dispose of his Thornton, wife's share by will, proves that he must be considered as taking it ; and if anything be wanting to confirm that, the subsequent covenant on the part of her executors to release, places that construction beyond a doubt. The Lord Chancellor. The single question which arises in this case is upon the operation of the deed of 1733 ; and it is whether Robert Thornton is a purchaser in trust for himself of the wife's customary share, or for his children as well as himself; for it is agreed by the counsel on both sides, that if the settlement creates a composition or bar of the wife's customary share, it shall fall into the general residuum of the personal estate : and how that could ad- mit of much doubt I cannot see. The personal estate of a freeman is just the same as the personal estate of any other individual, and the custom is nothing more than a claim or debt upon it. If one claim be extinguished, the personal estate remains in its original nature, and subject only to lesser claims. The term composition with the wife, would, I think, be more correctly expressed by the words extinguishment or bar. However, the law of the city has fluctuated upon this point till of late years (a). (a) In Green v. Green, cit. wife was compounded with, it n. I P. W. 644. it was stated • should be taken as if there that the precedents had been was no wife, and the like was both way 8, but that the most held by Lord Hardwickc, solemn ones were against the Metcalfe v. Ives, I Atk. 63. children. In Pusey v. Des- Morris v. Burroughs, ib. 403. bouverie, 3 P. W. 315. how- & 2 Atk. 627. Read v. SneU, ever, it was determined by 2 Atk. 644. et vid. Pickering Lord Talbot ; , that where the v. Lord Slatnford, 3 Fa. 337- The CASES IN CHANCERY. 192 Let us first consider what was the intent of this agree- ment : and upon that point I am clearly of opinion that the husbands only view was to extinguish the wife's right, and to free his personal estate of the custom and the statute of distribution ; and as far as the statute extends, the settlement would operate as nothing more than an extinguishment. The recital too is very expressive of the intent, " for making a full and ample provision and jointure, and in full bar, lieu, and satisfaction, Sec." Much reliance, however, has been placed by the counsel for the defendant upon the covenants ; they are said to be executory in order to effectuate that in equity, which might be void at law as a release. Still I think they do not carry the case beyond the mere extinguishment of the wife's claim. It has been objected that the clause en- abling him to dispose of the wife's share by will, has made him a purchaser of her share ; but that can only operate as against the wife, and those claiming under her. The covenant to assign and convey to his executors has also been relied upon ; but I think that it can only apply to bring it more effectually into the general mass of the whole personal estate. Upon the whole I see no differ- ence between this particular case and the general rule upon the subject of composition. I am therefore of opinion that the deed of the 17th of October, 1733, was intended to operate, and did operate only as a bar of the widow's claim of her share under the 1762. Knipe v. Thornton. [123] The doctrine is the same in the case of advancement, of which, as observed by Sir W. Grant in Folkes v. TFi&rf- ern, 9 Ves. 460. " one should think, prima* facie, the effect would be to increase the part of the estate of which he would have power to dispose ; but it was held otherwise, that it had no effect except to remove that child entirely out of the way, and to in- crease the shares of the others." 183 CASES IN CHANCERY. 1733- custom of the city of London, and the statute of distri- jrTCtL bution ; and that in consequence thereof the testator's v. personal estate ought to be divided into five equalparts, Thornton. an< j eac |j to ^ gi ven to the five children ; but that the plaintiffs, claiming the custom of the city of London, ought to bring what they have respectively received by way of advancement into the orphanage part ; and that what they have received as legatees ought to be ac- counted for to the personal estate, they not being entitled to take both by the will and the custom. #f3- W. 2>h- CRESWELL v. CHESLYN. 8th March, 'f"» •/#.*** l ™£ (Reg. Lib. a. 1761. fol. 180.) Serj. HiU MSS. Testator gives Richard Cheslyn by his will, bearing date the 31st Sr^Steteto rtJvHr* l 7 58 > bequeathed to his brother Thomas Cheslyn, nis three and his two sons, Richard and Edward Cheslyn, X J 1000 and C. share and Bank stock, in trust, to pay the interest and dividend to share alike, as hfe eldest son, Peter Courtney Cheslyn, for his life ; and tenants in com- - _ . , n . . mon, and not as a " er his decease to transfer the same to such persons as joint tenants ; vov\A be entitled thereto by the statute of distribution ; but by a codicil m J •evokes C. from also i?1000 Bank stock in trust, for his daughter, Mary tees, and gives to his daughter, Sarah Creswell (the wife of the plaintiff cy^nstead7hddi ^ enr V Creswell), and her children, he gave and be- that this third queathed to his son Richard i?1000, part of his Bank to the two other stock, and to his son Edward <£1000, part of his Bank residuary lega- stock. After giving several annuities, and some specific tees, but shall go .7 . . . according to the *nd pecuniary legacies to his brother and his children, he statute of distri- g ave> devised, and bequeathed, all the rest and residue of his estates, real and personal, of what nature, kind, or CASES IN CHANCERY. 124 quality soever, which he should be any ways entitled to at the time of his decease, to his said sons Richard and Ed- ward, and his said daughter Mary Cheslyn equally, share and share alike, as tenants in common, and not as joint tenants. He appointed his brother, Thomas Cheslyn, and his two sons, Richard and Edward, joint executors of his will. By a codicil, bearing date the 27th of December, 1760, reciting, that he had made his will, and appointed his daughter, Mary Cheslyn, one of his residuary legatees, he revoked that appointment, and thereby gave her in lieu thereof the interest of i?500 New South Sea annui- ties carrying 3 per cent, to be paid to her half yearly by his executors during her life, and at her death the prin- cipal sum to be equally divided among her brothers and sisters ; and in all other things confirmed his will. The testator's daughter, Mary, died on the 17th of April, 1761, intestate, and on the 29th of the same nionth the testator died, leaving his said three sons and his daughter, Sarah his next of kin. This was a bill by Creswell and his wife, claiming to be entitled equally with the three sons to a distributive share of the i?1000 Bank stock, and £500 New South Sea annuities ; and that the testator having revoked the bequest of one third of the residuum of his estate, he ought to be considered as having died intestate with respect thereto, and praying that the same might be distributed between the next of kin. The Attorney-General and Mr. Jones for the plaintiffs. The devise of the residue of the personal estate was to the three children of the testator expressly as tenants in common : had one of them died in the lifetime of the testator, the share of that child would have been lapsed; so it is also if the share of one of them is revoked by the testator. In the present case the share of Mary Cheslyn 1762. CBB8WELL V. Cheslyn. 125 CASES IN CHANCERY. 1762. Cbbswell V. CHE8LYN. has been revoked, and the codicil makes no new disposi- tion of it. Mr. Sewell and Mr. Wilbraham for the defendants. The testator having appointed three residuary legatees, and afterwards revoked one of them, it is the same as if that one had never been named. It is an established rule that a codicil confirming a will is a republication, and the will and codicil make but one instrument; it therefore becomes the same as if the will was written over again and re-executed with the alterations in the codicil. Acherley v. Vernon, Com, Rep. 381. Potter v. Pot- ter (a). Here the codicil having confirmed the will, it is the same as if the testator had said that his two sons should be residuary legatees of his whole personal estate. By the will the testator meant to dispose of his whole estate, and the codicil shews no alteration of that inten- tion ; on the contrary, though it makes an alteration in the objects, yet it confirms the intention to dispose of the whole, and not to die intestate as to any part of his estate. The interest of the performance of j. j , . j jii» A o covenants, con- and since determined ; and also for an account, &c. tained in a lease The defendant demurred to so much of the bill as which had ex- sought to compel him to repair and amend the hedges hedges and man- and fences belonging to the premises, or to put the man- •wn-house, and sion-house and other buildings in repair, or to account for count of lop- the loppings, toppings, and hedges, which the defendant pi °g» and dun& had cut on the premises, or to account for the fodder and by the tenant; dung which he had removed, or to set up land-marks, mo ^^y e nants stones, and fences, and assigned as cause of demurrer, in husbandry not 1st That the plaintiff hath not shewn sufficient matter Q f equitable ji^ to entitle himself to any relief in this court, and 2dly. risdiction. That the remedy, if any, was at law. The Attorney-General 9 a,n& Mr. Wilbraham, for the de- fendant, argued, that the demurrer was well founded, the whole subject of the bill being matter of damages; and the lease being determined, made the argument the stronger in support of the demurrer ; for then nothing could be considered but the mere breach of covenant, a matter plainly determinable at law, and which ought not to be drawn to the jurisdiction of this court : that besides the lease being determined, there could be no specific repair, for the defendant could neither enter to repair, nor take botes for that purpose. That the whole was therefore plainly turned into damages, and, a pecuniary demand ; x 2 129 CASES IN CHANCERY. 1762. Rayner Stone. that the court could not judge of the repairs, having no officer to see whether they were made or not. Mr. Sewell and Mr. Coate for the plaintiff. This is a case of great consequence to all landlords ; a covenant to leave in repair being a covenant, which it is peculiarly important to have specifically performed, and a plaintiff is not, after a mansion-house has been destroyed, to be turned to law for a recovery of damages only. It seems impossible to say that the plaintiff can be entitled to no relief, for what is more common than bills for a specific performance of covenants to convey lands, of covenants for further assurance of contracts to build a house, &c. ? In the case of the Duke of Buckingham v. Ward (a), the thing to be done was the leaving a certain quantity of alum, and some other particular things, upon the pre- mises at the end of the term ; and in that case a specific performance was decreed, even before the term expired ; for, if Ward did not comply with his covenants, the works must stand still at the end of the lease. Here the de- fendant has agreed to repair, and he ought to perform his contract, and it is the business of a court of equity to enforce it. Shall it be permitted in equity to say, as an excuse, that you may recover damages at law, when damages are not adequate to the thing ? In the Duke of Somerset v. Cooksem, 3 P. W. 390, the duke brought his bill as lord of the manor of Cartridge, in Northum- berland, that the defendant might be decreed to deliver to him a plate of silver remarkable for a Greek inscrip- tion (dedicated to Hercules), and that, in the mean time, the defendant might be restrained from effacing the in- scription : the plaintiff entitled himself to it as a treasure- trove within the manor. Demurrer, for that the plaintiff (a) 3 Bro. P. C. Ed. Toml. 581. In the same manner a spe- bility of ascertaining the da- cific performance was refused mage done, or making com- of a covenant to make good pensation to the covenantee, a gravel-pit. Flint v. Bran* the courts have refused relief don, 8 Fes. 159. And on a against the lessor's right of like principle of the impossi- re-entry, for a forfeiture by Rayneb CASES IN CHANCERY. 130 had his remedy at law by trover or detinue: but over- 1762. ruled; for at law he can have only damages, and the plaintiff is entitled to the thing in specie ; and the defend- ©. ant is not entitled to narrow the matter of relief. Stonk. The Lard Chancellor. This bill is founded upon an equity so extremely re- fined that I cannot well comprehend it. If I should encourage such bills, it would introduce a practice most prejudicial to all landlords and tenants : especially to tenants, who, for the most part, are of mean and low circumstances. I am sure I shall never consider what are called common covenants in a lease as specific co- venants, to be subject to the jurisdiction of this court The covenants here are not at all of that specific nature. The argument which has been mentioned, that I have no officer to see the performance, is, to me, very strong. How can a Master judge of repairs in husbandry ? What is a proper ditch or fence in one place may not be so in another. It is said, that this is an equitable right ; and it is insisted that I should now put the plaintiff in a better state than what he can be at law : but the court has no jurisdiction to strip the defendant to try the supposed breach of covenant at law. Besides, how can a specific performance of things of this kind be decreed P The nature of the thing shews the absurdity of drawing these questions from their proper trial and jurisdiction. There- fore let the demurrer be allowed. 131 CASES IN CHANCERY. 1762. Rayner V. Stone, breach of such covenants, as to lay out money in repairs ; to insure ; not to assign with- out license, &c. Wadman v. Calcrqfl, 10 Fes. 67. Rill v. Barclay, 16 Fes. 402, and 18 Fes, 56. Bracebridge v x Buckley, 2 Price, 200. Rolfe v. Harris, cit. ib. 206. Rey- nolds v. Pitt, cit. ib. 212, S. C. 19 Fes. 134, which latter cases have overruled Sanders v. Pope, 12 fro. 282. See further, on relief against forfeiture, Northcote v. Duke, post. 319. Lord Thurlorv and Lord Kenyan were of opinion that a specific performance could not be decreed of a covenant to rebuild, as it was as un- certain as a covenant to re- pair. Errington v. Aynasly, 2 Bro. C. C. 343. Lucas v. Comerford, 3 Bro. C. C. 166, and 1 Fes. jun. 235. In the cases, however, of Holt v. Holt, 2 Fern. 322. Allen v. Harding, 2 Eq. Ab. 17, and the City of Landon v. Nash, 3 ^^. 512, 1 Fes. 12, Earl of Pembroke v. Thorpe, 3 SVpa. 437, n., such decrees were made : and in Moseley v. Virgin, 3 Fes. 184, Lord Rosslyn was of opinion, that if the transaction and agreement were in their nature suffi- ciently defined, there might not be much difficulty in de- creeing a specific performance. Fide also Wright v. Bell, 1 Daniel, 101. 24th March, 23d April, 1762. S.C. Coxe, MSS. To a bill to be relieved against an award upon suggestion of misbehaviour, &c. in the arbi- trators, a plea by the arbitrators of the submission and award, with an averment of impartiality, &c. overruled. RYBOTT v. BARRELL. (Reg. Lib. Min. Jpp. 1762.) The bill in this case was brought to be relieved against an award upon suggestion of misbehaviour in the arbi- trators, and for an injunction to stay proceedings at law upon the arbitration-bond. The defendants interested in CASES IN CHANCERY. 131 the award put in their answer, and the injunction prayed was refused on motion upon the merits ; and now the ar- bitrators plead in general the submission and award ; and for plea further say, that they made their award of and concerning the premises to the best of their judgment, truly, honestly, and impartially, without favour or pre- judice to either of the parties. The Attorney-General, Mr. Sewell, and Mr. Altham, argued, in support of the plea, that arbitrators are to be favoured, and that to put them to answer long fictitious charges would be not only a great vexation, but would likewise be laying open the whole matter again as much as if there had been no submission or award, and would be, in effect, to draw the matter submitted from the judgment of the arbitrators to the jurisdiction of this court. Godfrey v. Bercher, 3 Vin. Ab. 139., where the bill was for an account, and to impeach an award touch- ing a partnership in buying and selling diamonds in France, in 1719, and the bill was against the arbitrators as well as the party, and the defendant. The party, as to the account, pleaded the award, and that by consent it was made an order of court. The Lord Chancellor allowed the plea. Mr. Perrot, Mr. de Grey, alid Mr. Cotce, for the plain- tiff. The plea is bad as deciding nothing ; for suppose it allowed, replied to, and proved, it does not determine the question ; for the bill supposes and admits the award, and the prayer of relief is grounded upon a charge that the award was unduly made, as founded on partiality, misbehaviour, and apparent mistakes in the arbitrators; the plaintiffs, therefore, ought not by such a plea to be shut out from making out their case in evidence, for, if the plea is allowed, the court, at the hearing, upon a re- plication to the plea, could only consider the fact of the 1762: Rybott V. Barbell. [132 ] 132 CASES IN CHANCERY. 1762. Rybott v. Barbell. [133] plea, which is a matter not controverted. The rules of pleading in this court are very different from the rules of pleading at law ; at law you may traverse anything ma- terial to the plaintiff's case, but here every plea must go to the whole of the plaintiff's case. Suppose a bill brought to be relieved against a decree charged to be obtained by fraud, it surely could be no defence to plead the decree itself. So of a release, &c, and in Corneforth v. Geer, 2 Vern. 705, it was held, that if it appears that arbitrator^ went upon a plain mistake, either in law or fact, it is an error sufficient to set aside the award ; but the plea in the present case is plainly conclusive to nothing, the question not being whether there was a submission and award, but whether the award was duly made. As to the case of Godfrey v. Bercher, it was as Mr* Attorney states it, but there was this further on it, which makes it a case in point for the plaintiff, that the arbi- trators pleaded the submission and award, , and that by consent it was made an order of this court ; but the Lord Chancellor overruled the plea of the arbitrators, as co- vering too much, vix. several particulars, which might tend to shew partiality, &c, in their proceedings. Be- sides, in a subsequent case of Potter v. Day, which was before Lord Talbot, Mich. 1734s where the bill was, as in the present case, to be relieved against an award, and an action at law on the submission-bond, and the defend- ant pleaded the submission and award : but the plea was overruled because it covered too much, for the plaintiff is, in all events, entitled to relief against the penalty of the bond, though the merits are with the defendant. The Lord Chancellor. I look upon it as a notorious fixed rule, that the party grieved by an award may come into this court for relief, both against the arbitrators and the party, and I have CASES IN CHANCERY. 133 called upon the defendant's counsel to shew any case to the contrary, which they have not been able to do. The answer of the arbitrators in a case of this kind is the more material, because, as I take it, the answer of the arbitra- tors may be read against the other parties, who may know nothing of the misbehaviour of the arbitrators ; and it would be absurd to say, that the arbitrators should be at liberty to plead their own award, in order to cover their own misbehaviour. The equitable spirit and intent of the submission is plainly this, if you do so and so, I sub- mit, but not otherwise : and it is a maxim of law and common sense, mm valet exceptio ejusdem rei cujus pe- titur dissolutio. I do not say that arbitrators are to an- swer precisely as other defendants are, but yet they ought to answer material charges, and not cover themselves by their own act. Plea overruled. 1762, Rybott V. Barrbll. [134] Where an award has been made a rule of court, under the 9 and 10 W. 3. c. 15, the jurisdiction to set it aside is confined to the court of which the submission is made a rule. Nichols v. Chalie, 14 Fes. 265. Gwinnett v. Bannister, ib. 530. v. Mills, 17 Ves. 419. Stiff v. Andrews, 2 Mad. Rep. 6.; vide also Goodman v. Sayers, 2J.&JV. 249. Auriol v. Smith, 1 Russell, 121. And it has been laid down that a court of equity has no jurisdiction to relieve against the award, where one of the terms of the agreement to refer was, that the submission should be made a rule of a court of common law, although it has not been so made within the time limit- ed by the statute. Davis v. Getty, 1 &&&4U. 134 CASES IN CHANCERY, 12th & 13th June, 1762. S.C. Cit 2 Bro. C. C. 414. CLARKE v. SWAILE. Et i contra. (Reg. Lib. Min. App. 1762.) Purchase from his client by a solicitor, who was also trustee for the sale of the estate for payment of debts confirmed, upon the ground of his having attempted inef- fectually to sell, of there being no fraud in the transaction, and of the purchase having been re- cognized and ap- proved of by the cestui/ que trust. [ *135 ] The bill in the former of these causes was brought by Sir Robert Clarke, to set aside a purchase made by the defendant Swaile, from his brother Sir Samuel Clarke, and to hare the deeds delivered up, &c. ; the cross bill was to establish the purchase. The late Sir Samuel Clarke was, in the year 1746> * seised of estates in Cambridgeshire and Suffolk, which were much incumbered, and he had become, in conse- quence of his embarrassments, much involved in law- suits. The defendant Swaile was at that time first em- ployed by him as his attorney and solicitor, and agent. In such capacity he recommended Sir Samuel to sell a part of his estate, and pointed out the manor of Bram- lingham in Suffolk, as a proper part to be sold. Accordingly, by indenture, bearing date the 27th and 28th of July, 1753, the premises were conveyed to Stvaile and his heirs upon trust to sell, and to retain out of the purchase-money so much as would pay him for his trouble, and then pay off certain incumbrances therein mentioned, and that the residue of the purchase-money should be subject to Sir Samuel Clarke\ appointment. It appeared in evidence, on the part of the defendant Swaile, that he had exerted himself considerably to sell the estate, but that he had not been able to meet with a purchaser. By articles, bearing date the 22d of November, 1753, CASES IN CHANCERY. 135 Swaile agreed to purchase the premises for himself, and Sir Samuel covenanted to convey to him, on or before the 25th of December then next. By indenture, bearing date the 6th of February, 1754, the premises were conveyed to Swaile : another deed, bearing date the 2d of March, 1754, was executed in consequence of a misdescription of the estate; and a third, bearing date the 15th of March, 1755, in conse- quence of a variance of the boundaries, to which the present plaintiff was a party. Sir Samuel died in No- vember, 1758, three months after the filing of the bill : the suit was revived in May, 1760. Mr. Sewell and Mr. de Grey for the plaintiff; the At- torney-General and Mr. Perrot for the defendant. The Lord Chancellor said, that he did not like the circumstance of a trustee dealing with his cestuy que trust. That he thought, however, the objection so much relied on, that Mr. Swaile had not conducted the trans- action with sufficient publicity, had not been made out That, upon the whole, he did not see any principle upon which he could set the transaction aside. His Lordship relied also upon the circumstance of Sir Robert Clarke having recognized Mr. Swaile as lord of the manor of Bramlingham (a). Both bills dismissed. 1762. Clarke v. Swaile. [136] (a) It does not appear distinctly in what manner this took place. Lord Rosslyn had enter- tained an opinion that a sale to a person in the situation of trustee, should only be set aside where an advantage had been made by him. Whichcote v. Lawrence, 3 Ves. 740. Ex parte Reynolds, 5 Fes. 707* This doctrine has, however, since been disavowed. A cestuy que trust may, indeed, by a new contract, dismiss his trustee 196 CASES IN CHANCERY. 1762. Clarkjb V. SwAILE. from that character, and if the obligation which attaches to the trustee, as such, be com- pletely shaken off, he may buy ; but even then the transaction will be watched with the greatest jealousy. But if it does not satisfactorily appear that the connection was dissolved, it is in the choice of the cestuy que trust to take back the property, whether the trustee has made any advantage of it or not. Fox v. Mackreth, 2 Bro. C. C. 400. 2 Cox, 158. 4 Bro. P. C ed. Toml. 258. Camp- bell v. Walker, 5 Fes. 678. M'Enzie v. York Buildings' Company, 8 Bro. P. C. ed. Toml. 42. Gibson v. J eyes, 6 Ves. 266. Ex parte Hughes, ib. 617. Ex parte Lacey, ib. 625, and the cases cited in the notes. Ex parte James, 8 Ves. 337. Coles v. Treco- thick, 9 Ves. 234. Ex parte Bennett, 10^.381. Morse v. Royal, 12 Ves. 355. Lowther v. IA. Lowther, 13 Ves. 95. Cane v. Ld. Alien, 2 Dow. P. C. 289. Attorney-General v. Ld. Dudley, Coop. Rep. 146. Webb v. Rorke, 2 Sch. and Lef. 661. Dowries v. Grazebrooke, 3 Meriv. 200. Long acquiescence under a sale to a trustee, is evidence that, as between the trustee and cestuy que trust, the rela- tion had been abandoned, and that in all other respects it was fair. Campbell v. Wal- ker, cit. sup. Parker v. White, 11 Ves. 226. Webb v. Rorke, cit. sup. But the mere circumstance of the re- lation having been abandoned, is not sufficient. The transac- tion must also be fair, as the situation of the trustee gives him the means of knowing the value of the property better than the cestuy que trust, and he acquires that knowledge at the expense of the cestuy que trust. 11 Ves. 226. CASES IN CHANCERY. 137 BASKETT v. CUNNINGHAM. nth June, 1762. (Reg. Lib. a. 1761. fol. 337.) m . 4* 7 o. This was a bill brought by the king's printer for an Upon a bill injunctionagainstthedefendants, Cunningham and others, k„!^ printer to to restrain the publication of a book containing several restrain the de- * i* . 1 1 a a ^. y. fendant from the statutes, or acts of parliament, entitled, " A Digest of publication of the Statute Laws, containing the statutes at large, from cer Jf in ^ ? f ° parliament, &c, Magna Charta to the end of the last parliament in 17&), to which the in alphabetical order, together with such cases deter- P"*«jtee»fo* r » © printing law mined thereon as are necessary to explain them. By books were also T. Cunningham, esq. Vol. I." The statutes were disposed JJj^SiJ^ and methodized under different heads, with large notes interfere be- tween the con. and references at the beginning and end of each statute tending patents, #or title, and in the margin. and therefore The defendant Cunningham, had contracted with the defendant Strachan and Wood/all, the proprietors of the patent * om Panting at . . any other than si for printing law books, and it was printed at their press : patent press, they by their answer disclaimed all property in the work The Attorney-General, Mr. Sewell, Mr. de Grey, and Mr. Comyn, in support of the injunction. In the late case of Baskett v. the University of Cam- bridge (a), the right of the plaintiff has been established exclusive of all other persons not authorized to print the same by prior grants of the crown. The notes sub- joined to the present work are collusive, and calculated merely to shelter a pirated edition of the statutes. Mr. Perrot, Mr* Blackstone, Mr. Wilbraham, and Mr. Wedderburne, for the defendants the publishers. (a) Burr. 661. 1 BL Rep. 105. 138 CASES IN CHANCERY. 1762. This book is not within the meaning of the letters Basket patent, being a work of labour and industry, and in a v. method entirely new. But, independently of that consi- Cunningham. deration, there can be no ground for an injunction with- out determining the respective merits of the two inter- fering patents, both of which are sanctified by long usage. Though the law patentees in their answer disclaim any property in the work, and therefore the plaintiff does not seek an injunction against them, yet an absolute injunc- tion cannot be granted against the proprietors without virtually including the law printers, for if they are forbid to print anywhere, they are also forbid to print at their press. Mr. Sayer for the defendants Woodf all said Strachan. The Lord Chancellor. I am of opinion that this work is entirely within the patent of the king's printer* and that these notes are merely collusive. But I shall not interfere between th^ two contending parties by the summary method of in- junction, but leave them to adjust their rights in a due course of law. The injunction must therefore be to restrain the proprietors from printing at any other than a patent press (a). (a) It is observed by Mr. edition of the statutes, that Justice Blackstone, that as this was equivalent to a total Woodfall and Strachan were injunction ; the law printers secretly in league with Bas- finding means to evade their ketty and were at the time contract with Cunningham. jointly concerned in a new In the case of the Univer- bridge v. Richardson, 6 Vcs. sities of Oxford and Cam- 689, upon a bill brought by CASES IN CHANCERY. 139 the Universities to restrain join, but was made a de- 1762. the sale in England of bibles, fendant, there being no doubt _ &c. printed by the king's of the illegality of what the v printer in Scotland, an in- defendants were doing. Vide Cunningham. junction was continued to Osborne v. Donaldson, post the hearing, though the king's 327* printer in England did not 14th May, & CAVE v. CAVE. ffiS&KS 9th July, 1762. {Reg. Lib. a. 1761. fol. 406.) S. C ^ J Aston, MSS. George Cave, the father of the plaintiff, by articles A - **"?& a 8 reed to purchase a bearing date the 13th of November, 1757) entered into real estate, the an agreement with the defendant Rushworth, for the ^^S!^ 7 purchase of certain lands in the parish of Desborough, ceeded the in the county of Northampton, for the sum of ,£2200. J^onal°itate, Possession was to be delivered up on or before Lady- by his will, made m a few days after- day then ensuing. wards> ^ted On the 22d of the same month he made his will, by three wit- nesses, as to all whereby he expressed himself in the following manner : the worldly " As for all such wordly goods as it hath pleased God gf £%£% U d %* to bless me with, I dispose thereof as follows :" he then bless Mm with, gave and bequeathed unto his wife, the defendant Mary, SJ^^J to"hb and his two sons, George (the plaintiff), and William wife and two Cave, all his goods, cattle, chattels, and personal estate, g^Jg catt i e and effects whatsoever, so long as his said wife should chattels, per- continue his widow ; but if it should happen his said effects whatso- ever; and in case they died without issue, &c. gave the children's share of the personal estate and effects over : testator dying before the purchase could be com- pleted : held, that the agreement ought to be specifically performed; and that the words of die will, being insufficient to comprehend real estate, the estate ought to be conveyed to the eldest son and his heirs, Sec 139 CASES IN CHANCERY. » 1702. wife should marry again, then he gave her only her own ^7*71 fortune again, to be at her own disposal, and all the re* Vm ridue of his goods, cattle, chattels, personal estate, and Cays. # efifects whatsoever, he gave and bequeathed to his said [ *140 ] sons, George and WiUiam ; but in case his said sons should die before they attained their respective ages of twenty-one years, and unmarried, and without issue, then he gave and disposed of their shares and parts in the personal estate and effects to be divided amongst his own brothers and sisters, and their children. The will was attested by three witnesses. Soon afterwards, and before the agreement could be performed, he died, leaving the plaintiff his eldest son and heir at law. The present bill was brought to have the agreement carried into execution, and the land settled to the use of the plaintiff. The widow and the younger son insisted by their answer, that they were entitled to an equal share of the land with the plaintiff. It had been referred to the Master to take an account of the personal estate of the testator at the time of his death, who reported, that after deductions for expenses, &c, it amounted to £2005 13s. 10d., being less than the sum agreed to be paid for the purchase-money. It now came on for further directions. The Solicitor-General and Mr. Caldecot for the plaintiff. There are two questions arise upon these facts. 1st. Whether this is not real estate ; and 2dly. Whether, if it is so, it is devised by the words of this will. Upon the former point, since the case of Lingen v. Sowray> 1 P. W. 172, there can be no doubt but that it must be considered as land ; the only question, therefore, is, are the words sufficiently extensive to comprehend real estate ? The most extensive words are, " all my worldly goods." In Tanner v. Wise, 1 P. JV. 7*> H was said in- CASES IN CHANCERY. 140 deed, that a devise of all my worldly estate would pass a fee, but that determination turned upon the subsequent technical terms, the rest of all my goods, estate, and chattels whatsoever, real and personal. In the present case there are no exclusive words, as there were there, which designated the real estate. Wilkinson v. Ferry- land, CJro. Car. 447, was tike ^is, * devise of " personal estate and effects ; " but it was held, that the adjective extended to both. In Piggott v. Penrice, Prec. Can. 471, the testatrix expressed herself thus : " I make my niece executrix of all my goods, lands, and chattels ;" but even though the word land was used, the court held, that the real estate did not pass. Mr. WiUbraham and Mr. Ambler for the defendants. This is a case of very great hardship : the meaning contended for contradicts the testator's intention, which is so clearly expressed, and tends to the total disherison of his wife and child. Though the common equity in cases of contracts for purchase, where one of the parties dies, be that the contract shall be executed specifically, yet there may be cases where the circumstances will rebut that equity. So in an anonymous case, 2 Ca. Ch. 17* the court would not decree an agreement, because it was unreasonable ; and in Bromley v. Jeffereys, Prec. Can. 138, the court said, that a court of equity is not obliged to decree a specific performance of all covenants or agree- ments, but will consider all circumstances, and actually refused to decree specific performance of an agreement. But even supposing that this agreement must be exe- cuted, there is nothing which shews that the testator did not mean the land to pass by this will. It is attested by three witnesses, which shews that he thought he was de- vising land (cr). His personal estate, after payment of (a) See the remarks on Serj., in Roe v. Yend, 2 N. R* this argument/ by Bay ley, 220, citing Trent v. Harming, VOL. II. I* 1762. Cave v. Cave. [141 ] 141 CASES IN CHANCERY. 1762. Cave v. Cave. [ *142 ] {he purchase-money, would have been totally exhausted", and besides, it is not so large but that he must have been •aware of that circumstance ; and yet, ten days after making this agreement, he executes his will, and leaves all his worldly goods to his wife for life, and, if 6be marries, her portion of £250. As Mr. Ruahforth will exhaust the personal estate, these legacies must be charged on the real, and it will not be a sufficient objection that they are particular legatees. The Solicitor-General in reply. If a distinction cannot be found, the authorities must be adhered to. The first question is, was this in equity a real estate at the time of making the will ? In equity, articles for a purchase must be carried into execution, as well for the heir as for the ancestor ; and as to the objec- tion of the want of money to complete the contract, the court can supply that by directing a mortgage. 2dly. Does this land pass by the will ? The words are not sufficient to indicate any intent ; there is nothing that al- ludes to real estates ; the limitations, though applicable to them, are not more so than to personal. As to the third question, the marshalling the assets, that is exclusively confined to debts and legacies, and cannot in the least ap- ply to the present case. The Lord Chancellor. This bill is brought by the plaintiff, an infant, the eldest son and heir of George Cave, deceased, against the widow of the testator, WiUiam, the younger son, and several others, claiming under the will of George Cave, and the representatives of Rushworth, who had articled with George Cave for the sale of his estate in Besbo- 1N.R.1 16, and 7 East, 97, Blanc, J., in Doe. v. Bring, and the observation of Le 2 M. and S. 458. CASES IN CHANCERY. 142 tough, to him by articles executed the 12th of November, 1757? on which articles he insists in his answer, and had in the most effectual manner, on his part, carried the ar- ticles into execution, he having quitted the possession of the estate. Now, articles for a purchase, if fairly entered into, have, in this court, a strict and original right to be spe- cifically performed, because both the parties, at the time of entering into them, intend to change the qualities of their property, and in the general transactions and sense' of mankind, on executing the articles, the purchase id considered as completed, provided a good title can be made, and the conveyance is taken as consequential. And taking it in this light as an intention of changing property, the same right exists as to a specific perform- ance between the reciprocal representatives, as between die respective parties, and it is unnecessary to cite the authorities that warrant this rule. It was said, in the course of the argument, that, in a hard case, such as this is, the court would not decree a specific performance, and the case of Bromley v. Jeffereys was cited. But it is necessary to distinguish between a hard contract and a hard case. In the first, equity, which is a court of conscience, may refuse its assistance, but any hardships that arise from the execution, to one of the parties, is independent of the other, and ought not to affect them. And therefore the reason for not decreeing a specific performance in Bromley v. Jeffereys, was, that the contract was uncertain, and not mutual. But in this case there is no impeachment of Mr. Rush worth's con- duct in this treaty ; it was, for aught that appears to me, a fitfr and equal bargain. And as he is a party to the suit, and insists on his contract, were there any difference between his right and that of the heir, which I do not l2 17«2. Cavb v. Cave. [143] 143 CASES IN CHANCERY. 1762* think there is, no advantage could in this case be taken ^"^ of it. Cave v . This equity, therefore, was so clear, that little waa Cavb. urged against it, and the principal labour of the de- fendant's counsel was, to claim under the will of the testator. [ 144 ] The testator made his will the 22d of the same. No- vember, ten days after, and gives all his goods, cattle, chattels, personal estate, and effects whatsoever, to his wife and his sons, George and William, so long as his wife should continue his widow, but, if she marry again, only her own fortune. All the residue of his goods, cattle, chattels, personal estate, and effects whatsoever, to his sons, George and William, and if they die before twenty-one, unmarried, and without issue, then he gives and disposes their share in the personal estate and effects to be divided between his brothers, and sisters, and their children. • Now, the personal estate being somewhat less than the purchase-money, and the contract having converted that into realty, unless the interest acquired passes by the will, the other child and the mother are totally unpro- vided for, which is repugnant, not only to the import of the will, which may often happen in case of insolvency, but to the capacity of the testator. And in this respect the case is singular, a case of commiseration, and there- fore very disagreeable in the determination. The first question, then, on the will is, whether the testator has used words to manifest his intent of passing this interest by the will ? If such intent is manifest from the will, it signifies nothing in what mode it is expressed ; it is the duty of this court, and of a court of law, to give it effect. But to collect such intent, unwarranted by the words, upon consideration of the testator's circumstances, CASES IN CHANCERY. 144 would be a dangerous example ; and to pronounce that 1762. a testator intended so, because he ought so to have ex- c pressed himself, though he has not, would be rum jus v . dare y sedjus dicere. Cave. The most extensive words laid hold on for the defend- ants, are, " And for all such worldly goods as it hath pleased God to bless me with, I dispose thereof as fol- lows." Now, though I have consulted all the authorities [ 145 ] cited, and others, I find none to justify me in extending that expression to a real estate, and yet those are but words of introduction in the will (a). The words of de- vise and bequest are words of enumeration, " goods, cattle, chattels ; " collective words, as " personal estate, and ef- fects whatsoever." The words of enumeration certainly do not comprehend realty ; " personal estate " cannot ; and " effects whatsoever ", by natural and correct con- struction, must be applied to matters ejusdem naturae^ and without violation of established rules of law, the last words cannot be applied as general words to things of a superior nature to those particularly specified (jb). I have (a) It is observed by Lord 8 T. R. 64. Doe v. Allen, ib. Ellenborough, in Doe v.Lang- 497- Doe v. Child, 1 N. R land, 14 East, 372, "that very 335. Doe v. Clark, 2 N. R. little inference of intention 343. Doe v. Clayton, 8 East, can be drawn from mere words 144. Goodrigkt v. Barron, of introduction ; though we 11 East, 220, overruling Ib- certainly find them in some betson v. Becktvith, For. 157, / l cases called in aid to shew and Maundy v. Maundy, that a man did not mean to Stra. 1020, Ridg. 142. die intestate, as to any part (b) See as to this, Time- of his property. See more well v. Perkins, 2 Atk. 102. upon this, Loveacres v. Blight, Roberts v. Kiffin, ib. 113. Cowp. 356. Denn v» Gas kin, Moore v. Moore, I Bro. C. C. t'6.657. Right v. Sidebotham, 127 Doug. 759. Doe v. Wright, 145 CASES IN CHANCERY. 1762. Cave v. Cave. [146] pondered on the words, to see if any justifiable transpo- sition of them would indicate an intent of passing the realty. I can find none. I then endeavoured to ac- commodate the pointing to such an intent, and would have read it, " All my goods, cattle, chattels personal, — estate and effects whatsoever" (a). But this appeared to me to be a violation of the context, for it would exclude chattels real, and besides, " personal estate" is used as nomen collectivum, and the most general term to com- prehend that kind of estate. But what seems decisive of the intent on the will, and excludes all strained construction to serve a good pur* pose, is, that in the limitation over, where the testator resumes all he had before given, he calls it " the child- ren's smjre of the personal estate and effects." For these reasons, therefore, I am forced to be of opinion that the testator has not expressed himself in this will so as to indicate his intent of passing the interest he acquired under the articles. It was further contended, that the defendants might stand in the place of Mr. Rushworth, as creditors on the estate to be conveyed by him for so much as is exhausted of the personal estate to make good the purchase ; but (a) For the doctrine upon this subject, and the applica- tion of the terms estate, pro- perty* e ff ecis f an d similar ex- pressions to real estate, vide Mr. Car's note to Barry v. Edgetvorth, 2 P. W. 523. Hogan v. Jackson, Cowp. 399. Huxtep v. Brooman, 1 Bro. C. C. 437. Doe v. But- ' fcr,6T.R.610. Doev. White, 1 East, 33. Camfieldv. Gil- bert, 3 East, 516. Doe v. Lainchbury, 11 East, 290. Roe v. Yeud, 2 N. R. 214. Doe v. Lan glands, 14 East, 370. Doev. Trout, 15 East, 394. Doe v. Dring, 2 M. & S. 448. Barnes v. Patch, 8 Fes. 604. Woollam v. Kenworthy, 9 Fes. 137. Nichollsv.Butch- er, 18 Fes. 193. Doe v. RouU 7 Taunt. 81. Doe v. Hurrill, 5 M. & S. 18. CASES IN CHANCERY. 146 this is a position neither to be applied, nor answered ; for 1762. if it means anything, it is applicable to every case, and Cave the legatee of the personal estate might say the testator v. shall not have power to lessen my funds. Cavb. Upon the whole, the case amounts to this : the testa- [ 147 ] tor, having converted his personal estate into real, and made a will which reaches only to personal estate, has left his wife and younger son unprovided for, though he certainly meant them a provision. It is probable, too, that he thought this will would pass his new-acquired interest, but that is by no means certain. It is pretty difficult for men not of a mercantile education, and con- versant in accounts, to have very correct notions of their personal estates : very many men have extremely inade- quate notions of them, and therefore I have always thought with a very great judge, that it is dangerous to travel into men's circumstances in order to interpret their wills. It is a bias to the judgment of the court, and diverts the intention from what men have done, to what in like circumstances, the judge himself would have done (a). I must therefore declare the articles well proved, and duly executed, and that they ought to be carried into execution, and that the personal estate be applied as far as it will go in payment of the purchase-money ; and that on payment thereof, or of so much as the personal estate will extend to pay, and on the residue, with the costs of all parties, being raised by mortgage, with the ap- probation of the Master, the estate, subject thereto, be, with the like approbation, conveyed to the infant and his heirs. (a) As to the point of in- of testators, vide note ante, quiries into the circumstances Vol. I. p. 44. 147 CASES IN CHANCERY. 1762. The Attorney-General hoped the court would order q^L the Master to see what was proper to allow the mother v. for maintenance of the plaintiff, her infant son, and direct Cave. him to make a liberal allowance, out of which she might [ 148 ] support herself and her younger children. But the Lord Chancellor said it was consequential on the bill. Am- bler then insisted that the widow would be a creditor for the i?200 she brought in marriage. The Lord Chancellor. There is no pretence for it. If, indeed, the will had taken effect, and there had been sufficient, she was, in case of a second marriage, to have the fortune she brought repaid her, but that was to be out of what was bequeathed. June? 3 9 d th & Jd* INWOOD v. TWYNE. 1762. Amb. 5 7 ? (*'* Lib. a. 1761. /o/. 630.) Aiton MSS. Where part of Colonel In wood, upon his marriage with the plaintiff, an infant's real ente red into articles, 3d June, 1732, to settle his estate estate was settled ,.,,.,. -../» . in jointure upon on himself for life; remainder as to certain premises, whVbei her dis- P art tllereo ^ t0 Mrs - Inwood f° r life for her jointure, with tressed, and remainder as to all the premises to his first and other sons Lterest°apeti- r * n ta ^ ma ^ e > w ^^ remainder to his own right heirs for tion was present- e veT. Colonel Inwood died in 1746* without having fant, upon a re- carried the articles into execution, leaving the plaintiff ference to the Master, and under an order of court, purchased it : she afterwards attained twenty-one, received a year's rent, and died : held, that the purchase, though made during infancy, was to be considered as real estate. CASES IN CHANCERY. 148 his widow, and an only daughter, Caroline Anna Maria, an infant Upon his death the plaintiff entered upon the jointure lands, and afterwards being in distress, by indenture of lease and release, bearing date the 15th and 16th of April, 1755, between the plaintiff of the first part, Thomas Bigs, and three of her creditors, of the second part, and three other creditors of the third part, con- veyed her jointure lands to them, their heirs and assigns, during her life, upon trust to sell. The creditors being about to sell, a petition was pre- sented by the infant and her uncle at the Rolls, setting forth, among other things, the assignment of plaintiff, and advertisement of sale ; that such sale would be of great prejudice to her ; and that her nearest relations ap- prehended that it would be for her advantage to pur- chase ; that the mother, her next of kin, desired it, &c. Upon a reference to the Master, it was reported that it was her interest to purchase the estate, in regard that she had the reversion; and the mother, the next of kin, desired it, for the sum of jPIIOO ; and on the 13th of April, 1756, the trustees, in consideration of J&1100, coQveyed and released the premises to James Bridges, his heirs and assigns, during the life ofAnnabellalnwood. 7th July, 1706, James Bridges, for himself, his heirs and assigns, declared the purchase money to have been the proper money of the infant ; and declared the trust to be for her benefit generally, without adding any words of limitation. The daughter came of age on the 28th of March, 1760, and afterwards gave a letter of attorney to one Collett to receive the rents and profits of the estate : she died 22d of March, VJ&2, unmarried. The bill was filed by the plaintiff, as administratrix to her daughter, 1762. Inwood v. TWYNB. [149 J 14* CASES IN CHANCERY. 17®* for An account of the rente and profits ef the jointured «. estate. Imroon t). Wilbraham and Comyn for the plaintiff. T#t*ra. The question is, whether this interest belongs to the plaintiff as personal estate, or to the heirs by being merged in the inheritance ? In the present case there is no merger at law, and there never is a merger in equity where there is none at law. Thomas v. Kemys, 2 Vern. 348. so in GwiUam v. Holland (a), cor. Hardivicke, C. [ 150 ] 1741. The money with which this interest was purchased being the infant's, the interest continued personal estate till she came of age ; and as she did nothing afterwards to alter the nature of it (for receiving rents alone did not mate it real), it continued so till her death. There is no rule more certain than this, that guardians or trustees cannot alter the nature of an infant's estate. Awdley ▼. Jwdley, 2 Vern. 191, Mason v. Mown, 1725 (6). As to her acts after she came of age, they only consisted in her receiving money which might have been either of real or personal estate. Stetvell and Perrot for the defendants. It is nowhere laid down in 6uch universal terms as that there is no case in which guardians or trustees can alter the nature of an infant's estate, particularly where it is so much for the advantage of the infant, as it is in the present case. That the court has power to do it may be collected from the case of Earl of Winchelsea v. iVor- cliffe, 1 Vern. 434. In this case the infant applied, on the event of the mother's assignment, to have it convert- (a) Cit. ante, 116. Annandale v. Marchioness of (6) l%i8 was the Norfolk Annandale, 2 Ves. 384. vide case, mentioned by Lord 1 Ves. j*m. 467- Hardtcicke in the Marquis of CASES IN CHANCERY. 1W ed ; and upon such application an order of this court was 1702. founded. After all, it is admitted, that on her coming i^ZZ** of age she received the rents and profits, and executed a v. power of attorney, which was a confirmation of the pur- Twyn*. chase of the real estate. On the 25th of June, as the Lord Chancellor wa* sith June, proceeding to give judgment, WUbraham desired to be y# heard again ; the cause was accordingly put off to the 9th of July, when, in addition to his former arguments, he relied on the constant practice of the court in similar eases not to alter the nature of an infant's property ; as where there is a charge by a term of years on an infant's [ 151 ] estate, and it is discharged out of his personal estate during his minority, the court never permits the term to merge, but orders it to be assigned to a trustee for the infant, his executors, &c. ; so in the case of Lord Leigh, where, by savings or otherwise, the trustees were enabled to purchase several farms which lay contiguous; the pur* chases having been made with the approbation of the dourt, there was an express provision, that if he died under twenty-one it should be deemed personal estate. So in a private act of parliament for purchasing during die minority of Lord Plymouth, it was to him and his executors, &c. till twenty-one, with a proviso that on his attaining twenty-one, he may call on the trustees to con- vey to him and his heirs. Walter v. Walter, 3 P. W.9& ' The Lord Chancellor. You need make no apology for desiring to speak to this matter a second time, as so important an interest of your client depends upon the question. The question arising upon this bill is, whether Mrs. In&ood, the plaintiff, as administratrix of the daughter, 151 CASES IN CHANCERY. 1763. Inwood V. TWTNB. [152] is entitled to the profits of these farms for the life of Mrs* Inwood, as part of the personal assets of the daughter ; or the defendants, as her heirs ? The case in effect is no more than this : 3d* June, 1732, Mr. Inwood articles to settle his estate, as far as concerns the present question, on himself for life ; remainder to his wife for life ; remainder to his first and other sons in tail male, with reversion to himself in fee. Mr. Inwood dies, leaving one only daughter, and, 16th April, YJ5o, Mrs. Inwood conveys by lease and release this estate of hers to Mr. Bigs and others, and their heirs, for the benefit of themselves and the rest of the creditors. The creditors propose a sale of this interest, in order to turn it into money. Upon this it appears, by order 26th March, 1756, that a petition was preferred on behalf of the in- fant, with the consent of her mother, her only next of kin, signing the petition, suggesting that it would be for the infant's benefit to purchase, and have the purchase money paid out of the personal estate ; and praying a reference to the Master to inquire into the fitness of the proposal, and to have the money paid by the Accountant- general out of her stock, amounting to 9 or ,£10*000. The Master approves the purchase, appoints a receiver of the real estate pursuant to the decree, and takes an additional security, in consequence of the augmentation of it by this purchase. 31st March, 1756, Mr. Bigs and the other grantees convey to Mr. Bridges and his heirs the very estate granted to them. 7 July, 17^6, Mr. Bridges declares the purchase-money was the money of the infant, and declares the trust of his conveyance for her. The infant lived to attain twenty-one ; entered on the estate of which she was actually seised in fee, received the rents, and appointed her steward to receive and recover them. Notwithstanding this, it is said that this must be con- CASES IN CHANCERY. 152 udered of the nature it originally was, and in lieu of 1703* which it came, the jfllOO personal Besides, it is said to T %0 ^ mJ ' . . *~ ' Inwood be a general rule in equity, that no person or means can v . convert an infant's personal estate into real, or vice versd, Twtnb. so as to bind such infant. This is a point of very great consequence, and if there is any such general rule it ought to be adhered to ; but the rule is quite otherwise, and reason as well as practice are in direct opposition to it ; and indeed it is absolutely necessary that it should be so. Now to consider this position step by step, and first with regard to trustees or guardians of their fortunes. I do not know any such general rule. I can conceive many cases where a conversion of such estate might be made by trustees or guardians, and that this court would support [ 153 ] and approve their conduct ; and it would be strange to say, that trustees would be censured in this court for doing what the court would have ordered to have been done. I am very sure that it is a power which this court has exercised, and which I have in substance executed, with- out any provision to retain the former quality, or without any dispute upon it. Indeed, it seems to be admitted that in both cases, if for the benefit of the infant, it may be done. If this court cannot dispose of the infant's personal * estate, and convert, there would be an end of the question. But I am of opinion that the court, which stands in loco parentis, may dispose of such money for the benefit of the infant, so as to make it real even during the infancy ; and if the court can do this, it appears to me, in the pre- sent case, that the court and all the parties intended to do so, and it was for their benefit that it should have been so done. The court knew that the infant had the fee of the whole estate, and that nothing stood out against her, but the wife's equitable estate for life. \ 153 CASES IN CHANCERY. 1768. IXWOOD «. TWYNE. [ W4] The consequence of this was, chat nothing but an equity could be conveyed to the infant's trustee, and the conveyance of a partial equity to a person possessed of a pure legal fee can operate only by way of extinguish- ment ; and it seems clear to me, that the moment Mr. Bridges declared the trust for the infant, his estate vanished, and he had no longer any interest in him, nor she any remedy in this court against him. The case of the Earl of Winchelsea v. NorcUffb, 1 Vera. 435« as to the power, authority and practice of the court, is in point ; for there the Chancellor agreed with the Master of the Rolls, that if the trustees had obtained t> decree for investing this money in a purchase, the court would have maintained the decree, 'but adhered to thai which I take to be the general rule, that trustees could not at will and pleasure convert personal to real, and very properly considered that as no purchase for the infant, it only being to be so on his election. In that case there was no question on the validity of the purchase but be- tween executor and heir, so that what the court did on that subject is merely applicable as to its being real ot personal during the minority. If I were to decree for the plaintiff in this case, I should act contrary to her own petition, and contrary to the direction of the judge who made the order upon that petition. I have said all this on the supposition that she had died under twenty-one ; but, in truth, she lived to attain that age, acted as owner, received rents, &c. and executed a letter of attorney appointing a receiver. If this be not a confirmation, I know not what is. Where is the line to be drawn ? Must she live three days, three months, or three years after twenty-one ? In the present case, therefore, if there could have been any doubt upon the other point, the bill must be dismissed on this. CASES IN CHANCERY. 154 Where a person ia acting bond Jide for a lunatic or an infant, without any intention to prefer either represent- ative, there is no equity be- tween them ; and so, where a stranger had cut down timber tortiously, it was refused to be restored to the estate, be- cause there was no abuse * of confidence. Ex parte Brom- JUM, 3 Bro. C. C. 510. 2 Dick, 762. 1 Ves. jun. 453. Vernon v. Vernon, cit. ib. Ex parte Grimstone, Amb. 700. and more correctly stated 4 Bro. C. C. 234. Oxenden ▼. Lord Campion, ib. 231. and 2 Ves. jun. 60. Flanagan v. Flanagan, cit. ib. As to the doctrine of the court in direct- ing timber to be sold, land-tax to be redeemed, &c, and the distinction between its prac- tice with regard to infants and lunatics, vide Ware v. Polhill, 11 Ves. 237- Ex parte Philips, 10 Ves. 118. Fufealso Mttdmay v. Mildmay, 4 Bro. C. C. 76. Askburton v. Ash- burton, 6 Ves. 6. Delapole r. Delapole, 17 Ves. 150. Wick- ham r. Wickham, Cowp. 288. 10 Ves. 410. Osborne r. Os- borne, ib. 423. Hussey v. Hussey, 5 Mad. 44. 1762. Inwood V. TWTNX. [ *1S5 ] /men.. tt4.L'2>$ - ROBINSON t>. KNIGHT. (Reg. Lib. Min. Jpp. 1762. (a)) 18th & 19th February, 1761. 12th July, 1769. A C. Amb. MSS. Aston, MSS. Serjt Hill, MSS. Lady Arabella Howard, by her will, bearing date Wne "j *?****? die 20th of June, 1746, devised (inter alia) as follows: a sum of money to be laid out m land, and settled, after some previous limitations, on her own right heirs, and after- wards made a general residuary devise of all her real and personal estate: held* that upon the evident intent of the testatrix to exclude die residuary devisee, the heir at law was entitled toa remainder in fee in the lands to be purchased. {a) There is no notice taken of this decision in the Register's book, owing, pro- bably, to the circumstance mentioned by Mr. Justice Aston in his report of this case, viz. that the parties had privately agreed to divide the money before the decree was pronounced, each to take 156 CASES IN CHANCERY. 1762. Robinson v. Knight. << [156] Item, as to all the principal money which now is, and which shall be due and owing to me from Edward Webb on the manor of Horeeross, and other his lands in the county of Stafford, and all interest which shall be due for the same at the time of my decease ; and as to the prin- cipal sum of money due to me from Arthur Dabbs 9 and all interest which shall be due for the same at the time of my decease, I give the same respective sums of money unto Philip Howard, Ralph Knight, and Edward Webby their executors, administrators and assigns, upon trust, to be laid out in one or more purchases of lands, &c. in England, which when purchased shall be, and are hereby directed to be so settled upon Sir Edward AUeyn as te- nant for life (with certain powers to him given) ; remain- der to his first and other sons in tail male, and, for want of such issue,- to the use of my own right heirs for ever." She then proceeds to give several specific and pecuniary legacies, and concludes, " All the rest and residue of my estate, both real and personal whatsoever and whereso- ever, I give the same unto the said Ralph Knight, his heirs, executors and administrators, for his and their own use and benefit." Sir Edward AUeyn being dead without issue, this bill was brought by Mr. Robinson, the cousin and heir at law of Lady Arabella, against Mr. Knight, her sole sur- viving executor, and residuary legatee and devisee, to have the money, which amounted to <£21,000, to be paid to him. The Attorney-General, Mr. Hoskins, Mr. Perrot, and Mr. de Grey, for the plaintiff. The subject of the present devise was money at the £9000 ; and that out of the remaining £3000 the costs on both sides should be paid; and the residue go to the party in whose favour the de- cree was made. CASES IN CHANCERY. 156 death of the testatrix, directed to be laid out in land, under a particular designation. There was no devisable interest in her upon which the residuary clause could operate: it would not have been real assets by descent upon the heir. The devise to the heir is opposed on the ground that no one can make his right heirs purchasers without departing with the whole estate ; but here this was a new use limited to the plaintiff, as no use whatever existed in Lady Arabella, Tippin v. Cosin, Carth. 272. the heir must therefore take by purchase. The sole ground of the defendant's claim is upon the residuary clause, but that cannot comprehend anything before de- vised ; and it has been repeatedly decided that it is differ- ent from personal estate, and shall not fall into the re- Muum. Goodright v. Opie, 8 Mod. 123. Roe v. Fludd, Fortesc. Rep. 184. Doe v. Underdown, 15 Geo. 2. (a). Sprigg v. Sprigg, 2 Vern. 394. In Amesbury v. Brown, 25 May, 1750, Lord Hardwicke held, that a reversion did not pass by a residuary clause, and that though a de- vise may not operate to make the heir take by purchase, yet it is in the nature of an exception out of the residuary clause. The Solicitor-General, Mr. Wilbraham, Mr. Taylor White, and Mr. Filmer, for the defendant. Here was not originally a disposition of the whole interest of the testatrix : the remainder in fee was a re- version which continued in her : it was the old use, and not a new one. Earl of Bedford* case Mo 71 8. It is a well established principle at law, that no one can devise to his own right heirs without departing with his whole estate. Co. Litt. 22 b. Here the testatrix did not de- part with her estate by the devise to her heirs ; it con- tinued in her, and is operated upon by the general devise 1762. Robinson v. Knight. [157] (a) Cit. Bl. Rep. 737. VOL. 11. M 157 CASES IN CHANCERY. 1762. Robinson v. Knight. of the residuum. In Amesbury v. Brown there was * strong indication of intent in favour of the heir ; in the present case the intent seems equally strong to favour the residuary legatee. In Doe dem. Dodd v. Russel, Mich. 1757(a), testator had devised several specific devises, with limitations to his own right heirs in the case of one dying in the life of the testator, it was held that the resi- duary devisee should take. 12th July. [168] The Lord Chancellor. The question in this cause arises out of the will of Lady Arabella Howard, and is, whether, upon the true construction of it, a sum of about £ 21,000 belongs to the plaintiff or defendant. Both claim under the same instrument, and as it is a will, both must derive from the intent of the testatrix, as the same may be collected from her expressions. The will, so far as it concerns the pre- sent question, is to this effect. (States the will.) Upon this state of the will, the only consideration is, whether this remainder in fee, intended to be limited on the estate given to Sir Edward Alleyn and his sons, will go to the plaintiff, the heir at law ; or whether the testa- trix intended to comprise it in the residuary clause, and give it to Mr. Knight, the defendant : and so it becomes merely a question of intent, for she might have disposed of it in which of the two modes she thought proper. Now to find the intent of the testatrix, let us consider this will step by step. She was possessed of, or entitled to, a very considerable personal estate, part of which she intended, after her death, should be converted into land : for this purpose she gives the sum in question absolutely to her trustees, their executors, administrators and as- {a ) Cit. Bl Rep. 737- CASES IN CHANCERY. 158 signs ; and directs them, after her death to purchase land with it, and to settle it on Sir Edward Alleyn for life ; remainder to his first and other sons in tail male ; remain- der to her right heirs. Thus far her intent, beyond a doubt, seems to be, that the trustees, after her death, should receive this sum of money : that they should con- vert it into land, and settle the fee of such land to parti- cular uses, and the remainder to her heirs at law ; an in- tent not repugnant to any rule of law or equity. It was argued, indeed, for the defendant, that the direction of this trust, as to the remainder in fee, was destitute of meaning ; and that there was no disposition of the fee at all, but that it remained in the testatrix till she came to the residuary clause, and disposed of it to the defendant, Mr. Knight: and this was grounded on the rule of law, that no man seised of an estate can make his right heirs purchasers; but I do not think that rule applicable to the present case, and if it were applicable, I do not think it conclusive to the merits between the pre- sent parties. I agree that a person seised cannot make his right heir a purchaser; for the estate, quoad the right heirs, remained in the owner, and will descend as a reversion ; but here there never was any real interest to vest in the testatrix ; the. conversion of the estate was to be after her death, and whoever takes under the settlement directed to be made will take a new created interest, which never did, and never was intended to vest in the testatrix, and there- fore cannot take but as purchasers. Suppose, in this case, the residuary clause had been penned thus : " All the rest, residue, &c. except the money intended to be laid out in land ; " there could then, as I conceive, have been no dispute, but that this court must have directed a limitation to Sir Edward Alleyn and his sons, remainder to.the right heirs of Lady Arabella Howard^ which would m2 1762. Robinson v. Knight. [159] 159 CASES IN CHANCERY. 1762. have vested in the plaintiff as a purchaser, and gone to „ ^"^ his heirs ex parte maternd in default of heirs ex parte Robinson \ , . ,. , » v . v paternd ; and therefore the rule is confined to the estate Knight. f which a man is seised. For though a man cannot The rule that a me ^ e ^ ricrht heir a purchaser of that estate, he may of man cannot or * make his right another. He may contract for an estate by way of re- ii^nfin^tothe mainder > *&** particular estates, to his own right heirs, estate of which which will be a contingent remainder, and vest in the right heirs as purchasers if the ancestor is dead when the particular estate determines. But, as I said before, I think if this came within the rule of law, and was the case of a real estate of which the testatrix had been seised, it would not have been con- clusive to the question between the parties, which is, did the testatrix intend this for the heirs at law, or for the / £ I &ft lf3i residuary legatee and devisee ? Now for that purpose / the case of Amesbury v. Brown is a case in point, and is [ 160 1 thus as I have taken it from the Register's book. " George Pots, seised of an estate called Trewhit, by will, bearing date the 8th of January, 1741, gave to his sister Ann i?200, to his sister Christian i?200, and to his nieces Ann Robson and Ann Godwin «£ ) 200 each, and to his sister Mary Pots <£200, to be paid out of his estate ; and gave to his sister Mary all the remainder of his said estate in tail general ; remainder to his own right heirs, and all the rest and residue of his estate, goods, and chattels, both real and personal, he gave to his sister Mary, and ap- pointed her sole executrix. The plaintiffs, with Mary, were the testator's heirs at law ; Mary intermarried with the defendant, Brown, and died without issue : plaintiff claim to be let into possession as heirs at law. Mary, before her marriage, by deeds and fine, conveyed to the defendant and his heirs, subject to a term to discharge the incumbrances, whereby he became well entitled to the fee-simple and inheritance of the said estate. Mary, CASES IN CHANCERY. 160 being by the will tenant in tail, with reversion in fee to herself, the court decreed the plaintiffs entitled to redeem, and gave directions accordingly ; and upon redemption directed a conveyance accordingly." The principle upon which that case was determined was on the intent, that it was not intended to be comprised in the residuary devise, though there it was certain that the remainder was void, and that the heirs at law took by reverter and in descent. And it seems to be built on the cases determined at law, that a remainder void by lapse shall not fall into the v residuary clause. Those cases are founded on sound rea- son, and I wonder that there was much difficulty about them ; for where a man disposes of his whole interest in one thing, and gives the rest and residue of his possessions to another, it is very forced and absurd to suppose that by the words rest and residue used at the same instant, he meant a residue not existing, but which might by pos- sibility exist. To this way of reasoning, indeed, is ob- jected the case of personal estate, where the contrary doc- trine prevails ; but the true answer to that is, that the law, either from the words of the statute of wills, or from its "favour to the heir, real property being in those times the material or general object of the law, has determined that a will speaks quoad the real estate from the time of making it, quoad the personal from the death of the testator ; and that principle being fixed, the contrary and respective resolutions not only may be derived, but result ; and that principle has been fixed from Brett v. Rigden (a) to the present time. If the supposition, therefore, that when a man has intended to dispose of his whole or any part of his estate, he meant to comprehend that in the residue, be forced and strained ; how much more so to suppose it in the present case, where there did not exi 1762. Robinson v. Knight. [161] (a) Plowd. 340. 161 CASES IN CHANCERY. 1762. Robinson v. Knight. a possibility, while the will stood, of the remainder ever reverting to the testatrix. I am, therefore, of opinion for the plaintiff, the heir at law ; and it must be referred to the Master to take an ac- count of what was due at the death of the testatrix for principal and interest of the respective principal sums due from Mr. Webb and Mr. Dabs, and the same are to be invested in the purchase of lands, with the approbation of the Master, and settled according to the directions and to the uses of the will, with a remainder in fee to the plaintiff and his heirs. [162] The present case and Ames- bury v. Brown were cited and approved of by de Grey, C. J., in Smith dem. Davis v. Saunders, Bl. Rep. 736. where it was laid down, that a residuary clause would ex- tend to every latent reversion which the testator might have in him, unless it were ex- pressly excluded by devise to some other person; that in case such latter devise be to the testator's own right heirs, although they cannot take as purchasers, yet as the whole is merely a question of inten- tion., it will equally operate as an exclusion of the residuary devise. The same point was afterwards decided upon the same will in Doe dem. Davis v. Saunders, Cotvp. 420. A similar principle was attended to in the decision of the case of Goodright dem. Earl of Buckinghamshire v. Marquis of Dorvnshire, 2 Bos. 6c Pul. 600. Vide also Doe dem. Earl Cholmondeley v. Wea- ther by, 11 East, 322. CASES IN CHANCERY. 162 DONISTHORPE v PORTER. ieth & 19th of July, (Reg. Lib. a. I76I./0/. 366.) £ 6 £ Amb. 600. Richard Porter, by indenture of lease and release, Where a person bearing date the 14th and 15th June, 1717, conveyed h enti ' led to a ^° . . sum °* money certain freehold estates to the use of himself for life ; charged upon an remainder to his wife for life ; remainder to trustees for c^j'^a term 100 years ; remainder to himself in fee. The trust of the of years, and af- term was declared to be by perception of the profits, or comes entitled to by mortgage, or sale, with all convenient speed, to raise t J le fee-simple of the estate a JP1000, to be equally distributed among the younger son court of equity or sons, and the daughter and daughters of the marriage, extinguishes the and be paid to them at their respective ages of twenty-one except in the' or days of marriage ; with a power of revocation upon ^r^finf ltors Richard Porter's purchasing and settling other estates of Where heir in- the yearly value of £25 in the same way. ^^j ^te^'if Richard Porter died in 17^7? without having revoked " e executes a •the uses, leaving Elizabeth, his wife, Richard Porter, his and bond, with a only son, and Margaret, his only daughter : having made new equity of re- a will, and disposed of his personal estate, but not of his makes the debt real estate, so that at his death the real estate descended his own > and hb 7 # personal estate to his son, subject to the uses of the settlement. The son shall be prima- paid the interest of the i?1000 to his sister. Elizabeth Tlly liable# r *i63 i the wife died, and Margaret, the daughter, afterwards *• J died in July,YJ5&, intestate, leaving Richard, her brother and only next of kin. In October, 17*>8, Richard Porter died intestate, leaving Robert Porter, his heir at law, and the plaintiff, Catherine, his next of kin. The bill was brought to have the i?1000 raised under the 100 years term. The Attorney-General and Mr. Hoskim for the plain- tiff*. 163 CASES IN CHANCERY. 1762. Donisthorpe v. Porter. [164] Mr. Sewelly Mr. de Grey, Mr. Wilbraham, and Mr* Bicknell, for the defendant. The Lord Chancellor. Here are two questions ; First, Whether the £1000 ought to be raised by aid of this court ? Second, If to be raised, whether it ought not to be applied to exonerate Richard Porter's estate of the mortgages which he has made a debt of his own ? The first is a question of consequence. I do not find that the counsel have cited a decision in point ; yet, on grounds of general practice, I am, perhaps, better satisfied than I should be if I depended on authorities. It is a case of consequence, because it may frequently happen in families: it might, if determined for the plaintiffs, revive dormant claims in families. I think cases of consolidating rights in equity are reducible to a firm foundation. I do not think it a rule, that a charge upon an estate which can only be got at by trustees, and so be prevented from merging at law, shall be distinct in equity, and go to the administrator, while the estate goes to the heir ; but, I think, where the owner has an absolute interest in the estate and charge, the charge is annihilated for the benefit of the estate and heir. The court does not consider the subtilties of mergers, but discharges the estate from the incumbrance ; it would otherwise burthen estates to no purpose. There are, however, two exceptions : first, the case of creditors, which arises from the power and justice of this court correcting the illiberality of law with regard to creditors, which permits a man to die insolvent, leaving a very good estate. The second is that of infants. As to mergers, a court of law cannot look into rights or beneficial interests, it merges estates lying in the same person, but cannot where they lie in different persons; CASES IN CHANCERY. 164 POBTBB. equity does not regard that, but looks into the beneficial 1762. interests and views of parties, whether the estates are n ON wiwmM strictly in the same person or in different persons (a). The second point is as clear. Where an heir inherits a mortgaged estate, he makes the debt his own by covenant and bond, and a new equity of redemption : his personal estate is therefore liable to pay ; he has by his own act willed it so (6). Bill dismissed. (a) Vide Price v. Gibson, ante, p. 118. and note to it. Vide also Saunders on Uses, p. 242. et seq. (b) As to those cases in which the land, though ori- ginally only the auxiliary fund to the personal estate of the original contractor, be- comes the primary fund, as between it and the personal estate of any other person who takes the land subject to the charge, and those where such person, by making a new contract, renders his own personal estate liable ; vide Bagot v. Oughton, 1 P. W. 347- Edwards v. Freeman, 2 P. W. 435. Leman v. Newn- ham, 1 Ves. 51. Robinson v. Gee, ib. 312. Parsons v. Free- man, Amb. 115. and the cases cited in Mr. Car's note to •Evelyn v. Evelyn, 2 P. W. 664. So where a person dies, leaving an estate subject to an incumbrance, if the mort- gage be transferred by the son, the transaction is no more than the purchase of an equity of redemption ; the incumbrance does not be- come his debt, and even his personal covenant will not have that effect, being con- sidered merely as a covenant for indemnity. But if there is any thing which raises a new contract, if there is any personal dealing, a new debt is thereby constituted, to which the personal estate is liable. Tweddell v. Ttveddell, 2 Bro. C.C. 101. 152. BiU linghurst v. Walker, ib. 604. Woods v. Huntingford, 3 Ves. 128. Butler v. Butler, 5 Fes. 534. Waring v. Ward, ib. 670. & 7 Ves. 332. Earl of Oxford v. Lady Rodney, 14 Ves. 417- [ # 16« ] 1M CASES IN CHANCERY. July si, 1762. SURMAN v. BARLOW. S. C. SeweUi MSS# (Reg. Lib. b. 1761. fol. 346.) Where in the William Barlow, the elder, being seised in fee of ceu- will a whole line **m real estates in the county of Pembroke, after giving of the original divers legacies, devised as follows: " and, lastly, I do had been omit- . ted, but the sense nominate, constitute and appoint my son, William Bar- was left in such j aw to j^ m y 80 i e executor to this my last will and tes- a manner as to ' ^ J give reason to tament, and to possess and enjoy all my real estate and or(grad contain! P** 8011 * 1 g°°Z6-- [169] MARTIN v. HEATHCOTE. Februarys*, 1763. (Reg. Lib. a. 1762. fol. 117.) Sewe*?i§BB. This was a bill for an account of certain mercantile Merchants' transactions : the defendant, by his answer, insisted that ^ntotal <£* none of them were within six years from the filing the continuance, bill, and insisted upon the statute of limitations (a). statute of ««"*fr - The Attorney- General and Mr. Bicknell for the plain* tioni - tiff; Mr. Sewell for the defendant. * (a) 21 Jac. I. c. 16. MB CASES IN CHANCERY 1768. Martin v. Hrathcote. The Lord Chancellor. Merchants 1 accounts, after six years total discontinuance of dealings, are as much within the statute of limitations as other accounts. The difference between merchants 1 accounts and those of other persons is, that a continua- tion afterwards will prevent the statute running against the former accounts, but will be a bar as to all articles before six years in other accounts. Bill dismissed. / [.!*>.] Great doubts have been entertained on this point. Lord Hardwicke, in Welford v. Liddel, 2 Ves. 400. noticed the difficulty of the construc- tion to be applied to this ex- ception in the statute: his Lordship, however, consider- ed the intention of it to be, to prevent dividing an ac- count where it was still run- ning, and part of it might have been within the time, and part before; but where the account was closed and concluded between the parties, and the dealing and transac- tion over, he was of opinion that the statute might be pleaded. In Catling v. Skoulding, 6 T. R. 103. there is a dictum of Lord Kenyan's, that in the case of merchant's accounts a plaintiff is not barred, though there has been no transac- tion of any kind between the parties for six years. Lord Rosslyn, however, upon that dictum being cited before him in Crawford v. Liddel, cit. 6 Ves. 582., expressed himself of an opposite opinion; which is supported by the late case of Barber v. Barber, 18 Ves. 286. To these authorities may be added the principal case, and that of Bridges v. Mitchell, Gilb. Eq. Rep. 224. The point was much dis- cussed in Jones v. Pengree, 6 Ves. 580. Duff v. the East India Company, 15 Ves. 1 98. Foster v. Hodgson, 19 Ves. 185. See, also, the very elaborate note of Mr. Serjt. Williams to the case of Web- ber v. Tivill, 2 Sound. 121. CASES IN CHANCERY. . V?9 8th, 9th tc 10th COUNTESS OF LONDONDERRY v. WAYNE. February, 1763. (Reg. Lib. a. 1762. foL 207.) Amb . ** Robert Graham, by his will, bearing date the 21st Husband having of June, 1721, devised his estates in Southwarmborough a jointure of any *bd Crttnsdell, in the county of Southampton, to his part of the estate eldest son, Robert, for life; with remainder to his first wol.pcr annum, and other sons in tail male ; with remainder to the testa- c° ven «nts on his marriage to settle tor's second and third sons, and their issue male, in the lands of the same manner, with remainder in fee to his own right heirs, ^^^J^Jf •with a power for his sons, when in possession, to make a taxes and re* jointure of any part of the said estates not exceeding the ^^g'makes a yearly value of devised to the defendant, M re. Wayne, his niece and heir at law, all his real estates for life ; remainder to her first and other sons in tail, with remainders over. In 1752, the defendants, Wayne and his wife, filed a bill for an account and application of the real and personal estates of Robert Graham, to which the plaintiff put in her answer, insisting upon her join- ture ; but did not, either by her answer, or at the hear- ing, pretend that the estates were deficient. In 1754, a decree was pronounced, and an account directed, and the surplus rents of the real estates were directed to be paid to Wayne and his wife. In 1758, when the Master was about to make his report, the plaintiff set up a claim arising from a deficiency in the settled estates ; but there being no directions relative to it in the decree, the Master disallowed the claim, and the plaintiff took exceptions to the report, which were overruled without prejudice to any claim she might have on account of the deficiency. This was a bill brought against the personal represen- tatives of her husband, and the devisees of his real estates, to have her jointure made good for the future, and an account of the arrears, &c. The Attorney-General, and Mr. Setcell fox the plain- tiff. CASES IN CHANCERY. 172 Two questions arise in the present case : first, what the plaintiff is entitled to by way of jointure. The second question is upon the fact of deficiency. As to the first point, she is entitled by the articles to lands of the yearly value of i? 400 " clear of taxes and reprizes ;" and though the power did not extend beyond a settlement of jP400 per annum, not clear of taxes and reprizes, yet his covenant will affect the real assets of the husband, and ought to be made good out of the reversionary interest, winch, by the death of himself and his brothers without issue, is come into possession, and has passed by his will. The plaintiff was married at the time of the making the settlement, and sub potestate viri ; it cannot, therefore, prevail against the articles. Besides, the settlement is recited to be made in pursuance of the articles, a circum- stance which in West v. Errissey, 2 P. W. 349. was alone of great weight in inducing the House of I/yrde to rectify the settlement, though it was made before marriage. As to the second point, it has been repeatedly settled that the value of the estates ought to be taken at the death of the husband, and not at the time of the settle- ment. Mr. Willes and Mr. de Grey ; Mr. Ambler and Mr. James, for different defendants. Though the power is not recited in the articles, yet there can be no doubt but that they were intended to be an execution of it : every part of the articles imports that the father's will which contained it, was seen on that occasion. The la.nds are specified by name, as in the will, which are covenanted to be settled. The limitations in the articles are the same as in the will : there is no pro* vision for daughters in either. If it had been a covenant to settle lands generally, the real assets would have been affected; but it is to settle particular lands, and the same lands as he is empowered to settle by his father's will; the VOL. lit m 17«3. Countess of London- derry v. Wayns. [173] 17S 1763. Countess of London- derry v. Waynb. I 17* ] CASES IN CHANCERY. reversionary interest, therefore, which fell in afterwards, ought not to be liable to make good her jointure beyond the extent of the power. As to the insertion of the words " clear of taxes and reprizes," it was evidently a mistake. The settlement, therefore, in varying from the articles ought not to be considered as proceeding on a new agree- ment, but as rectifying the mistake : it was therefore con- sistent with the true construction of the articles, and in that light to be considered as made in pursuance of them. But on the foot of a new agreement the settlement ought to prevail, as she was in many respects sui juris. The Lord Chancellor. I will first give my opinion, and then my reasons for it And I am of opinion, that on the true construction of the will of Robert Graham, the father, the articles, and the marriage settlement, Lady Londonderry is entitled to £400 per annum jointure, public taxes being deducted in proportion to the lands comprised in the will of the father. J think that the articles were entered into in execu- tion of the power, they were made with a privity of the father's will, and the limitations contained in them are penned pursuant to the limitations in the will. It is* therefore, clear to me, that the insertion of the words " clear of taxes and reprizes " was a mistake in the per* eons who drew the articles; they imagined, probably, that the words of the power were to be so understood. Powers of this sort do not in general free the jointure from public taxes (a) ; but this was not understood at the time. (a) See the doctrine on Duchess of Marlborough, 2 this point in the case of the Atk. 542. and the cases cited Marchioness of Blandford v. in Mr. Saunders's note* CASES IN CHANCERY. 174 As to the settlement, Lady Londonderry is to be con- sidered in this court as a feme sole : she contracted for her separate use, and was capable of so contracting not- withstanding her coverture. The settlement in every part of it imports an intention to settle a jointure accord- ing to the extent of the power; the covenant most strongly marks that intention, and the lands and pension settled are expressly said to be j£400 per annum. The second question is, as to the fact of the deficiency, upon which I must direct an inquiry. I think that where there is a settlement of this nature, the value can- not be-fixed with justice but at the death of the husband : the wife cannot know the value but by inspection of the leases, or by information, if the estates are in land. The rent taken at a particular time, and at a particular letting, ought not to bind the wife. The rent of an estate is very uncertain, it often varies : the landlord is often obliged to give boons. Where he has been at an expense of im- proving, it is common for the tenant instead of paying a sum of money for the improvements, to pay an increase of rent. 17©. Countess of London- derry v. Wayne. [175] k'M&2d>. WYCHERLEY t>. WYCHERLEY. Et & contra. (Reg. Lib. b. 1762. fol. 189) 4th, 7th, & 18th Feb. 1763. S.C. Aston, MSS. Sewcll, MSS. Daniel Wycherley being seised of lands in the The court will county of Salop, by indentures of lease and release, bear- traas^mered into to preserve the peace of families; and therefore, where a son upon his marriage joined with his father in re-settling the estate, and by a memorandum executed at the same time, agreed to secure 500/. to* each of his sisters : held, that there was sufficient consideration for the court to decree a specific performance of this agreement, an attempt to shew that it had been obtained by an undue exercise of parental influ- ence having failed, u2 175 CASES IN CHANCERY. 1763- ing date the 9th and 10th of September, 1696, conveyed W "^let *° trU8tee8 ? to ^ e U8e °^ Wmself for life, remainder to hie v. sons in strict settlement; remainder to Thomas Wycher- Wychebley. ky 9 f Latham, for life ; remainder to trustees, to pre- serve, &c. ; remainder to his first and other sons in tail male ; remainder to his own right heirs. In the year VJ&J, the premises became vested, under the above settlement, in Thomas Wycherley, the grand-, son of the above-named Thomas Wycherley, of Latham. It appeared that he had been before that time living in. great indigence and obscurity. His family consisted of Daniel, the defendant, and two daughters, the plaintiffs in the former of the present suits. Daniel Wycherley y the son, being desirous to make a settlement upon his ap- proaching marriage, an arrangement was proposed with his father to re-settle the estate. His father at first wished that he would settle part of the premises upon his mother, and make a provision for his sisters. The [ 176 ] son, however, refused the former proposal, but acqui- escing in the latter, an agreement was entered into, that in case Thomas, the father, would suffer a recovery, and declare the uses to himself for life ; remainder to the de- fendant Daniel in fee, he, the said defendant Daniel, would secure £500 each to the plaintiffs, his sisters, pay- able within six months after the decease of the said Tho- mas Wycherley. The recovery was accordingly suffered to the above uses in Trinity Term, 1757- By a memorandum, bearing date the 13th of July, 1758, the defendant, Daniel Wycherley, in consideration of natural love and affection to his sisters, agreed within one month from the date thereof, to execute a deed to secure £500 each to his sisters, payable within six months after the death of his father. The bill in the first cause, which was brought by the sisters, prayed a specific performance of the agreement CASES IN CHANCERY. 176 contained in the memorandum, and that the estate might 1763. . be charged with £500 each for their benefit. The cross w bill was filed by the son, and prayed that the memoran- v . dum might be cancelled, as having been obtained under Wychbblby. undue influence, and parental authority, and as being voluntary and without consideration. It appeared that Henshaw, the father-in-law of the defendant, had, pre- vious to his marriage, insisted upon a settlement, and upon an immediate provision to be allowed by Wycherley, the father ; that the father was unable to make any such allowance, and that Henshaw, in consequence, strongly urged the son not to enter into any agreement to re-settle the premises. The son, however, afterwards executed the agreement, and though evidence was entered into of strong language used by the father, yet no case of im- proper exertion of authority was made out by the evi- ' dence. Mr. Sewell and Mr. Perryn for the plaintiffs. The Attorney-General, Mr. de Grey, and Mr. Comyn, [ 177 ] for the defendant, contended, that the agreement was merely voluntary, and therefore the court would not lend its aid towards carrying it into execution ; that it was ob- tained unfairly, and by undue exercise of parental power, which the court always looks upon with a jealous eye. They cited Mr. Auditor Benson's case, before Lord Hard- wicke, where Mr. Benson had prevailed upon an only son, by a former marriage, to suffer a recovery, and make a settlement in favour of the children of a second mar- riage, the court set it aside, and in the decree declared they did it because the deeds were obtained by undue exer- cise of parental authority/ Carpenter v. Heriot (a). The Lord Chancellor. Upon the best consideration I have been able to give {a) Ante, Vol. I. 338. 177 CASES IN CHANCERY. 1763. Wycherley V. Wychbblky. Court in genera] will not decree performance of voluntary agree- ments. [178] this matter, I think I ought ta dismiss the cross bill, and to pronounce a proper decree for a specific performance of the agreement, signed by Mr. Wycherley. The questions made by his counsel are two. 1st. They object want of consideration. 2dly. They make what would have been a still stronger objection if substantiated in proof, viz. that the agreement was obtained by undue means, and under an improper exertion of paternal influ- ence. And if either of these objections had been made out in evidence, I should not have decreed as I am going to do as the case stands. I do not lay it down as a universal rule, that the court will in no case execute a voluntary conveyance, though I do not recollect a precedent of that sort. It is certain that, in general, courts will not compel the performance of voluntary agreements. An agreement, in its nature, imports a reciprocity, and a quid pro quo, and where that reciprocity does not exist, the power of enforcing it does not exist. (I do not mean cases of specialties, where the deed itself is evidence of a consideration.) I say, I know no instance where a court of equity has compelled a man to execute what was a mere act of volition (a). (a) According to a distinc- tion since established, if the subject in question rests in covenant and is purely volun- tary, the court will not exe- cute that voluntary covenant ; but if the legal conveyance has been made, the equitable in- terest will be enforced. If you want the assistance of the court to constitute you cestui/ que trust, and the instrument is voluntary, you shall not have it : but if the legal con- veyance be made, that con- stitutes 'the relation between trustee and cestui/ que trust, though voluntary, and the court will execute it against the trustee and author of the trust. Coleman v. Savel, 3 Bro. C. C. 12. 1 Ves. jun. 50. Ellison v. Ellison, 6 Ves. 661 . Pulvertqft v. Pulvertqft, 18 Ves. 99., vide also Griffin v. Nanson, 4 Ves. 344. Lee v. CASES IN CHANCERY. 178 But I think the present was not a mere voluntary 1763. agreement, and the court will (and I am warranted by w ^*^^ the precedents to say, that it has done so) attend to slight v . considerations for confirming family settlement and modi- Wychkbmy. ficatipns of property. They pay a regard to reasonable motives, and honourable intentions. In these cases they will not weigh the value of the consideration. They con- sider the ease and comfort and security of families as a sufficient consideration. In the case of collateral limita- tions, purchased by a father on the marriage of his son, by relinquishment of part of his estate, this court will make the father a purchaser of such collateral limitations. Consider the state of the family when the agreement was made. By a settlement in 1696, the father was tenant for life ; remainder to his first and other sons ; reversion in fee to the right heirs of the settler. The jointress dying in 1757, ^ e remainder then vested as a fruitful remainder to the father, then an old man, and probably before both obscure and indigent. It was very material for him, and it was his duty to make all the use he could of the estate, to make a provision for his daugh- ters. The son was at that time paying his addresses to a young lady who had no fortune till a settlement was made: that was a proper opportunity for the father to come to terms with his son, as the son, without the father's concurrence, could not have made a jointure, or any pro- vision for younger children. The father, therefore, pro- [ 179 ] posed, if the son would make a settlement on the daugh- ters, that he would join with him in opening the estate, and upon this a treaty was entered into ; and what was done then is conclusive upon the point of parental influ* ence, because the son absolutely refused to do any thing Henley, 1 Vera. 37, and note of collaterals, vide Hale v. to it. As to the effect of limit- Lamb, post. 292. atkxns in a settlement in favor 179 CASES IN CHANCERY. 1763. to let in his mother. The witnesses say he negatived Wychbrley ^ s a k 8 °l ute ty> but as to his sisters, he was very ready v . to make a provision for them. He thought it very pro- Wychbrlby. pgy. h e h^ no objection. These, or the like expres- sions, are used by some or one of the witnesses. And, in truth, it would have been very unnatural, and a want of piety to his father, and affection to his sisters, if he had refused in joining to make a provision for the sisters out of the estate. His objection was to the projected pro- vision for his mother, and not to that for his sisters. The family he was going to marry into wanted, in- deed, a reasonable provision to be made for the imme- diate sustenance of himself and his family, and this was very prudent : and there was nothing improper in their endeavouring to do it. The father, however, thought that he could not afford it, and it was in consequence re- fused. The son thereupon rejects the advice given him by his intended father-in-law, Mr. Henshaw, and exe- cutes this writing seven days before the execution of the deeds, making a tenant to the praecipe : one of the wit- nesses proves the manner in which it was executed. Soon afterwards the son tells Mr. Henshaw he would not blame him if he knew his motives. These motives are not well explained to him. I consider the motive was, the father joining with him in suffering the recovery. When the deed was brought to Mr. Henshaw he never objected to the general import, but only to its form. He did not say it was a voluntary and improper agreement, but found fault with the word grant, as containing a [ 180 ] warranty : the son himself did not object to any other part. The whole family took it as a charge ; what else could be the reason of leaving part of the estate unsettled, when the son, besides that, had a power to raise a limited sum for payment of his debts ? CASES IN CHANCERY. 180 ■ I shall always hold the opinion I did in the case of 1763. Colonel Carpenter (a), because I took it from the dicta of „ *~ vW the greatest judges that ever sat in this court, from Lord v . Nottingham down to the present time, that wherever a Wychjomy. father purchases an office, or any thing else for his son, it shall always be considered as an advancement, and not as a loan. To make any other construction would be re- pugnant to every principle of law, for if I could charge my son with his schooling, his education at the university, and the expenses of travelling, &c. it would be to say the son might contract debts with his father at a time when he could contract with no other person. In cases,' therefore, where a father unduly compels a child by paternal influ- ence, the court ought to be strictly rigid in guarding \ against it. But here I see nothing which the father; might not properly do (though more properly, to be sure, if he had done it with less warmth of temper), for what reason could there be for the father to come in and give the son a marketable interest, and the son do nothing for himself or the family ? It was said, nothing was intended but to vest the remainder in fee in this family. I thought in the opening, that such had been the case ; if so, and the remainder in fee had been limited to the father, I should have thought it a case of parental influence. But here the father has only an estate for life, with remainder in fee to the son. In family agreements, the thority has been exercised by [ 181 ] court has administered an a parent, or where the party equity which is not usually might have been under a applied to agreements, even misapprehension of his rights, where some degree of au- Cann v. Cann, 1 P. W. 723. (a) Carpenter v. Her'tot, ante, Vol. I. 338. MI CASUS in chancery: 1783. Stapilton v. Stapilton, 1 Atk. WyW S. Cory v. Cory, 1 Fes. 19. Wyothrwsy p yUen ^ Beady9 2Atk.5^J. Wycherley. Kinchant v. Kinchant, 1 Bro. C. C. 360. Stockley v. Stock- ley, I V. & fl. 23. Dunnage v. White, 1 Saw. 137. Gor- don y. Gordon, 3 Siva. 400; Tweddellv. Tweddell,! Turn, 1. Newman v. Rogers, si. 14. n. 31st March, 1765. 5. C. Saw*?, MSS. Master being turned out of possession upon the vessel's being captured, does not deprive him of his lien for the freight in caseof her re- capture. Ear parte CHEESMAN in the Matter of WEL- FITT {a). The question upon this petition arose upon a claim By the master of a vessel to his lien upon the freight. The ship had been captured, and he, with several of the crew, sent into the enemy's port. The ship was afterwards re- captured. The Lord Chancellor. The master's right is founded on the principle of the specific lien of innkeeper, tailor, carrier, &c. extended by courts of equity to all cases of possession. He has a specific lien upon the ship and cargo. His being taken, and by that means out of possession, can make no dif- ference. The owner received the ship on her arrival, after the recapture, loco magistri, and as trustee for the master. If he had voluntarily quitted possession of the ship, that would, indeed, have made a difference. («) There is no note of this petition in the Book of the Secretary of Bankrupts. 12 Mod. 447. & 511. Ar. taza v. Smallpiece, 1 Esp. Rep. 23. Ward v. Felton, 1 East, 507- Scldergretn v. Flight, eit. in Hanson v* Meyer, 6 East, 622. CASES IN CHANCERY. 181 /$qz. 2Q.ft.jfo. PIKE v. HOARE. ssth April, 1763. (Reg. Lib. b. 1762. fol. 217.) An*. £e? This was a bill by the plaintiff, as heir at law of his Bill by an heir , , i •<■••■ i i-i* * at law, for an is- brother, to have an issue directed to try the validity of 8ue to try the his brother's will. It was admitted that his whole real ▼ ali ^i t 7 °£* ™& made in Eng~ estate lay in Pennsylvania. The will was dated the 18th land, dismissed, of October. 1752, and subjected the real estate to the par ^ d ° £ *%? payment of debts and legacies. acquiescence, The testator died in 1755, and since his death the de- SiSetSS^ visees had filed a bill in Chancery against the plaintiff, and upon a bill the heir at law, to perpetuate the testimony of the wit- testunon^ut nesses. The plaintiff put in an answer, and had applied principally be- for and had been paid his costs of that suit The plain- i ay m PenmyU tiff had at first disputed probate of the will in the ecclesi- WBk astical court, but afterwards withdrew his caveat ; and it appeared that since the will had been proved, the execu- tors and devisees had paid away upwards of £5000 in debts and legacies. Mr. Serjt Hewitt and Mr. de Grey for the plaintiff. This is a proper and even a necessary jurisdiction to be exercised. The will is deposited in the archbishop's court, which will not part with it to be carried to Penn- sylvania. The testator lived some time before his death, and made his will in England ; had been a long time ill, and his state of mind, and the circumstances attending the will, must be proved by persons who lived in Eng- land. The witnesses to be examined are very numerous, and it will be very difficult and expensive, if practicable, to get them to Pennsylvania. There is no compulsory method of doing it, and many of the witnesses are in pro* 183 CASES IN CHANCERY. 1763- fessions and business which they cannot leave, as the phy- ^T*"*' sician, apothecary, and others. The parties will have a v , trial by a jury in England, which they otherwise cannot Hoabb. have. Mr. Sewell, Mr. Wedderburne, and Sir Anthony Abdy, for the defendant This court has no jurisdiction ; the parties may have justice according to the laws of the country where the estate lies. However, if the court has jurisdiction, it is discretionary to direct an issue ; and in this case the cir- cumstances of acquiescence in the plaintiff, by which the devisees have been drawn in to pay large sums of money out of the effects, do not entitle him to any favour. The Lord Chancellor. The granting the relief prayed by directing an issue, is discretionary in the court. The general ground of this sort of bill is, to remove terms, or other impediments out of the way, and it is discretionary in those cases, either to direct an issue, or to prevent terms being set up so as to give an opportunity for the plaintiff to bring an action. In the present case, if it concerned lands in England, I should refuse to interpose, for the plaintiff saw the will, at first opposed the probate, afterwards withdrew his opposition. The administration under the will affects the real estate, which is made subject to debts and le- gacies. The plaintiff stands by, and suffers the exe- cutors and devisees to pay away large sums of money under the will. Upon a bill to perpetuate testimony, he did not cross-examine the witnesses, but took his costs as a disinherited heir. He has forfeited his right to come here, for want of purity in his behaviour and conduct. This would have been my opinion if the estate had been in England. But I build my opinion materially on CASES IN CHANCERY. 184 the fact of the lands lying in Pennsylvania, for a will of 1763. lands lying in any of the colonies is not triable in West- p minster Hall ; if it were, it would be introductive of v . great confusion, and be very detrimental to the colonies. Hoabs* We have colonies and factories in the four quarters of ,. . °f landf . . lying W the co- the world, and each colony and factory have distinct laws lonies is not of their own. Judges in Westminster Hall are not ac- ^^^ff^ quainted with the laws of the several colonies and fac- tories ; they are local. In Penn v. Lord Baltimore (a), Lord Hardwicke made the distinction, and said, it was the contract that gave the court jurisdiction in that case ; the principles of equity being the same in all places. What weighs strongly with me, is, that no issue was ever directed to try will of lands in Ireland. It was at- tempted in Lord Robert Manner s^s case (6), but given up, and that was as strong a case as this. Mr. CalweU, the testator, lived and died in England ; never was but once in Ireland to see his estate, and his will was made in London.. As to inconveniences, if the law is clear, they afford no argument of weight with the judge. The legislature only can remedy them. They are properly considered only in a case where the court entertains doubts ; which I do not upon the present occasion. But the inconve- niences on the other side would, in my opinion, be much greater, if the' whole property in the colonies were to be {a) 1 Fes. 444. His lord- mutual consideration ; which ship's words there are, " this gives jurisdiction to the king's court has no original jurisdic- courts, both of law and tian on the direct question of equity, whatever be the subject- the original right of the boun- matter." daries, and this bill does not (6) The Editor has not stand in need o£ that. It is been able to meet with any founded on articles executed report or note of this case, in England, under seal, for )80 CASES IN CHANCERY. 17«3. Put* v. HOABt. determined in the courts of England. I take it that every will proved here in the spiritual court, may be proved in the colonies as the original act of the parties. Why did not the testator execute a duplicate P The su- pineness of an individual cannot alter the law. If the testator has by his mismanagement brought these diffi- culties upon his family and estate, it is not in my power to help it. I must therefore dismiss the bill. Courts of law have no ju- risdiction in local actions re- specting lands lying in Ire- land, the Isle of Man, the co- lonies, &c. nor can courts of equity affect them. Countess ef Derbtfs case, Keiltv. 202, affirmed 4 Inst. 283. Cart- wright v. Pettus, 2 Ch. Ca. 214. Sir William Pettit's case, cit. 1 Fern. 421. Skin* net's case, cit. arg. Fabrigas v. Mostyn, 20 How. St. Tr. 215. But a court of equity can act upon the person of one residing here, and there- fore, with regard to any con- tract made concerning such lands, or any equity arising between persons in this coun- try respecting them, the court will hold the same jurisdic- tion as if they were situated in England, and imprison the party disobeying its or- ders. Archer v. Preston, 1 Eq. Ab. 133. Earl of Ar- glasse v. Musckamp, 1 Vem. 75. Lord Kildare v. Eustace, to. 419. Toller v. Carteret, 2 Fern. 494, 1 Salk. 404. Penn v. Lord Baltimore, cit. ante. Earl of Derby v. Duke of Athol, 1 Vet. 202. Ro- berdeau v. Rous, 1 Ath. 543. Foster v. Vassal, 3 Atk. 587. Lord Cranslown v. Johnston, 3 Ves. 170. White ▼. HaU, 12 Ves. 321. The determination, there* fore, that a court of equity will not direct an issue to try the validity of a will of lands abroad, seems open to consi- derable objection. The ob- ject of sending an issue to a jury, is, to direct the con* science of the court when de- ciding upon matters of fact ; its right to which, it may be observed, has always been recommended to be very ten- derly and sparingly exercised. Warden and Minor Canons qf i CASES IN CHANCERY. 186 St. Pants r. Morris, 9 Ves. 168. As the court, there- fore, as has been shewn, as- sumes to itself the jurisdic- tion of deciding upon equi- ties arising out of lands abroad, where it can act in personam, it seems proper that it should have the power consequential and auxiliary to that jurisdiction, of direct- ing issues in those cases, where, in deciding upon such Equities, it may be proper for it to have its conscience di- rected by the verdict of a jury upon the facts out of which such equities arise. The contrary opinion appears to have originated from con- founding the nature of an issue, which is merely a pro- cess auxiliary to a court act- ing in personam, and deciding upon an equity over which it has a clear jurisdiction, with local actions, which obviously cannot be maintained for lands abroad, or with the interpo- sition of a court of equity acting in rem by partition, don, cVc It is observable, however, 1763. that Mr. Yorke, in his opi* iT*"** . PlKJi nion upon Lord dive's jag- hire, 1 Collect. Jurid. 246, Hoabb. takes a distinction between the jurisdiction of the court for an account of rent issuing out of land, and cases of title, where the court decrees pos- session or title-deeds to be delivered up, or perpetual in- junction to quiet possession ; or where it directs issues of fad to be tried by juries at common law, upon bounda- ries, or upon the validity of deeds or wills, in respect of the execution of them, or their validity as instruments* In cases of this latter kind, the court, both by its interlo- cutory and final decrees, in some sort gives relief upon the merits of the strict title to the thing itself. See upon the general doc- trine the opinions of the other eminent persons who were also consulted upon the sub- ject, ib. 249, ct sea. 187 CASES IN CHANCERY. 2d & 3d May, UNETT v. WILKES. 1763. s c Amb. 430.° Eti contra. (Reg. Lib. b. 1762. fol. 279.) Testotor,poi>. De. Wilkeb, by will, 22d February, 1759, after hold and copy- giving several legacies to his servants, devised to the d^lTVTch" Reverend WiUiam Astley and Ruper Dovey, and their latter his man- heirs, all his real and personal estate, of whatsoever kind non-house was ^j denomination, in trust, to receive the rents, profits, part,after certain ' > r * legacies, devises and interest on the same, and pay the produce from time personal estate to *° t * me to ^ 8 w ^ e ' ^ XB ' ^ rances WMke*> or else that Lis wife for life ; they permit and suffer her to receive and give discharges heir at law : *° r *he 8ame during her life, and in case she should think held, from an ^ proper to continue and dwell at Willenhall, at the house ^m 9 if she should he then inhabited, that then they permit and suffer her think proper to f or ^ ^m aforesaid, to make use of all his household reside at hit said mansion-house, goods, plate, books, implements of husbandry, and stock intendeVr*? ' °^ a ^ kinds, as cows, horses, pigs, hay, corn, clover, and vise his copyhold, such like things, whether specified by name or not But therefore ought 1 * * n case 8 ^ e 8 h ou ld not think proper to continue there, to be put to his that then they should deliver to his said wife his chaise, and the horses belonging to it, and such horse and horses as she should choose, and what plate, bedding, or linen, she should have occasion for, in furnishing some other house in a manner agreeable to her ; and that they should permit and suffer her to enjoy and use all such things as long as she lived, and that all the rest of his goods should be by them converted into money, and placed out at in- terest, which interest they should receive and pay her from time to time as it became due, or they should per* election. CASES IN CHANCERY. 188 fflit her to receive the same as long as she should live. And after giving several pecuniary legacies to be paid after her death, he directs the trustees to convey, trans- fer, give, or deliver to the plaintiff, the Reverend Mr. Thomas Unett (his heir at law), all his real estate, and all the rest and residue of his personal estate, and settle it on him and his heirs for ever. The testator, at the time of making his will, and at his death, was seized of a freehold estate of inheritance of about i?140 a-year, and of a copyhold estate of about jP200 a-year, but did not surrender the copyhold estate to the use of the will. His mansion-house at Willenhall was copyhold. After his death, the plaintiff, Unett y claimed the copy- hold as heir at law, for want of a surrender, and also claimed the freehold and personal estate in remainder, under the devise in the will, and brought his bill for an account of his personal estate against the widow, who had taken and obtained administration to her husband, and to have the trusts of the will performed : offering to confirm her life estate in the freehold property. The cross bill was brought by the widow to Compel Unett to make his election, either to take under the will, or as heir at law ; and in case he should elect to take as heir, to have a compensation out of the personal estate and effects of the testator, equal to the interest in the copyhold, which the testator intended to give her by his will (a). (a) In Green v. Green, 2 Meriv. 86, Lord Eldon con- sidered it a question of great difficulty, whether, a party electing to take one of two beneficial interests, was bound only to make compensation to VOL. II. those who are disappointed by the election, or to surrender entirely the other part of the title under which he claims* In Tibbits v. Tibbits, 1 Ja~ cob, 319, he seemed to think the old principle of the court 1763. Unktt V. WlLKBS. 189 CASES IN CHANCERY. 1763. Unbtt V. Wilkes, The Attorney-General and Mr. Sewell for the plain- tiff; Mr. Ambler and Mr, Madocks for the defend- ant. * The Lord Chancellor. I am clearly of opinion, that this case is within the de- termination of election, and that the plaintiff Unett must make his election. The testator's intention was manifest to devise his copyhold estate to his wife for her life, by the general words all his real estate (a). I do not, however, depend upon the construction to be put upon those general words when standing by themselves ; but the subsequent words, " in case she should continue to live at WMenhaU" &c. put it out of doubt, for his house at WillenhaU is copy- hold, and that part of the will supposes he had before given her the house for her life, which could only be by the general words, and if they would pass his mansion- house as copyhold, they would all his other copyhold estate. The plaintiff, by claiming the copyhold, would disappoint the testator's intention, and therefore must make his election. His lordship also held, that he had determined his election to take under the will by an agreement he had entered into with the widow, about buying her interest in the personal estate; but this last question was not argued, or spoke to by the plaintiff's counsel, but taken up by was compensation, till shaken by later determination. See the doctrine fully discussed in Mr. Swansion'a note to Gret- ton v. Harvard, 1 Swa. 433. (a) See Sir T. Plumer'% observations in Sampson y. Sampson, 2 V. $ B. 337. CASES IN CHANCERY. the court on my mentioning it as counsel for the de- fendant (Amb.). 190 The decree declared, that his lordship was of opinion, that the plaintiff, Thomas Unett, must take altogether under the will of the said testator, or not any legacy or devise thereby made or given to him ; and is of opinion that the said testator intended by his said will to pass his copyhold estates to trustees for the benefit of his widow for life, with remainder to the plaintiff Unett in fee ; that the plaintiff Utiett do surrender the copyhold estate to the use of the said defendant for life, with remainder in fee, accounts, &c. 1763. Unett v. Wilkes. See the case of Judd v. Pratt, 13 Fes. 168, which was likewise a question of election upon copyholds. As to the general doctrine upon, election, vide Forrester v. Cotton, ante, Vol. I. 532, and note to it. MORRIS v. MAC CULLOCK. (Reg. Lib. b. 1762. /o/. 315.) 13th May, 1763. S.C. Amb. 432, This was a bill brought to be repaid the sum of i?200 Money advanced which the plaintiff had paid to the defendant for procur- defendant to pro- inxr him a commission of lieutenancy in the marines. The cure him a com- ° mission in the marines, decreed to be refunded with interest, plaintiff having, after six months, been discovered to have worn a livery, and being thereupon discharged : first upon grounds of public policy, and secondly, as plaintiff had been imposed upon, defendant knowing that he was incapable of holding the commission. o2 190 CASES IN CHANCERY. 1763. defendant was a linen-draper, and entered into treaty MoTTjg ^rith the plaintiff, who was a livery servant to Captain v. Bendishy to procure him a commission in the marines for Mac Cullock. ^200 ; the plaintiff not having the money, applied to £ 191 ] his master to lend him i?200 to pay for the commission, which he refused, and gave as a reason, that it would be very improper for him to be instrumental in getting the plaintiff, who was a servant, into the marines as an officer; and that all the officers of the corps would be offended at it. Captain Bendish, who was examined as a witness in the cause, deposed, that the defendant was in the passage of his house when he gave his reason to the plain- tiff for refusing to lend him the money, and that he left the parlour door ajar on purpose that the defendant might hear the reason ; and stated it to have been his positive belief that the defendant did hear it. The treaty, however, went on, and the plaintiff having obtained the money from some other quarter, agreed for the commission ; and accordingly the defendant, being acquainted with Mrs. Stot y who was, or pretended to be, the wife of a captain Stot^ and was intimately acquainted with the late Admiral Boscawen, did, by her means and interest with the admiral (who was then one of the Lords of the Admiralty), obtain a commission of second lieu- tenant for the plaintiff, who paid him for it £ 200, of which the defendant paid Mrs. Stot £5Q for her ser- vice. Mrs. Stot swore that the commission was first ob- tained for the defendant, but that his wife being unwill- ing he should take it, he prevailed on her to recommend the plaintiff. The plaintiff went to Portsmouth with his commission, and after having served about six months, was discovered to have been a livery servant ; upon which the officers re- fused to roll with him, and sent a letter upon the subject to the secretary of the Admiralty, which was laid before CASES IN CHANCERY. 191 the Lords of the Admiralty, and the secretary, by their 1763- direction, wrote a letter in answer, commending them, and -mT^ ordered the plaintiff to be discharged. And it appeared v. in evidence that the plaintiff was discharged in conse- ^ AC Cullocx. quence of that letter, and for having been a livery servant, and for no other reason. The Attorney-General, Mr. Sayer, and Mr. Bicknell, [ 192 ] for the plaintiff, contended, first, that he had been im- posed upon by the defendant, and had not the benefit of the commission for which he had contracted, the defend- ant knowing the plaintiff could not hold it. Secondly, that the court would decree the money to be repaid upon public considerations, for the same reason that the court decrees against place brocage bonds. Law v. Law, 3 P. W. 391. and For. 140. Mr. SeweU, Mr. de Grey, and Mr Jones, for the de- fendant. The plaintiff was not imposed upon ; he had what he bargained for, which was the commission ; the defendant did* not warrant his qualification. It is like the case of Ive v. Ash, Prec. Can. 99. The plaintiff could have no merit in a court of equity, for if the transaction, was wrong, and such as ought to be discouraged, he was a party to it. It appears, by Mrs. Stofo evidence, that the commis- sion was first obtained for the defendant; and the de- fendant, therefore, was not selling his interest so much as selling his commission, which is not uncommon, and the crown often gives leave to do it. There was nothing illegal in such a transaction, and no imposition on the plaintiff. The plaintiff's remedy, if he is entitled to it, is at law, in an action for money had and received, when the whole transaction would be disclosed to a jury, and they would give proper damages. Nothing stands in the way of such an action, and therefore this is not like the 193 CASES IN CHANCERY. 1763. ease of place or marriage brocage bonds, where the bonds Morris tre %°°^ at " aw * an( ^ can on ' v ^ ^ ^ m a co* 11 * °f v. equity. Mac Cullocr. The Lord Chancellor. I have not the least doubt on this case ; and if there is no precedent of such a determination as I shall make, I have no scruples to make one, and shall glory in doing it. The general question is, whether this case is within the jurisdiction of the court ? I lay down this rule, that if a man sells his interest to procure a person an office of trust or service under the government, it is a contract of turpitude : it is acting against the constitution, by which the government ought to be served by fit and able per- sons, recommended by the proper officers of the crown for their abilities, and with purity. This case is within the reason of the determinations upon marriage brocage and post-obit bonds. It is one of the most useful juris- dictions of the court, and ought to be exercised upon all occasions. By this means the most innocent and pure officer of the crown, whose business it is to recommend, may have his honour traduced and scandalized. It is no uncommon thing to sell commissions in the army, but then it is done with the leave of the crown, as a method to reward merit with economy, where an officer, who has deserved well, desires to retire, and the person to succeed him is ex* amined by the secretary at war, and approved as a proper person : that was not the case here, but the defendant sells his interest with Mrs. Slot to procure a commission. The case of Ive v. Ash is very different : the commission was sold by leave of the crown, the defendant surrendered, and it was the plaintiff's fault that he did not take it. I am also of opinion, that if the defendant might sell CASES IN CHANCERY. 194 interest, yet the plaintiff has been imposed upon. I 1763. do not believe the defendant ever intended to take the Morris commission himself; his name was not entered on the list, v . nor is it in other respects at all probable ; and he knew M AC Cullock. that the plaintiff was incapable of it, by having worn a livery. In cases of relief, upon grounds of public policy, the objection that a party does not deserve the relief, as being particeps criminis, never pre- vails. Neville v. Wilkinson, 1 Bro. C. C. 548. Hart well v. Hartwell, 4 Ves. 811. Hatch t. Hatch, 9 Ves. 298. Shir- ley v. Martin, cit. ib. nam. Shirley v. Ferrers, and 3 P. W. 75 ». and more fully in Roche v. O'Brien, 1 Ba. and Be. 358. East ab rook v. Scott, 3 Ves. 456. The public interest re- quires that the relief should be given ; and it is given to the public through that party. Thompson v. Thompson, 7 Ves. 470. Lord St. John v. Lady St. John, 11 Ves. 536. Osborne v. Williams, 18 Ves. 3/9. Vide Nash v. Ash, ante, Vol. I. 378. 6th June. 1765. HUSSEY v. BERKELEY. S. C. Amb. 605. {Reg. Lib. a. 1762. fol. 530.) SiS^' The Countess Dowager of Tyrconnel, by her will, Description of bearing date the 26th of May, 1726, after giving legacies ^ doubtful to two of her grandchildren, Lady Netterville and Mrs. whether it ap- plied to mother or daughter, held from the construction to mean the former : extrinsic evidence admitted, but held to amount to nothing. Opinion given that the word grandchildren in a will, comprehends great grand" children, unless the intention appears to the contrary ; in the present case it was so held, on the ground of the testatrix having in another part of the will de- scribed a great grand-daughter as a grand-daughter. Widow of a grandsdn held not to be comprehended under the description of a grand-daughter. 194 CASES IN CHANCERY. HU88EY V. Berkeley. 1763* Hussey, of <£100 each to buy rings, appointed William, Lord Berkeley, her executor ; desiring him to pay and dispose of the residue of her personal estate, after pay- ing her debts and legacies to such person and persons, and to such use and uses, and in such manner, as she should, by any letter or writing under her hand, direct and appoint. By a codicil in the nature of a letter, of the same date as her will, she gave legacies to several of her great- grandchildren, and also to Lady Dillon, who was the daughter of her grandson, Lord Dillon: she directed that the i?100 given to Lady Netterville and Mrs. Hus- sey should be paid out of her effects in Ireland. She gave to Miss Hussey her Indian screen, together with all her china in London ; in another part of the codicil she gave the china in a small Indian trunk, as well as the china in another chest, to her grand-daughter, Miss [ 195 ] Hussey ; and if her effects should prove to be more than she had already given away, she desired the residue might be divided between her grandchildren named therein. The countess left several grandchildren and great- grandchildren surviving her, and three questions were made. First, Whether Mrs. Hussey, the wife of the plaintiff, or her daughter, Miss Hussey, were meant by the description in the will ? and it was proved that the testatrix used to call Mrs. Hussey by the title of Miss ; and several letters from the testatrix were produced which were directed to the Honourable Miss Hussey, which, it was contended, both from the contents and the title of " honourable," which applied to Mrs. Hussey and not to her daughter, to be intended for the former. The second question was whether the great-grandchildren should take a share of the residue under the description of grandchildren ? and the case of Crooke v. Brookeing, 2 Vern* 50, 106. was cited, which was a devise of «£1500 CASES IN CHANCERY. 196 in trust for the children of A., who had one child and several grandchildren ; and it was held that the latter should not take. The third question was, whether Lady • Dillon, who was only a grandchild by marriage, should take under that description ? The Attorney-General, Mr. de Grey, and Mr. Con, for the plaintiff; Mr. Sewell and Mr. Wedderbume, Mr. Willes and Mr. Ambler, Mr. Perrot and Mr. Madocks, Mr. Hoskins and Mr. Lucas, for the different defendants. The Lord Chancellor. As to the first question : I am of opinion that the testatrix meant the great grand-daughter by the descrip- tion of Miss Hussey ; she has made use of the expression Mrs. Hussey. in the codicil, which shews she meant distinct persons : the letters determine nothing. As to the second question : I admit the case of Crooke v. Brookeing. The word children meant those in the degree of relationship in the first descent (a) ; but as to (a) So Lord Alvanley in Beeves v. Brymer, 4 Ves. 608. remarked that children might mean grandchildren where there could be no other con- struction, but not otherwise : and Sir W. Grant, in Rad- cUffe v. Buckley, 10 Fe*.201. has observed, that there are 1763. two cases where the word has received this construction; " first, the case of necessity, where the will would remain inoperative unless the- sense is extended : next, where the testator has clearly shewn by other words* that he does not use the word ' children* in the proper sense, but means it in a more extensive signi- fication." Vide, also, Daven- port v. Hanbury, 3 Ves. 257- (where Wyllie v. Blackman, Amb. 555. & 1 Fes. 194. is more correctly stated). Horse- pool v. Watson, ib. 383. Free- man v. Parsley, ib. 421. Mayott v. Mayott, 2 Bro. C. C. 125. Silcox v. Bell, 1 S. & S. 301. Shelley v. Bryer, 1 Jacob, 207- HUB8BT V. Bbbkslsy. [196 1 196 CASES IN CHANCERY. 176a HuseHY V. Bbbkslby. great grandchildren, I incline to think that the word grandchildren would, without further explanation, com- prehend them ; for in common parlance, which is the true way of interpreting words in a will, the word grand- children is used rather in opposition to, and exclusive of, children than as confined to the next descent, the children of children, and must, I think, have the effect of compre- hending both, unless the intention appear to the contrary ; but in the present case there is no necessity to give any opinion upon that point, as here the testatrix has, in so many words, declared, that she meant to comprehend great grandchildren under the word grandchildren ; for she has given the specific legacy of china to her granddaughter, Miss Hussey, who is, in fact, her great granddaughter, the daughter of her granddaughter Mrs. Hussey : that, I think, is decisive of the question. As to the third : there is no colour for considering the widow of the grandson as a grandchild, she is only so by marriage : the testatrix meant such as were her grand- children by blood. [197] 7th & 8th June, 1763. STANHOPE v. MANNERS. (Reg. Lib. Min. Trin. 1763.) ST 1 ^"!^*^ By indenture of moTt fP8 e > bearing date the 19th of contained a pro- January, 1759* Sir William Stanhope borrowed i?lO,OO0 viso that as often as the interest should be paid half yearly on the days appointed, or within three months next after each, so much should be deducted as would make the interest 3} per cent. By a separate agreement, mortgagee covenanted not to call in the money within five years, unless the interest should be in arrear. The first half year's interest not having been tendered till after the three months, but the second half year's interest before: held, first, that mortgagee was only en- titled to interest at 5 per cent, for the half year which had been tendered after the time ; and secondly that in consequence of the default, he was entitled to call in his money. CASES IN CHANCERY. W . Mannkbs. [199] binson, for the plaintiff; Mr. Sewell, Mr. de Grey y and Mr. Hoskins> for the defendant. The Lord Chancellor. * Two questions have arisen in the course of this trans- action, and they are in the order in which Mr. Attorney- General has stated them. First, Whether the first de- fault of paying interest within the time stipulated de- feasances the agreement of abatement of interest, and annihilates the same ? And secondly, Whether, in the case that has happened, Lord William Manners is re- lieved from his contract to continue the money for five years ? Though I see no unreasonable circumstances in the present transaction, yet this being the first case of a load for a fixed unusual stipulated time, made during a period of public distress when money was dear, it behoves me to be cautious in setting a precedent upon the duration of the term, and the quantum of interest as it relates to such duration. I think, however, that from the circumstances attend- ing this case, I shall be relieved from peculiar difficulty ; for I see nothing inequitable in the agreement, either in point of duration or quantum of interest, and the case must be determined on the true construction of their agreement. It has been truly said, that the authority of this court has assumed, in cases of mortgages, the old physical maxim forma dot esse ; and that if the interest once runs at the larger rate, it shall not be abated, unless you hit the bird in the eye, and pay or tender within the precise time; that, on the other hand, if it first runs at the lower rate it shall not be raised even on a gross default (a) ; (a) Lady Hoiks v. Wise, ib. 316. Jory v. Car, Prec. 2 Vern. 289. Strode v. Parker, Can. 160. NicholU v. Af ay- CASES IN CHANCERY. 199 though, in fact, the substantial reasonable agreement between both parties is, if you are punctual to the time agreed upon, you shall pay less than if you delay, and put to me an inconvenience. I believe all authorities sensibly founded, but I never heard, or could myself discover, the sens$ of this distinc- tion. But that is not the present case, for this is a special agreement, and words cannot be stronger to express the intent of the parties, that in every instance, when the time had been neglected, the abatement should not be accepted ; in every instance where the 3f was tendered in time, that it should be accepted : and this seems a fair circumstance attending an agreement of time, and the contrary opinion would be very dangerous, vis. that one default should run through the whole term. It is very different from the case of common mortgages ; the mort- gagor may relieve himself by transferring the mortgage. Mr. SeweU seemed to aim at a middle case, as if Lord William ought to have 5 per cent, from the time of notice ; but I do not know how to reach that : it is not within the stipulation, and if a bill of foreclosure had been brought, I must, as I do in all other cases, have given time. As to the second point, I am of opinion, upon the same construction of the agreement, that Lord William is at liberty to recover the money. The words are, " at any time ;" and this was reasonable, for if no interest what- ever was paid, though it might be running at 5 per cent., 1703. Stanhopb V. Mannbbs. [ 200 ] nard, 3 Atk. 519. Walmcsley v. Booth, Barnard, Ch. Rep. 481. Bonqfous v. Rybot, Burr. 1375. which cases have overruled Marquis of Halifax v. Higgens, 2 Vern. 134. & Brown v. Barkham, 1 P. W. 652. Vide also Scion v. Slade, 7 Ves. 273. «» CASES IN CHANCERY. 1768. yet it w« right that be should have the power he charged the premises with the further sum of .£1342 14*. lid This was a bill for interest upon the whole sum of i? 16,589 14*. lid from the 17th March, VJ5>7, or for a foreclosure. The Attorney-General and Mr. de Grey for the plaintiff; Mr. Sewell and Mr. Wedderburne for the de- fendant. [ 201 ] The Lord Chancellor. The second point made by the court in Mocatta v. Murgatroyd (a) determines this case. I am of opinion that («) 1 P. W. 395. CASES IN CHANCERY. 901 the interest cannot be turned into principal by the in- dorsement of the 17th of March) 17 5 7> ** against the subsequent annuities and incumbrancers, Mrs. Digby having had notice of such incumbrances. The case of Greenly v. Howe, at the Rolls, 18th February* 1763, cannot alter my opinion. The ground his Honour proceeded upon was, that if the first mort- gagee had filed a bill, his interest, after a report con- firmed, would become principal ; and, therefore, it was reasonable that that might be done amicably which might be got at by adverse proceedings, and especially as the costs of such adverse proceedings must have come out of the estate, and consequently would have lessened the security of the other incumbrancers. If a bill had been filed by the first mortgagee, it seems the second might have redeemed him. 17©. Digby t>. &U0G8. Mr. Kenyan had this note from Mr. Blencowe. (Aston.) COUNTESS GOWER v. EARL GOWER. (Reg. Lib. a. I762./0/. 448.) 14th June, 11*9. Amb. 61%, Eabl GWjea, by a clause in his will, bearing date the 22d of December, 17*9, directed, and appointed, and thereby declared his desire, that all his plate, furniture, household goods, and all books and other furniture of his library, and all stores and implements of all sorts and kinds, and other goods and chattels whatsoever which should.be in and about his dwelling-house and out-houses By devise of all testator's goods and chattels In and about his dwelling house and out-houses at A. at his death : held, that run- ning horses passed. 203 1763. Countess Gowbr V. Earl Gowbr. CASES IN CHANCERY. at Trentham at his death, and all other, his plate and household linen (except as therein excepted), should be preserved for, upon, and be held and enjoyed by such person or persons as should be entitled to his said estates in the counties of Stafford and Salop, by virtue of the limitations in his son's (the defendant's) marriage settle- ment. Upon a bill brought by the executors to cany the trusts of the will into execution, one question was, whether the running horses at Trentham passed by these words t The Lord Chancellor. I think that the testator's intention was, that nothing about his seat at Trentham should be disturbed to the prejudice of the present Earl, but that every thing both of profit and amusement should pass* I am therefore of opinion that the running horses passed by the description of goods and chattels ; and therefore so much of the bill as claims an account of the testator's running horses, and other effects at Trentham, must be dismissed. 18th June, 1765. SLC. feiod/MSS. TAYLOR v. CLARKE. (Reg. Lib. b. 1762./©/. 3S5.) Testator devises Thomas Bryan, by his will, bearing date the 26th of leasehold pre- April, 1748* devised (amongst other things) to his exe- mises to his exe- _ . . cutor, after pay- cutors, their executors and administrators, all his farm ment of certain m & fo^ at Teddington, in the county of Warwick, sums to pay the -© * j * rents to A. for life, and then that his natural daughter should have the same for her life ; and in case she should die, leaving no lawful issue, he beaueathed the premises to his executors, to be sold for the purposes of the will : held, the devise over the executors not too remote. CASES IN CHANCERY. 2SS wfifth be held by lease from the crown, upon trust to re- n%w the said lease out of the rents, issues, and profits thereof ; and after payment of the yearly rent reserved thereon, that they should pay the residue of the said rents, iascfes and profits to Martha Clarke, for her life ; and t&en that his natural daughter, Ann Bryan, should have and possess the said farm and lands, and the lease and leases thereof, for her life : and in case she should die, tawing no lawful issue, then he bequeathed the said tatoehold premises to his said executors, to be sold for the purposes of his will. The cause coming on for further directions, one ques- tion was, whether the bequest over to his executors was void or not, as being too remote ? Mr: Sewell, Mr. de Grey, and Mr. Keate, for the ex- cfenfors ; the Attorney-General and Sir Anthony Abdy f&r the infant, Ann Bryan. 1783. Taylor v. Clarke. The Lord Chancellor. The questions in this point are, 1st, What interest Ann Bryan took under the first words of the bequest ? and 3dly, How those words are controlled by the subse- quent words? 1st It is certain that a bequest of a chattel to one and tbe heirs of her body, gives her the whole absolute in- terest : it is the same where it is to one for life, and after- wards to the heirs of her body, as these words would con- stitute an estate tail in a freehold ; but though it is so in legal strictness, it is very far from being so in the vulgar acceptation of testators ; and, therefore, in the case of per- sonal estate, where the court can take hold of particular words, it will put the vulgar sense upon a bequest. I construe the first words, " to her for life, and the heirs of her body", as if it had been to her and her executors. But however absolutely a man may have given by his will, he may control that gift by subsequent words, and vol. ii. p 204 CASES IN CHANCERY. 1763. Taylor v. Clarke. make the interest which he has given depend upon s. contingency. I think I am bound by the authorities to put a construction on the words " leaving no issue", agreeing with the testator's intention, expressed by those words in their popular acceptation. Forth v. Chapman (a) is in point, and has never been disputed. The present case is free from one strong objection which existed in that, where there were freeholds as well as leaseholds, and yet the same words were construed differently when applied to the different sorts of property. Here the testator has shewn his intention in two places : first, by the express words of limitation for life ; secondly, by the subsequent words " not leaving", &c. Peacock v. Spooner(b) in- deed had no words of devise over ; but it has always ap» peared to all judges as a very strong determination. I searched the Lords Journals to see whether any notice, was taken of the statute of 11 H. *]. but no mention was made of it by any of the judges : possibly, therefore, sub- sequent judges may have found it out, in order to sup- port the determination (c). In Webb v. Webb (d), Lord Harcourt was perfectly right to confine the determination of the Lords to the same specific case ; but in Webb v. Webb there was no limitation over : it does not there- fore reach this case. Read v. Snell (e) comes very near the present case. Beaucletk v. Dormer (/) was in case she shall die without issue. Upon the whole I think this contingency is such as the law will allow. («) 1 P. W. 663. \b) 2 Ver. 43. 195. 2 Freem. 124. (c) Vide Lord Hardtvicke's observations on this case in Theebridgev. Kilburne, 2 Fes. 233. and in Garth v. Bald- win, ib. 660. (d) 1 P. W. 132. ( for v. securing £5000, and by an indorsement they are after- Cox. wards made a security to Drummond for £\0QQ more. Neither Drummond nor Markham had actual personal notice of the mortgage to the plaintiff, nor of each other's mortgage. But they admitted in their answers, that they had employed Cox as their sole counsel and agent in these transactions. They had both registered their mortgages, which the plaintiff had not done. This was a bill by the plaintiff for a sale of the pre- mises, and to be paid the money he had advanced in the first place. Mr. Yorke and Mr. Sewell for the plaintiff. Three questions arise for the determination of the court upon the present case. The first is as to the extent of the plaintiff's security, whether it is confined to the ground rents, or extends to the buildings ? There seems little difficulty in that point. Cox intended to give a security to the extent of his interest in the premises, and the plain- tiff to receive it. The whole premises are mentioned in the declaration of trust. The second question is upon the point of notice, whether the defendants Drummond and Markham are to be affected by the notice given to Cooo. It has been long since decided that notice to agent affects the conscience as much as notice to principal. Bro- ther ton v. Hatt, 2 Vera. 57*. Jennings v. Moore, 2 Vern. 609. The third question is, whether notwithstanding such notice the defendants are not entitled to priority by reason of their securities being registered before the plain- tiffs ? The object of the registering act was to preveht prejudice to bona fide purchasers, and is directed against prior and secret conveyances. But where the subse- quent purchaser or mortgagee has due notice, the evils against which the statute intended to guard, viz. secrecy, CASES IN CHANCERY. 827 do not exist. It is like the practice upon the statute of 1764. Hen. 8. on conveyances by bargain and sale enrolled. It g **£* * never was doubted upon that statute that notice would ©. not affect the conscience of a subsequent purchaser. In C° x * Le Neve v. Le Neve (a) this doctrine is well laid down by Lord Hardwicke, and the cases cited by him can leave no doubt upon the point. Lord Forbes v. Neelsonffi). Blades v. Blades (c). Chivall v. Nicholls (d). The Solicitor- General and Mr. Skynner; Mr. Comyn ; Mr. Wedderburne and Mr. Madocks, for the different defendants. As to the point of notice ; the plaintiff left Cox in the possession of the legal estate which has now come to Drummond ; he is not a purchaser with actual notice, which he positively denies by his answer. It is at most constructive notice, which this court ought to be very unwilling* to act upon. As to the extent of the security, it was evidently the intention of the plaintiff and Cox to make the ground rents only a security to the plaintiff. The recital of the declaration of trust mentions that Cox was to dispose of the ground upon which the new squares and streets were to be built at proper ground rents. They only intended the ground rents to be a security, in order to leave room to Cox to execute the general scheme, which could not be done if the security were to extend to die buildings. The Lord Chancellor. I am clearly of opinion that Colonel Sheldon was to have a security to the extent of Cox's interest, and that (a) Amb. 436. 3 Atk. 646. (c) 1 Eq. Ab. 358. 1 Fes. 64. (d) 1 Stra. 664. (6) Nom. Forbes v. Denis- lorn, 1 Fes. 67. 4 Bro. P. C. Ed. Torn!. 189. 228 CASES IN CHANCERY. 1764. the recital in the declaration of trust makes no difference, a If a man had taken a building lease of Cox. with notice Sheldon e A. of the plaintifFs mortgage, I think he would have been Cox. liable to the plaintifFs demand; and though it would have been a very hard case, and I should have felt great pain in making such a decree, I think I should have been bound to declare him so. As to the second point, it is a fixed and settled prin- ciple that notice to an agent is notice to the principal. If it were held otherwise it would cause great inconveniences, and notice would be avoided in every case by employing agents. Cox being owner of the estate makes no differ- ence. He acted in different capacities ; and it is therefore the same as if it had been in different persons. There is no difference also between personal and constructive no- tice in its consequences, except as to guilt (a). 3dly. The statute of Anne (b) was only intended to protect purchasers against secret conveyances. It does not affect the question of notice. It leaves that as if the statute had never been made (c). (a) Vide as to constructive Sch. & Lef. 102. et vide Bid- notice, Horvorth v. Deem, dulph v. St. John, 2 Sch. & ante, Vol. I. 351. Lef. 532. But in a Court of (b) 7 Anne, c. 20. Law the deed last registered (c) Vide Morecock v. Die- is void, although the party kins, Amb. 678. Jolland v. claiming under it had notice Stainbridge, 3 Ves. 478. and of the prior execution of the see all the cases elaborately first. Doe v. Alsop, 5 3* commented upon in the judg- & A. 142. ment in Bushell v. Bushell, I CASES IN CHANCERY. 229 HALE V. BECK. 7th and 9th July, 1764. s* c. {Reg. Lib. a. 1763. fol. 368.) SeweU,MS&. Elizabeth Hale by her will, bearing date the 6th Legacy to trus- of March, 1758, gave to trustees ,£300 upon trust, from ^£*° ^ P ut time to time during the widowhood of the plaintiff Anne curity, the in- Hale, to place the same out at interest upon such se- p ^" to ^ and in curity as they should think meet; and the interest and case she marry or produce thereof from time to time to pay to the same to be paid to A plaintiff during her widowhood; and if she should marry in li tr * 18t for ner ... . . . , ._ ~~^~ . ., till she came to or die, then the interest of the said <£ 3 300 to be paid to the age of twen- the plaintiff Anne Hale, her daughter, an infant, in trust u^ n f h yea ? : • for her till she came to the age of twenty-one years : the absolutely en- testatrix likewise gave the sum of ,£1000 to the same f££ tothe trustees upon trust to pay the interest to the plaintiff till she came of age ; and in case she was not entitled to a certain sum under the marriage settlement of her father, then to pay the whole of the said sum of but hat and pig-iron, then laden, or which should be laden oil or bill of laSng board the King of Prussia and Constant Matthew, con- *? delive i to t ^ J them. On the signed to him at Bristol from Virginia: and the consi- arrival of one of deration was mentioned to be the sum of ^8000, part of t ! le "^P* h ® J"" 7 r signs to another a larger debt due from Know to Light and Hutchinson, person, and By indenture bearing date the 21st of November, 1781, nJ^T^oT" Light and Hutchinson, in consideration of the sum of bankruptcy: ^3000 lent them by the plaintiff, assigned to him the said £ not having 11 two cargoes by way of security. No vouchers or docu- been ready to , . , , ,. , takepossessionof ments relating to these cargoes were ever delivered over the snip on her either to Light and Hutchinson or to the plaintiff: the ■"**?? had . * thereby permit- ships belonged to Knox, so that there could be no charter- ted A. to con- party ; and it was proved that in the Virginia trade it t^^^the was not customary to send the bills of lading otherwise statute of 21 Joe. than by the ship which brought the cargo. On the 3d of December the King of Prussia arrived in the port of Bristol, of which Know sent Light and Hutchinson advice, which they received in London on the 5th. In the interval between the 5th and the 11th Know entered the cargo at the custom-house, and landed part of the goods, which he sold. Neither the plaintiff nor Light and Hutchinson took possession of the cargo till the 11th, on which day Know committed an act of bankruptcy. , 332 CASES IN CHANCERY. 1764. Philpot v. Williams. This bill was brought by the plaintiff to have the mo- ney arising from the sale of these cargoes (which had by the consent of all parties been sold, subject to the present question,) paid to the plaintiff. The defendants were Lady Williams, who claimed under a subsequent assign- ment from Knox, the assignees, and Light and Hutchin- son. Mr. Sewell and Mr. Comyn for the plaintiff; Mr. Yorke and Mr. Hett for the defendants Light and Hutchinson, in the same interest with the plaintiff. Two objections are made to the claim of the plaintiff. 1st. That there was no proper assignment. . Ships at sea and cargoes are assignable though there be no delivery ; though it is prudent to have a bill of sale or bill of lading, but in the present case the impossibility of an actual de- livery takes it out of the statute of Elizabeth. The se- cond objection is, that Knox was left to order and ma- nage the cargoes, and was in such management at the time of the act of bankruptcy. The statute of James is directed against any person, with consent of the true owner, keeping possession of goods. Therefore if the goods are at home, there should be a delivery of them ; if they are abroad, the documents, as bills of lading, charter- parties, &c. should be delivered. Now here there was nothing left in the hands of Knox to deliver. Mr. Ambler and Mr. Madocks, Mr. Willes and Mr. Perryn for the other defendants. The Lord Chancellor. Although it has been allowed that a merchant having a cargo actually delivered on board of a ship consigned to him, or having a ship at sea, may assign such cargo or ship before its arrival, yet it is necessary that in every such case all the proper documents should be delivered over to the assignee. Thus, if the assignment be of the. CASES IN CHANCERY. 233 ship, the bill of lading must be assigned; or if of goods, the charter-party or bills of lading. If the fact be that none of these documents' exist, yet the party to whom the ship or goods are assigned over should be ready at the spot where the ship is expected to arrive, in order to be ready to take immediate possession. And this is founded on solid justice ; because were he to leave the ship or goods for a moment in the possession of the assignor, he might dispose of them, and commit great fraud and im- position on unsuspecting persons; for as consignee in possession he has an apparent right to dispose of the goods, or to assign the invoices or bills of lading. It is therefore at his own peril where any person takes such naked assignments without any document whatsoever. In the present case the bill of sale was in itself void, for it is of cargoes laden or to be laden ; and it has not been shewn that any were in fact there actually laden on board. Know, therefore, had nothing to assign ; and his bill of sale was fraudulent, and within the statute of Elizabeth. I also think that this case comes within the statute of the 21 Jac. I. c. 19. the goods being in the possession of Knox at the time he became a bankrupt. I must therefore dismiss the bill. 1764. Philpot V. Williams. The tranfer or mortgage of a ship or cargo at sea is generally made by an assign- ment of the bills of lading, &c But a bill of lading is by no means a necessary in- 8trument for the transfer of property in goods consigned to the owner. If the best delivery is given that the na- ture of the case will admit of, it will take it out of the sta- tute. Brown v. Heathcoat, I Atk. 160. Ex parte Mat' thews, 2 Fes. 272. GUlespy v. Coutts, Amb. 652. Atkinson v. M aim*, 2 T. R. 464. Ex parte Stadgroom, 1 Ves. jun. 163. 2 Cox, 234. Mantonv. Moore, 7 T. R. 67- Jones v. 234 CASES IN CHANCERY. 1764. Philpot 0. Williams. Dntyer, 15 East, 21. Meyer t. Sharpe, 5 Taunt. 74. But the delivery of the grand bill of sale will not be sufficient if there has been an opportunity of taking possession. Ex parte Matthews, ante. Hall v. Guerney, Co. B. L. 333. Where a ship however waa known to be in a foreign port* it was held not to be neces- sary for the mortgagee to take possession of her till her ar- rival in Great Britain. Ex parte Batson, 3 Bro. C. C. 362. 18th July, 1764. S.C. Amb.451. Corr,MSS. Testator by will executed pre- vious to the sta- tute of 9 Geo. 9. devises his real estate and also his personal to be laid out in land for a cha- rity; by a codicil subsequent to the statute not at- tested he con- firms the will : held that it operates as a new will, and that the bequest of the personal estate is void* THE ATTORNEY-GENERAL v. HEART- WELL (a). Richard H&artwbll by his will, bearing date the 13th of December, 1734 (which was previous to the sta- tute of mortmain (6)), devised all his real estate, and also after giving divers legacies, bequeathed the residue of his personal estate to be laid out in land, and settled to cer- tain charitable uses. By a codicil, bearing date the 16th of July, 1739, (made after the statute), and not attested by three wit- nesses, after giving certain legacies, he confirmed the dis- positions in his will. The testator died on the 11th of August* 1739> m & this was an information to have the real and personal estate applied according to the directions in the will. On the opening of the cause it was treated by the (a) The Editor has not been able to find any entry of this decision either in the Register book, or in the minute book. (6) 9 Geo. 2. c. 36. the time mentioned by the statute is from and after the 24th of June, 1736. CASES IN CHANCERY. 236 counsel for the information as a question already settled 1764. and determined by the cases of Ashhurnham v. Brad- r™ shaw (a), and Willett v. Sandford (b). Attorney- The Lord Chancellor, however, started a distinction be- General tween those cases and that part of the present case which Heartwbll. related to the devise of the residue of the personal estate to be laid out in land ; in those cases the devise was of real estate, here of personal, and a will speaks at different times with respect to the different estates. (This was a surprise upon the counsel on all sides, who were not prepared to speak to this question. However it was argued instanter. Amb.) The Lord Chancellor. I shall always think myself happy when I can by au- thority of law control foolish and superstitious acts of persons disposing of their estates in mortmain. The distinction in Ashhurnham v. Bradshaw is not now to be disputed. It was founded upon the certificate of eleven judges, though I think a great deal might be said against the determination. The true reason why a will of land takes effect from the making is, because a man is not presumed to give more than he had at the time. It might have been held that a will of land is not complete till death, and that till then it is ambulatory. The devise in that case would have been within the statute. However the judges were of a different opinion. That was the case of a real estate. But as of a per- sonal estate it admits of a different construction. It must be taken to be such as he leaves at the time of his death. The statute makes an intestacy. (a) 2 Atk. 36. (b) 1 Ves. 178. cit. Amb. 452. vol. ii. a 238 CASES IN CHANCERY. 1764. Arnold v. Kempstead. words, or by clear and mani- fest implication ; the instru- ment must contain some pro- vision inconsistent with the assertion of the right to de- mand dower. Strahan v. Sutton, 3 Ves. 249. Thomp- son v. Nelson, 1 Cox, 447- Birmingham v. Kirtvan, 2 Sch. & Lef. 444. Lord Dor- chester v. Earl of Effingham, Coop. Rep. 319. Chalmers v. Storill, 2 V. & B. 222. Dickson v. Robinson, 1 Jacob, 503. Fu/e also Clancy, p. 230, rf *eg. 3d ed. There has, however, been a considerable difference of opinion as to the application of this rule to the case of a devise of an annuity to the widow, charged upon the real estate. The first case in which the question arose (for the early cases cited in the argument merely decided that the gift of an estate to an- other person did not ex- clude the wife from claiming dower) was that of Pitts v. Snowden, before Lord Hard- wicke, cit. 1 Bro. C. C. 292, who held, that a devise to the widow of an annuity, with a clause of entry, did not bar her of her dower. This was followed by the present decision against the claim of the widow ; but it does not appear that Pitts v. Snowden was cited : it is indeed most probable that it was not, as Lord Northington would hardly have overruled the de- cision of so great an autho- rity, without having noticed it, and stated his reason. The next case was PiUareal t. Lord Galway (Atnb. 682. and more fully reported 1 Bro. C. C. 292. ft.) before Lord Camden ; who, having the two conflicting authorities before him, adopted the opinion of Lord Northington in the pre- sent case, and was afterwards followed by Sir Thomas Sewell in Jones v. Collier, Amb. 730 ; Lord Thurlow in Boynton v. Boynton, 1 Bro. C. C. 445. ; and Mr. Justice Bailer in Wake v. Wake, 3 Bro. C. C. 255. I Ves. jun. 335. The opinion of Lord Hardrvicke, on the other hand, in favour of the claim to dower, has been adopted by Lord Rosslyn in Pearson v. Pearson, 1 Bro. C. C. 291 ; Lord Thurlow in Forster ▼. Cook, 3 Bro. C. C. 347, and received considerable counte- nance in the elaborate judg- ment of Lord Alvanley in CASES IN CHANCERY. 239 French v. Da vies, 2 Ves. jun. 572, who, however, did not go the length of giving any de- termination upon the subject; that case only deciding, like Middlclon v. Cater, 4 Bro. C. C. 409. and Greatorex v. Cary, 6 Ves. 615., that an annuity claimed out of a mixed fund, composed of the real and personal estate, did hot bar the widow. Though the number and weight of these authorities are thus nicely balanced, yet it seems probable, both from the more recent date of the decisions in favour of the claim to dower, and from the language which the court has adopted in those and similar cases, that a stronger indica- tion of intention would now be required, in order to put the widow to her election, than the mere devise of an annuity, with a power of en- try to enforce the payment of it. This conclusion also de- rives great support from the late decisions, that the claim to dower is not barred by a devise to the widow of land for life, which is part of the same estate out of which she claims dower. Birmingham v. Kir wan. Lord Dorchester v. Earl of Effingham, fit. sup. 1764. Arnold v. Kempstead. WRIGHT v. LORD CADOGAN. Et i contra. (Reg. Lib. b. 1764. fol 83.) 9th, 12th, 13th & 14th Nov. 1764. S.C. Amb. 468. Seijt Hill, MSS. Francis Smith, alias Carrirtgton, upon his marriage A woman being with Mary, the sister of Sir Henry Englefield, by his trust f a mer- man in fee of lands, by articles previous to her marriage, reserves to herself a power of disposing of all her estate to such uses as she should think proper : an appointment after- wards made by her in favour of her husband and children held good, although no conveyance of the reversion was ever executed. Appointment to all and every the daughter and daughters of A. and the heirs of their body and bodies, and in default of such issue, over; there being only two daughters, and one of them dying under twenty-one without issue : held, that the surviving daughter was entitled, though there were no cross remainders. Testator gives to his executor an annuity of 200/. charged on his real estate and payable at certain specified periods ; by a codicil, attested by twa witnesses only, he gives him another annuity of 100/. payable as mentioned in his will: held, that the executor was entitled to both, the fatter annuity being payable out of 1 his personal es&te. 240 CASES IN CHANCERY. 1764- marriage settlement, dated the 27th February,lJ30, can* m"**** veyed his real estates in the counties of Lincoln, Lei* v . cester, Warwick, and Salop, to the use of himself for Lord Cadogan. Y£e, subject to a rent-charge of £ 500 per annum, for his intended wife, and chargeable therewith to the use of Lord Cadogan, Sir Henry Englefield and other trustees, for 500 years, for securing the same, and to raise portions for younger children in case of issue male ; remainder to his first and other sons in tail male ; remainder to certain other trustees for a term of 600 years, to raise <£8000 for daughters' portions, in case there should be no issue male ; remainder to his first and other sons by any after taken wife ; remainder to his uncles, Charles Smith and William Smith, successively, in strict settlement, with remainder to his own right heirs. Two powers of revo- cation were reserved : the one enabling Mr. Carrington to revoke the remainder to Charles Smith, and all the uses subsequent thereto, and by any writing or writings to appoint new uses ; the other enabling him, with the con- sent of his wife and the trustees of the term of 500 years, to revoke all or any of the uses of the settlement. There was issue of the marriage only one daughter, Mary Theresa. By indentures of lease and release of the 12th and 13th of October, 1748, Mr. Carrington executed the second power of revocation as to the Leicestershire estates, and conveyed the same to Lord Cadogan and Sir Henry Englefield, upon trust, to sell and pay debts. By indentures of lease and release of the 13th and 14th of October, 1748, he executed the second power of revo- cation as to the Warwickshire and Shropshire estates, t ftttd re-settled them to the same uses, &c. as were con- ' a $jto tained in the marriage settlement ; and also by indenture , , , -4. of bargain and sale, dated the 15th of October, 17*8, he *';'.*&■- conveyed the Lincolnshire estate to the same trustees CASES IN CHANCERY. 240 for payment of debts, and to indemnify them against 1764- charges, &c. w ^ ht * Mr. Carrington, by his will, dated the 31st January, v. 1748, after reciting the settlement of the 14th of October, Lord Cadooan. 1748, and the power therein contained to revoke and I *41 J new limit the estate, revoked the said estate for life to his uncle Charles Smith, and all the subsequent uses; and in case the said testator died without issue male, devised his Warwickshire and Shropshire estate, the uses whereof he had thereby revoked as aforesaid, to Lord Cadogan, Sir Henry Englefield, and William Plowden, and their heirs, upon trust, by sale or mortgage to raise money for the payment of his debts, &c. and the legacies and rent-charges thereby given ; and among others, he gave to his brother-in-law, the said Sir Henry Englefield, one yearly rent-charge of £200 for his life, clear of all taxes and deductions, payable half-yearly, at Lady-day and Michaelmas-day ; the first payment to be made on such of the said feasts as should next happen after his decease without issue male, as aforesaid, with powers of entry and distress for the recovery thereof. And subject to the trusts in the said trustees, he limited his said estate to his uncles, Charles Smith and William Smith successively, in strict settlement, with remainder to his own right heirs. As to all his personal estate of what nature or kind soever, he gave the same to his said daughter, Mary Theresa Carrington, if she should live to attain the age of twenty-one years ; but if she should happen to die under that age, he gave the same, and all the profits arising therefrom, to his uncle, Charles Smith, for life, and afterwards to his uncle William Smith. By a codicil, dated the 19th of May, 1749, and at- tested by two witnesses only, reciting, that in his will he ■» had bequeathed only £200 a year to his dear brother, 241 CASES IN CHANCERY. 1764. Sir Henry Englefield, he bequeathed to him the ad- x/^Z^L T ditional sum of i?100 a year more, payable to him as v. mentioned in his will. LordCADOGAN. * Mr. Carrington died on the 21st of May, 1749, leav- L 242 j uig hi s widow, and Mary Theresa, his only child. Charles Smith, the testator's uncle and first devisee in strict settlement, died on the 27th of August, 1753, with- out issue ; and Mary Theresa on the 1st of May, 1754, intestate, and without issue, and under the age of twenty- cme ; and the remainder in fee, subject to the estate for life to William Smith, and the limitations to his first and other sons, descended in moieties to Constantia Wright, then a widow, and mother of the plaintiff, and Catharine (who was then and continued to be unmarried), the sisters of the testator, and aunts and coheiresses at law of Miss Carrington. In 1755, a marriage having been agreed upon between the said Constantia and the defendant, Peter Holford, by indenture, dated the 15th of September, 1755, be- tween the said Peter Holford of the first part, the said Constantia Wright of the second part, and Sir Edward Smith, baronet, and Thomas Bramston, esquire, of the third part, reciting (among other things) that the said Constantia Wright had great expectations of a consider- able accession of fortune from several relations ; and that the said Peter Holford not being then in the actual pos- session of any estate out of which any provision might be made for the said Constantia Wright, it had been (amongst other things) agreed between the said Peter Holford and her, the said Constantia Wright, that all such estates, either real or personal, or of any kind what- soever, which should or might descend or come to her during her coverture, or to the said Peter Holford in her right by descent, or by virtue of any remainder or rever- sion, or of any devise, gift or bequest, or by virtue of the CASES IN CHANCERY 242 statute of distributions, or by any other means whatso- 1764. ever, should likewise be and enure to the said Constantia x^^^ _ ' Wright Wright for her sole and separate use, free from the v . control of the said Peter Holford, and no ways subject LohICadogan. to his debts, and to be applied and disposed of, from L 243 J time to time, as she should by any deed or deeds executed in her lifetime, or by her last will and testament, duly made and published in the presence of three or more credible witnesses, direct or appoint, notwithstanding her coverture. It was witnessed, that in consideration of the said intended marriage, and for better establishing and confirming the said agreement, he, the said Peter Holford, covenanted and agreed with the said Sir Edward Smith and Thomas Bramston, that he, the said Peter Holford, would, as soon as might be, at the request of the said Sir Edward Smith, Thomas Bramston and the said Constantia Wright, execute and perfect all deeds, acts, matters and things, conveyances and assurances as should be devised or advised by her counsel, from time to time, as often as any estate, real or personal, should descend upon or come to the said Constantia Wright, or to the said Peter Holford in her right, by descent, devise, bequest or gift, or by virtue of any reversion or remain- der then already limited, or afterwards to be limited, or by virtue of the statute of distributions, or by any other means whatsoever, would execute and perfect such deeds, acts, conveyances and assurances in manner aforesaid, for vesting the same in such persons as she should ap- point, in trust, for her sole and separate use, and to be subject to such dispositions as the said Constantia Wright should, from time to time, and at all times thereafter, make thereof, by any deed or deeds, writing or writings, under her hand and seal, or by her last will and testa- ment, duly made and published in the presence of three or more credible witnesses ; and that until the said Peter 243 CASES IN CHANCERY, 1764. Holford should convey and assign the premises in manner w therein above mentioned, that it should be lawful for the v . said Sir Edward Smith and Thomas Bramston, and the LordCADOOAN. survivor of them, or his executors, administrators, or assigns, to receive the rents and profits of all such lands [ 244 ] as might or should descend upon or come to the said Constantia Wright as above mentioned, during the said intended coverture, and also all such personal estate as aforesaid, and pay the same to her, or as she should appoint, for her separate use, and subject to the like dis- positions of the said Constantia Wright, notwithstanding her coverture. On the 21st of April, 1758, William Smith died un- married, and without issue, whereupon Mrs. Holford and her sister became entitled, in fee simple in possession, to all the estates of Mr. Carrington, in equal undivided moieties, subject to the trusts of the will. Mrs. Holford by her will, dated the 13th of May, 17^8, after reciting the said articles, and that she was entitled to one undivided moiety of the unsold estates of her brother, Mr. Carrington, by virtue of the power reserved to her by the said articles, and all other powers enabling her in that behalf, did limit, appoint, give, and devise all her undivided moiety of the said premises, to certain trustees, to the use of her husband, the de- fendant, Peter Holford, for life ; remainder to trustees for five hundred years, to raise portions for the younger children by the said Peter Holford ; remainder to her first and other sons by the said Peter Holford, in tail male; remainder to all and every her daughters by the said Peter Holford, in tail general, as tenants in common, and for default of such issue, to her own right heirs. Mrs. Holford died on the 17th of July, 1758, leaving the plaintiff and a daughter by her first husband, and CASES IN CHANCERY. 344 two daughters by the defendant, Peter Holford, Ca- 1764. therine Maria, and Constantia Maria : the latter sur- vaT*** vived her mother but a short time, and died unmarried v. and a minor. L "d Cadooan. Catharine Carrington, the other sister of the testator, by indentures of lease and release dated the 1st and 2d of June, 1759, conveyed all her moiety of the said estate to such uses as the plaintiff should appoint ; and in default [ 245 ] of such appointment, to the heirs of his body ; with pro- vision in the same indenture for raising the sum of £6,200 for the benefit of her niece, Catharine Maria Holford, in case it should be judicially determined that she was not entitled to her mother's undivided moiety of the said estate, under her mother's will. The plaintiff filed his bill in September, 1760, to carry into effect the trusts of Mr. Carrington^ will, and for an account, &c, and that the trustees might convey the said estate, as to one moiety, to the plaintiff and his heirs, and as to the other moiety, to the uses, &c. limited by the indentures of the 1st and 2d of June, 1759, &c. A cross bill was filed by the trustees for a general account and directions. Three questions were made ; two between the plaintiff Wright and the Holfords, and one between Wright and Sir Henry Englefteld. 1st. As to the validity of the appointment contained in Mrs. HolforcTs will. 2dly. In case such appointment was good, whether Miss Holford was entitled to, the whole of the estate by way of cross remainder, or whether the moiety of Constantia Maria, her younger sister, did not go to the plaintiff as heir at law to his mother. 3dly. Whether Sir Henry Englefield was entitled to the additional annuity of «£100 under the codicil. Mr. Yorke, Mr. de Grey, and Mr. Madocks, for the plaintiff. 246 CASES IN CHANCERY- 1764. 1st. As to the validity of the appointment under the W^^ott power. The only method of enabling a feme-covert to v. dispose of her inheritance by deed or will operating as an Lord Cadogan. appointment, are either by a conveyance to uses or trusts, before marriage, reserving such power ; or else by fine, in which the wife and husband join after the marriage, with a deed to lead the uses, reserving such power. Per Lord [ 246 ] Hardwicke in Peacock v. Monk (a). But without one of these two modes her will of real estate would be ineffectual against her heir at law. In that case his lord- ship stated a doubt very strongly, that a feme-covert could not dispose of her estate so as to bar her heir, by a bare agreement. So in 7 -E- 4. fol. 14. The wife being cestuy que trust, she and her husband sold the land, and he received the money, and they both required the feoffee to make estate to the vendee, yet after the hus- band's death she was relieved against the feoffee. His lordship there thought that it was necessary that she must do something to alter the nature of the estate. In Thayer v. Gould (6), it was said by Lord Hard- wicke, that a feme-covert could not convey an equitable estate unless examined by the court. Though marriage articles, from the consideration which pervades them, will bind the husband to do all acts to enable his wife to make a disposition of his estate ; yet in case of those acts not having been done, the heir will be entitled to take advantage of the non-performance of them. In the present case the power rested only upon articles ; there was no estate vested in trustees, out of which an appointment by virtue of the power was to enure. The issue of the second marriage cannot be aided as pur- chasers, for the power was given to enable Mrs. HoU ford to dispose of her lands by deed or will, and there- la) 2 Vc*. 191. (A) 1 All: 615. CASES IN CHANCERY. 246 fore the issue of the marriage were not exclusively the 1764. object of the power. The case of Bramhall v. Hall (a), w BIOH t was much stronger, as there the wife had the legal estate, t>. but the court refused to interfere, on the ground of the I*ord Cadogan. want of consideration. It is also clear that this appoint- ment cannot take effect as a declaration of trust. The declaration of trust must be contained in the same deed [ 247 3 which creates the trust ; which is the same rule as was formerly held with respect to uses. The case of Hearle t. Greenbank (6), shews how strict the court is in the construction of these sort of powers. 2dly. As to the question of the cross remainder, the intent of the will is express, that the daughters should take severally, and not jointly, viz. distinct moieties, as tenants in common. The words such issue, must be construed the issue of such tenants in common, re- spectively ; the words heirs of the body, in the will, being words of limitation, and not of purchase, upon the death of Constantia, the remainder in fee of her moiety vested in the plaintiff. They cited Comber v. Hill, Stra. 969 ; Williams v. Brown, ib. 996 ; and Davenport v. Oldis (c). 3dly. The additional annuity is given only out of the real estate ; the words of the will are, one rent-charge of. i?200 clear, with power of distress and entry. The codicil gives an additional sum of i?100, payable as men- tioned in the will. This is an increase of the testator's former bounty. The expression implies that the fund for the £ 100 annuity should be the same as that for the ■£200, both to issue out of the real estate. These are clearly words of reference, and bring it under the statute of frauds. (a) Ante, p. 220. (6) 3 Atk. 695. 1 Ves. 298. (c) 1 Atk. 578. . 247 CASES IN CHANCERY. 1764. The Attorney-General and Mr. Wedderburne for yj^^ Sir Henry Englefield, upon the third point, were stopped v . by the court. LordCADOGAN. The Lord Chancellor. These gifts are several and distinct. The implication contended for is unnecessary and groundless. There is [ 248 ] a wide distinction between expressions which form part of the substance, and those which only affix an accidental circumstance to it. The words payable as mentioned in my will, mean no more than to describe the time, mode, and place of payment, &c. They cannot apply to the fund. Mr. Willes and Mr. Sayer for the Holfords. Mrs. Holford being a feme-sole at the time of the execution of the marriage articles, and entitled to the trust of the reversion in fee of a moiety of her brother's estate, had it in her power to charge and alienate it as she pleased : in this situation she executes the marriage articles. It is admitted that if the estate had been con- veyed to her previous to her marriage, and vested in trustees to such uses as she should appoint, that any appointment by her would have been valid; Rich v. Beaumont, 17^7; ShardJpw v. Taylor, 3 Salk. 113; but it was not in her power to do this. The legal estate was outstanding, and no formal conveyance could affect it. Such a conveyance could only amount to a direction to trustees; and as Mrs. Holford's interest was only equitable, the general intention expressed in the articles is as binding as an equitable conveyance. In Churchill v. Dibben (a), Lord Hardwicke held, that a will by a feme-covert, who has a power to devise, must be con- sidered as made in execution of that power, in order to (a) Vide cit. post. CASES IN CHANCERY. 248 effectuate the intent. Hearle v. Greenbanke was decided 1 764. solely upon the infancy of the feme-covert. W~ vW As to the question respecting the cross remainders ; if v . there had been but one daughter, she would clearly have LordCADooA*. taken the whole estate in exclusion of the heir at law. The words " in default of such issue," can only be ap- plied as relative to the issue of all and every daughter. It is observable too that the word respective has been [ 240 ] omitted, which if the testatrix had intended to deprive a • surviving daughter of the share of her sister dying with- out issue, would have been inserted. Lord Hardwicke laid great stress upon that circumstance in Davenport v. Oldis (a). The Lord Chancellor. (After stating the prayers of the two bills.) Upon this 1 4th November original bill three questions have been made for the con- sideration of the court, and they have, from the inter- ruption of accidents and other circumstances, taken up three several days in the discussion of them. The first question which was made, was a question between the plaintiff, Mr. Wright, and Miss Holford 9 whether she, by virtue of the articles executed upon the marriage of her mother, and a will operating as an appoint- ment consequential to those articles, be entitled to take Mrs. Holford?*, her mother's, moiety of the reversion of Mr. CarringtorCz estate ? The next question is, If she does not take the whole moiety, and yet takes at all, whether she shall be entitled under that appointment to (a) Lord Kenyan, in Wat- stress on the word respective, eon v. Foxon, cit. post, ob- Creating a tenancy in corn- served, that it was unworthy mon, divided the title as Lord HardwicJee 9 * great learn- much, whether the word re* ing and ability te lay such specthe was used or not. 249 CASES IN CHANCERY. 1764. one quarter or half of a moiety, and not to the whole Whiott moiety ? fi> r that the residue would go by virtue of the v. limitation in the will of Mr. Wright, and would not at- Lord Cadooan. tach by way of cross remainder upon Miss HolforxTa moiety. The third question is, Whether Sir Henry Englefield is entitled to an additional annuity under the codicil ; or whether that annuity, by its being directed [ 250 ] to come out of the real estate, or intended or meant so to be ; and the codicil, not being executed according to the statute of frauds, should cease, and not take place, to be paid out of the personal estate, upon which it is a charge, because the intent was to fix it upon the real estate.' As to the second and third questions, they do not ad- mit of my saying more upon them, than that I am clear that Sir Henry Englefield is entitled to his annuity out of the personal estate; and that Miss Holford, if entitled at all, is entitled to her mother's whole moiety, and that the plaintifFs reversion is not to take place till default of issue in every one of the daughters of Mrs. Holford (a). (a) There was a case, after- wards directed for the opinion of the court of King's Bench, upon this point, Wright v. Holford, Cofvp. 31. The court certified, that " as no- thing was given to the heir at law whilst any of the daughters, or their issue, con- tinued, they must amongst themselves take cross re- mainders." This opinion was followed in Phiphard v. Mans- Jield, ib. 797* and Watson v. Foxon, 2 East, 36. The rule laid down in those and the following cases is, that where cross remainders are to be raised by implication between two and no more, the pre- sumption is in favour of cross remainders; where they are to be raised between more than two, the presumption is against them : that 'presump- tion, however, may be re- butted by circumstances of manifest intention to be col- lected from the whole will taken together. Perry v. White, Cowp. 777- AtherUm v. Pye, 4 T. R. 710. Roe v. CASES IN CHANCERY. 260 The only remaining question then is the first question I ' 1764. stated, Whether Miss Holford, by virtue of the articles ot^^ and will of her mother, shall take this one moiety ; or v. whether these articles and the consequential appointment ^° r ^ Cadooan. are void ? The point, therefore, for my present consideration de- pends upon the particular state of the situation of Mrs. [ 251 ] Wright at the time of her marriage to Mr. Holford, which was this. She was at that time entitled to a moiety of the reversion in fee of Mr. Carrington's estate. Her sister was entitled to the other, who has conveyed that, subject to certain conditions, to the plaintiff, Mr. Wright. Mrs. Holford was entitled in fee to one moiety ; not to the , legal estate : but she was entitled as cestuy que trust ; the whole estate being by the will limited to Lord Cado- gan and Sir Henry Englefield (and another who is since dead). Therefore the legal estate of the reversion in fee subsisted in them at the time she executed the articles in YJ55. The substance of the articles is this. (Here his Lordship stated the articles.) This deed being executed in the situation she stood of cestuy que trust of a reversion in fee, she makes an ap- pointment consequential to it. This is dated the 13th of May* 17^8. It was done by way of will, reciting the articles that were entered into, and reciting her right under the settlement and will of Mr. Carrington to this reversion in fee. It goes on, " "Now therefore my mind is," &c. (Here his Lordship stated the appointment) The question that is made arises out of these articles and this instrument, the situation of Mrs. Wrighfs in- terest at the time of executing those articles, and the intent which she had in executing them. Clayton, 6 East, 628. Doe v. Ion v. Roe, 1 Dow. P. C. Webb, 1 Taunt 234. Statin- 384. ton v. Peck, 2 Cox, 8. Clay- VOL. 11. s 261 CASES IN CHANCERY. 1764- ghe had several children, but only one daughter at Wright present surviving by Mr. Holford. This daughter will, v. I think, be entitled to the whole benefit, when I come to Lord Cadogan. con8 i*& Cadooan. Mr. Sayer as an authority to this point. That case was as follows: Mrs. Browne, a woman seised of a real estate, [ 253 ] had before marriage conveyed it to trustees to such uses as she by deed or will during her coverture should dispose of or limit the same. She afterwards devised the estate without taking any notice of the power. A variety of questions arose in the cause, which came before Lord Hardwicke, particularly with regard to the quality of the estate devised ; whether, from the words of the particular devise, the devisee took only the freehold estate, or whe- ther he took the freehold and leasehold too. Another question was, how far after-purchased lands which were purchased during the coverture could pass. There was no ground, however, laid for any objection to the fixed determination in equity, that a woman may reserve a power before marriage, and may dispose of her separate estate during her coverture ; and in case she makes such a disposition, if the forms have been complied with, it is at once effectual. If it is defective in respect of them, the court can and will interpose to effectuate it against the heir at law, upon the consideration of a meritorious qua- lity in the person who is to take under the appointment. Without it the court will not. This has been the esta- blished doctrine espoused and adopted by the court, after having been controverted for a great length of time. In Cannel v. Buckle, 1 P. Wms. 243. a feme co- vert gave a bond to her intended husband, that in case the marriage took effect she would convey the lands to him in fee. The wife died without issue. The bond, (a) Cit. Sugd. on Pow. 150 & 276, n. from Reg Lib. a. 1753, fol. 252. s 2 263 , CASES IN GHANCEEY. 17^4. though void in law, was good evidence of an agreement' vjr^^ in equity. The heirs of the husband shall there compel "J"* a specific performance of it. This was a bond given by Lord Cadogan. the wife, which was void by the marriage : the objection was taken that the bond was rescinded. So here the ob- jection is, that the agreement was only on the part of Mr. Holford; whereas it is expressly recited that it was agreed [ 254 ] between him and his wife. The articles are so. But in the case cited Lord Chancellor in answer to all the ob- jections said, that the impropriety of the security, that is, the taking a bond from a woman who meant to marry the obligee, or the inaccurate manner of wording such bond, are not material. It is sufficient that the bond is written evidence of an agreement that the woman in consideration of the marriage agrees that the man shall have the lands as her portion. This agreement being upon a valuable consideration shall be executed in a court of equity. In regard to the bond being extinguished, which it was at law, the court said it was unreasonable that the marriage upon which the bond was to take effect should be the destruction of it. It was objected that at law the wife cannot sue the husband, but in answer to that it was said, that in equity the husband could sue the wife, and the wife could sue the husband. The husband might sue the wife in the principal case. An objection was made that the covenant could not bear damages at law ; the court gave an answer to that, viz. that it was not an universal rule that a specific performance could not be had in this court where damages could not be had at law. In that case the principles were laid down much stronger • than is contended for by Mrs. HofforcTs daughter in the ' present case ; because that was the case of an actual bond given, not indicating that there should be any power re- served, but that it should remain upon an executory agreement to be completed at a future time. The court considered that bond as putting a trust upon her. The CASES IN CHANCERY. 264 act was done while she was sole and separate, and all her 1764. heirs were in herself. She had a right to bind them dia- wT^l T cretionary and arbitrarily as she might think proper. v. There was relief given in that case. LordCAnooAN. In this case there is a lady seised of a reversion subject to a multifarious complicated trust. This dry reversion was at that time vested in her as a trust ; she meaning [ 255 ] to make a provision for her own power over the reversion when it shall come to be fruitful, notwithstanding the coverture she is about to enter into. It is agreed that it was possible for her to dispose of this in the manner she has meant to dispose of it. But it is said that it ought to have been done by virtue of new modelling the inherit- ance (whether it was legal or equitable) which she had. The answer, however, to that is, that she had no legal estate, therefore she could grant none. She could not convey the legal estate de novo by way of making new trustees, because they would be seised of nothing ; there was nothing for them to be seised of. Lord Cadogan and Sir Henry Englefield would still have stood seised ; consequently if she had granted the reversion to Smith and Brampton and their heirs, to the use of them and their heirs, for the uses and purposes mentioned in these articles, it would not have operated any otherwise than by declaring the trust of the estate in Lord Cadogan and Sir Henry Englefield. The law lays it down as a maxim, and it is a wise one, never to require things to be done per plura which may be done per pandora : so it is with regard to the mode of conveying of persons seised of land. They may pass their estates under the most simple and plain titles that can be. v What has the lady done in this case? She has entered into these articles, and agreed that these estates shall go ,..'". . fr . *'" to certain uses. It is agreed that when they come into :i«. ■X 255 CASES IN CHANCERY. 1764. possession they may go to the uses which are mentioned Wright m t * iese art * c " e8 > w hich are to her separate use, and sub- v. ject to her appointment. Then she has declared that the LordCADOoAN. ^^ w hi c h resulted to her by virtue of the deeds and the will of Mr. Carrington, which was lodged in Lord Ca~ dogan and Sir Henry Englefield, shall be new modelled for her benefit on a new marriage. The court will not bind [ 256 ] the trustees to act in that trust They will only put it into other hands. But they are obliged from the minute this declaration was made to stand seised to the new equitable intents and purposes that Mrs. Holford has thought fit to impose upon them, by the new-modelling her estate far the benefit of herself and family. It was said that it was a rule at law, and likewise a rule in equity, that trusts and uses must all spring out of one jingle and original deed, and therefore that the estate which created the resulting trust for the benefit of Mrs. Wright and her sister could not be controlled without new-modelling the estate by some future or distinct in- strument, imposing new trusts and new uses upon that estate. But though that may be in some sense true, it is only true by way of subtilty, by technical reasoning, secundum quid, and not universally true. Though a use or I agree to this, that every use or trust must be created out of^hfo^Sn- at * e *™ e °^ * e or ig* na l feoffment to uses or trusts. But al feoffinent to then it is not necessary that they should be specifically need not be spe- cr ^ated, it is sufficient if they are so substantially and cifically created rationally in point of time; because they must all come at the tune of . . . die execution of out of the original feoffinent in one way or other. As, 1st, the deed. upon a use. A man seised in fee conveys by way of • feoffinent or otherwise to J. S. and his heirs without con- ***i sideration. The person who conveyed dies, having a son. * . • " • The use which in that case resulted was before the statute % «•. 1 * • w ^ afc a trus * l8 now : ** was on ty exe cutable in Chancery by a subpoena which resulted to the heir. The heir lives CASES IN CHANCERY. 266 fifty years, then leaves it to descend in the same way as it 1764. originally came to him. The feoffee when he pleases has w""^ nothing to do but personally to declare, " You, J. S. that v . stood seised to my use, must now stand seised to the use I^rd-CADOoiN. of J. N. and his heirs." J. N. becomes entitled to an equitable estate, yet the man who originally had no in- terest in the use by operation of law shall take the trust under the original feoffment. So far Mr. Yorke\ argu- [ 267 ] ment was right. But with regard to the specification of uses, the al- teration and new modelling of uses, they may be all, and they frequently are all created subsequent to the original estate which is to support them, and at common law they were created, governed, and directed by the intent of the ' owner of them ; there was nothing else wanting ; there- fore parol declarations, parol creations, and parol altera- tions of uses were to all intents and purposes as effectual as any other mode whatsoever of charging estates (a). Whatever alteration may have taken place in the law The statute of with respect to the conveyance of uses from that time to imposed^ fm the present, there has been none in the control of them, in declaring the The governor of the use is now, as it was then, the ap- f ^, e U8e ^° solute will and declared intent of the owner. So far it is ma i n8 M it was . . , _ , .. . before the sta- the same as it was anciently. For public convenience, in- t ute, the abso- deed, the wisdom of the legislature has imposed a mode lute will and de- . . . clared intent of and form of solemnity to be used in declaring such in- the owner. tention; but the intention is still left as the guide to direct and control the use. The sole reason of instituting that solemnity was because experience had shewn that the wickedness of mankind was so great, and had intro- duced such fraud and perjury, that men set up fictitious (a) Vide Shepherd's Touchstone, 619. Sanders on Uses, 172, etscq. *4 267 CASES IN CHANCERY. 1764. instruments, not executed with due solemnity, to the Wright destruction of estates, and the prejudice of families (o). v. Now that being the case with respect to uses, the LordCADooAN. operation must be similar with respect to trusts. There [ 258 J ig n o rule so certain, so general, and so strongly adhered to by the ablest judges that have sat here as this, to ob- serve in omnibus the rules of law with respect to the re- gulation of property. They have been always strictly ob- served as principles in a court of equity. Here then is antecedent to the marriage a declaration of the trust by the lady of this estate, which I apply in my reasoning and judgment as a declaration of trust made to Lord Cadogan and Sir Henry Englefield, though they are not named. In her articles she new-models the trust. She became seised of these new trusts instead of the old resulting trusts she had before. When this transaction is considered in that light, it seems to bring it to the common case of a woman doing this merely with a view of putting herself, as to her es- tate, in a separate condition after coverture, and to be just the same as if she had had a legal estate. In that case she might have new-modelled the estate, and put it upon new trusts to be created. It is a wise principle, and fixed now, contrary to the illiberality that prevailed in ancient times, when with subtilty, narrow reasoning, and technical prejudice, they required the nicest exactness and scrupulous forms in carrying people's intentions into execution. Therefore there was nothing more certain even before Charles the (a) As to the operation of tion of the uses, of fines, and this section of the statute of recoveries, vide Sanders on frauds (the 7th) and the 4 Uses, 187, et seq. Sugd. Gilb. Ann, c. 16. as to the declare- on Uses, 111. CASES IN CHANCERY. 258 Second's time, than if a person had several ways of con- 1764. veying an estate (as this lady has done, " by virtue of all w*"^ other powers me thereto enabling"), if the person did it v , by warranty intending to pass it by transmutation of pos- LohICadogan. session, yet the judges having more consideration to the substance, viz. the passing the estate, than the form, viz. the manner of passing, would permit it to pass as a cove- nant to stand seised. A number of cases have now said where the intention was to pass it at all, the judges are astuti to find it sufficient, and if there is no transmutation, it is a covenant to stand seised. " We will look to the [ 259 ] substance, not the shadow' 1 (a). It is upon these principles that in this case, and others similar, the court has gone in the control of these kind of powers ove? estates during coverture, and these stipula- tions which, a woman makes while she is free in order to guard against her husband. It is upon these principles that the court has interposed in cases where the convey- ance was intended to be a legal conveyance in those cases ' I mentioned, and in several others. The last was one that came before me (6). There on the discussion of the point by counsel it all centered in this. It could not be questioned, but let this be intended to be a legal convey- ance of a legal estate and defective, the court would never interpose against the heir for a mere volunteer, and that the court had constantly interfered in the case of a me- ritorious consideration. It was upon that principle that I determined : there was no consideration. But in this case, supposing it a case upon a defective execution of a power, there is a good consideration. The provision made by Mrs. Holford for her children is a meritorious and (a) See the observations of (b) BramhaUv. Hall, ante, Wilson, J., in Habergham v. p. 230. rincent,2 P«.jun.226. 259 CASES IN CHANCERY. 1764. valuable consideration. It is debitum natures which she Wright recognizes and is paying. There is not a case where it v. has not been held to be a valuable consideration. Lord Cadooan. i„ t h a t case which I mentioned of Churchill v. Dibben Lord Hardwicke took up the consideration of what had been thrown out with regard to the mode by which a woman might dispose of a real estate after she was mar- ried. Lord Hardwicke does not lay it down that it must be done by an original act wherein new trustees must be appointed in all cases where a new declaration of uses is to be made : what he says in relation to the husband is certainly true upon a supposition of its being given to the [ 260 ] wife, though not stipulated for before ; in that case it might bind the husband, but could not bind the heir, who was no party to it. I therefore am to consider this case in all these situa- tions. I cannot but think it a common case. A lady makes a declaration of trust at the tune N she had a power to vary and new-model it, and there are proper trustees to carry it into execution. With regard to the moiety to be conveyed to the daughter, it will be an estate tail ge- neral ; and when she is enabled to suffer a recovery she will have a fee. This is my opinion upon the several points which were agitated and left to my determination. The decree accordingly, after ordering the usual ac- counts, directed an allowance to be made to Sir Henry in respect of the account of i?100, and a sufficient part of the personal estate to be set apart to answer the growing payments of it. It was also declared that the articles and subsequent appointment were a good and valid appoint- ment of one moiety of the estate, &c. This decree was afterwards House of Lords, (I Bro. P. affirmed upon appeal to the C. Ed. Toml. 486.) where the CASES IN CHANCERY. 860 point, as observed by Lord out in Peacock v. Monk, 1764. Kenyan in Doe v. Staple, 2 though his doubts were not T. R. 695, was very ably dis- sufficient to induce the House v cussed on the doubt which to determine against the agree- LordCADOGAN. Lord Hardrricke had thrown ment. [ 261 ] DESTOUCHES v. WALKER. 23d November, 1764. (Reg. Lib. a. 1764. fol 21.) S. C. ^ ' J ' Serj. Hill, MSS. Anne Johnston by her will, bearing date the 12th of Bequest of May, 1734, gave all the money she had, whether in the up0 n condition public funds of England or France, to Charles Hedges, that he 8hou ? d * ... P*y Bn annmty alias Lacey ; but in case he should die without issue, then to B. and in all the said effects to be equally divided amongst such of SSwh^ottSwe, her nearest relations which should at that time be living, then to be whether in England or France, upon condition that the jjJ^wL g^h said Charles Hedges, alias Lacey, or her said relations of testatrix's />«• 111 1 4 v-k »f nearest relations after him, should pay to her servant, Ann Powell, an an- w hi c h should nuity of J>20 for life. J* *** **« be .... living : held, the Charles Hedges survived the testatrix, and died No- bequest over was vember, IJ56, without having ever had any children, and t0 ° remotc * made the defendants his exeteutors. The plaintiffs were the nearest relations of the testatrix living at Charles Hedges'* death, and filed this bill to have the stocks transferred to them. Mr. Sewell and Mr. Harvey for the plaintiffs. > The case of Pinbury v. Elfdns, 1 P. W. 563, must govern the present. The words there were, " provided if she shall die without issue by the said testator, then after her decease i?80 shall remain to the testator's brother." , That was held good, as meaning a dying without issue living at the party's death. The words in the present 261 CASES IN CHANCERY. 1764. Destouches Walker. [ *262] case are as strongly indicative of such intention. " At that time'", and the immediate connexion between Charles Hedges^and the relations in the charge of the annuity by # the words " after him", without mentioning the issue, shew that the testatrix intended to give the stocks over, not upon a general failure of issue, but upon Charles Hedges'* dying without leaving issue living at the time of his death. Mr. Yorke and Mr. Perryn for the defendants. The Lord Chancellor. I think this devise over is void, as being too remote. One known rule of construction is, so to construe the devise over as not to hurt or lessen the interest of the first taker ; and not to lessen either the interest or power of the first in order to establish the devise to the second taker. Now by construing these words as relating to issue living at the death of Charles Hedges^ all power of providing for any issue he might have in his lifetime, by applying any part of the bequest to putting his children out apprentice, or to set them up in the world, would be taken away from him. This is a benefit which the testa- trix could never intend to deprive him of. She intended to do more than the law would allow her to do, that is, to give the stocks to Charles Hedges and his issue ge- nerally, and after a general failure of issue to give it over. Bill dismissed. See the case of Bodens v. Lord Galtvay, post. 297> and the cases in the note to it. CASES IN CHANCERY. 968 94th July, 8th & 86th Nov. JACKSON v. HURLOCK. 2 c.' Amb. 487. {Reg Lib. a. 1764. fol. 63.) Serjt. Hill, MSS. &u*tf, MSS. Sir John Hartopp having two daughters, the de- Testator devises ° . real and personal fendants, Sarah Hurlock and Elizabeth Dallow, by his estate to certain will, bearing date the 9th of July, 1759, gave his manors Sby deed and estate of Barton Lazors, in the county of Iseicester, conveys it to the . T -i c j f i. • a a. d ci m\ same uses until to John Spranger and his heirs, in trust tor Sarah marriage a nd Marsh (who was his housekeeper), for life; with re- then to new uses; mainder to the defendant, Sarah Hurlock, for life, for intended wife her separate use ; with remainder to her first and other a " d tne i88ue °* ... . the marriage : daughters in tail ; with remainder to her first and other after the deed, «ons in tail ; with remainder to his other daughter, Eliza- ™ d b t fore *?.*?: ' . . . ^ riage> bv codicil beth D allow, and her children, in like manner ; with re- attested by three mainder to his own right heirs. He also devised his direaedto bean- manors of Brettingby and Wyverly, and his estate in nexed to his will, Trethby (subject to an annuity), to his said daughters feiturein case of and their children in the same manner ; with remainder *)! 8 wife ^"8 ... . disturbed ; and to his own right heirs. He also devised to Sarah Marsh after the codicil and her heirs for ever, all his manors of Buckminster and "J 8 "*® 8 : neld » 7 m that the settle- Sewster, subject to, and charged with payment of any ment revokes the sum not exceeding i?10,000, to such persons, and at such ^^^J^" times, and in such proportions as he by a letter, or other the codicil; that note, memorandum or writing, under his hand, to be sprin^ng^iTthe delivered to, or left with her, should appoint ; not doubt- marriage do not revoke the codi— ing or distrusting her honour or integrity in the perform- d\ 9 nor t he mar- ance of his will, and intention therein. And he directed ria 8 e > M being . ii-i contemplated by that all such money as should be owing by him to her, the will. Where lands were devised, subject to, and charged with a sum not exceeding 10,000/. which testator afterwards directed to be paid to charities ; held, that the charge sunk for the benefit of the devisee* 264 CASES IN CHANCERY. 1764. Jackson HURLOCK. or any other at his death, and also his legacies therein bequeathed, and writ with his own hand (to the amount of about £1230% should be charged on the said premises, the inheritance whereof was devised to the said Sarah M arsh, and made the said Sarah Marsh residuary legatee and sole executrix. He afterwards having an intention of marrying Sarah Marshy made a settlement of 10th of October, 1760, and conveyed the above estates, until the marriage, to such uses as the same were before settled and conveyed, and afterwards to the use of himself and wife, and issue of the marriage ; with remainder to such uses as he should by deed or will appoint; remainder to his own right heirs. On the 30th of October, 1760, he made a codicil to his will, attested by three witnesses, and which was in- tituled " A codicil, which I direct and desire to be an- nexed, and taken, and considered as part of my last will""; and then disposed of certain monies in the public funds, which he recited to have discovered since the making his will, and then directed that if either of his daughters, or their husbands, or any other to whom any devise or le- gacy by his will should come, should disturb, or attempt to disturb his wife, they should forfeit their interest under the will, and the same should go to Sarah Marsh. Upon the 1st November, 1760, he wrote a letter or memorandum directed to Sarah Marsh, whereby, after reciting the devise to her of the manors of Buckminster and Sewster in the words of the will, in pursuance of his said power, and in confidence of the trust he reposed in her by his said will, he declared it is his will and mind, and desired her, either by sale or mortgage, or otherwise, as to her should seem meet and convenient, to raise so much money as would be sufficient to discharge not only his just debts and legacies bequeathed in his will, and CASES IN CHANCERY. 266 charged upon his said estate, but also the several sums following, to the several persons, and for the several uses in the manner thereinafter mentioned. -Then he gave several sums to charitable and superstitious uses to the amount of about £6000. Upon the 4th November, 1760, he married Sarah Marsh ; and on the 15th January, 1762, died, leaving Sarah, his widow, and Sarah Hurlock and Elizabeth Daliow his only children and heirs at law. Upon the 18th April, 1763, dame Sarah made her will, and reciting that she had contracted with Lord William Manners for the sale of Buckminster and Sew- sier, devised those estates to the plaintiffs, her sisters, in trust, to complete the said contract, or to sell the premises to some other person ; and directed that the purchase money should be first applied in discharge of the money to which the premises were subject by Sir John's will, and that the residue should be considered as part of her per- sonal estate, and made the plaintiffs residuary legatees and executrixes. This was a bill to have Sir John's will and codicil, and the will of dame Sarah established, and for directions for carrying the trusts into execution : that the estates of Buckminster and Sewster might be sold for payment of Sir John's debts, and such of the legacies as were not void ; and to have the residue of the purchase money discharged from the charity and superstitious legacies. Mr. Yorke and Mr. Hoskins for the plaintiffs. Four questions arise upon the present case. The first is, Whether the will was revoked by the subsequent set- tlement ? If it were precisely the same as Lord Lincoln's case (a), it would be improper to argue it ; but in that the revocation was considered as caused by the alteration 1764. Jackson Hurlock. (a) 1 Eq. Ab. 410. i 965 1764 Jackson v. Hurlock. # 266 ] [ CASES IN CHANCERY. of the legal estate ; in the present case the legal estate has been out by the will, and only waited for his appoint- ment : * the 8|f tlement has had no effect upon the legal estate. The second question is, Whether, supposing the will to be revoked, the codicil has not set it up again ? The favour always shewn to the intention of testators entitles this codicil to be considered as a republication ; it is expressly directed to be taken as part of, and annexed to the testator's will. It relates to his real estates, and is attested by three witnesses ; it prohibits his daughters from defeating any of the devises in the will, and gives' force to the will so as to pass all the interest in his estates. The insertion of new uses in the settlement makes no objection ; for it takes effect and operation from the time of its execution, and not frotn the time of their introduc- tion. There was no time at which the testator was not possessed of a contingent fee. The third question is, Whether the marriage is a re- vocation of the will and codicil ? Marriage alone is never considered a revocation of a will of personal property, and is of no effect unless accompanied with the birth of a child : this is borrowed from the civil law. Just. lib. 2. tit. 13. Po8thumi quoque liberi vel hceredes institui de- bent vel ewhceredari : et in eo par omnium conditio est; quod et jit&o posthumo et quolibet ew cceteris liberie sive foeminini seams sive masculini prceterito valet quidem testamentum ; sed posted agnatione posthumi sive post humce, rumpitur, et ed ratione totum infirmatur. In Domat it is said that a testament is annulled by the birth of a child, though the testator might declare against it : he declared against it. There have been several cases in the Spiritual Court where wills have been considered as revoked ; but in every one of them there have been the joint circumstances of marriage and birth of a child. Burrow v. Bagnel, 1695. Meredith v. Meredith, 1713. CASES IN CHANCERY. 266 Outram v. Outran*, 1738. Barker v. Pusey, 23d May, 1749. «/ieAy/ v. Bradyl, 1755. FTc/& v. Wilson, at the Cockpit, November, 1756. J5Jyre v. ityre, cited 1 P. Wms. 304. The case which approaches nearest to the present is one of Altham v. Grey at the Cockpit ; for there, as in the present, a provision was made for the children by settlement ; and it was held that the will was not revoked even by marriage and having children, for that the presumption of revocation was repelled by the provision. Overbury v. Overbury, 2 Show. 214. All these cases apply merely to personal estate : it has never yet been decided, since the Statute of Frauds, that mar- riage, even with a child, has been a revocation ; and in Brownv. Thompson, 2Eq. Ab. 413, Lord Keeper Wright held, that it was no revocation. The fourth question is, Whether the void legacies shall go to the heirs at law as a resulting trust, or sink into the estate for the benefit of the devisee ? This is not a devise on trust. The estate was devised, charged with the payment of the legacies ; and as they cannot take place, the devisee is entitled to have the estate discharged of them. The Solicitor-General and Mr. Ambler for the defend- ants. This will is so clearly revoked by the settlement, that we shall confine ourselves to three points. The first is, Whether this codicil is a republication of the will ? and it is clear that it is not. The testator having acquired a determinable fee, the codicil meant only to set up the will, quoad that interest ; the contingent fee, to take place after the marriage and the limitations spent, was not intended to pass by it, and could not pass. Upon the marriage he was in of a new estate, and was no longer seised of the one which he had devised. The settlement took effect upon the introduction of the new uses, which was not till vol. 11. T 1764. Jackbon v. HlTBLOCK. £267] 267 1764. Jackson v. Hurlock. [ 368 ] CASES IN CHANCERY. the marriage, and this being after the codicil, operated aft a revocation of it. Penphrase v. Lord Lansdowne, VtrU Ab. Dev. Z. 22. The next question is, as to the effect of the marriage in revoking the will and codicil ? The passages cited out reciting that he had charged the before mentioned estates with the payment of .£10,000 for his younger children, George, Edward, Anna Susanna, Elizabeth, and Grace, and taking notice that his family was increased since the making of his will, he charged his said estates with a fur- ther sum, viz. with the greatest advanced price that could be made thereof, for the portions of the plaintiffs, WUliam Brackenbury, Richard Brackenbury, Langley Bracken- bury, and Charlotte Brackenbury, to be paid at such time, and in such manner, and subject to such conditions and limitations as by his will he had directed for payment of the portions of his then younger children. This was a bill by the four youngest children to esta- blish the will and codicil, and to have the estate sold for the equal benefit of all the younger children. It was proved that the estate was of the yearly value of £ 354, and worth to be sold about £ 8770 ; and that the per- sonal estate, after debts and legacies, did not exceed «eiooo. Mr. Yorke and Mr. Hoskins for the plaintiffs. The will and codicil are to be taken together, and a construction made upon both as one instrument. The testator's intention was to provide for the plaintiffs, who were born after the will, as well as for the other younger children, who were born before. He was mistaken in the value of this estate : he must have apprehended that it was worth more than ^10,000. Suppose he had been asked whether he meant that the one set of younger / CASES IN CHANCERY. children should be paid their portions before the other, he would have answered, no, that all should partake of the fund equally. If the younger children, who were born before the will, are to be paid first, the other younger children will not have a shilling. Courts of equity will not only construe words of a will according to the natural intention of the testator, but will transpose words, and give effect to the intention even con- trary to the words. In Uvedale v. Halfpenny, 2 P. W. 151, they transposed the term providing for younger children, which stood after the limitations to the issue male, and placed it before them. In Milner v. Milner {a) the court gave effect to the intention contrary to the words. The testator in that case having made a mistake in the computation of a legacy, Lord Hardwicke thought that in the construction of wills the intent ought to be regarded, and that in order to effectuate it such a mistake ought to be relieved against. Mr. SeweU for the five younger children, and Mr. Harvey for the heir at law. However we may wish a better provision for the after- born children, the intention must be collected from the words made use of. They strongly import that the younger children born after the will are to be provided for out of the estate after the i?10,000 is raised. A further sum is charged upon the estate for them, to be paid in such manner as the £ 10,000 is to be paid to the other younger children under the will They are in the nature of residuary legatees, and take what is left after payment of the other .legacies. There can be no doubt but that it is a mistake, and that testator would have provided other- wise if he had foreseen the event ; but the court must 976 1764- Bbagkbn- BUBY V. Bracken- BUBY. [277] (a) ] Fes. 106. 277 CASES IN CHANCERY. 1764. Bracken- bury v. Bracken- BURT. [278 J judge from what he has done, not what he would have done. The Lord Chancellor. This is a question of intention arising out of the will and codicil. In cases of this kind it is absolutely neces- sary to take into consideration the subject-matter and the relative situation of the parties. Though the will and codicil are very inaccurate, yet taking these circumstances into consideration, I have not the least doubt but that he intended at the time of making his will not to give legacies to his younger children with partiality, but to discharge his parental duty by giving all of them portions ; and therefore, though he enumerates his sons and daughters by name, yet he describes theta as all his younger children, and it is the same as if he had said, " I mean to give portions to all my younger children share and share alike." If he had died without making a codicil, it would not have exceeded the latitude of juris- diction which this court has taken to construe wills ac- cording to the spirit of them, and none but one superior court can convince me of my error in such a construction. Courts of equity construe wills liberally, and do not shackle themselves with little narrow constructions. * I consider the codicil as made with two intents and purposes. First, to shew that he did not mean to exclude the after-born children, but intended to provide for them also as he had done before for the others. It enumerates the second set of younger children in the same manner as he had done the first set in the will, and incorporates them in the will. His second object was to augment the quantum of the fund as his family increased. After taking notice of the portions given by his will to his then younger children (not considered as particular objects CASES IN CHANCERY. 278 otherwise than as they were younger children), and that his family was increased, he charges the estates with a fur- ther sum ; — for whom ? — for his family, for all his younger children. It has been argued that he intended a distinct sum for the four children. But I think he intended to give them equal portions, and not legacies, which are arbitrary. Suppose the estate had been worth <£30,000 instead of i?10,000 ; could he have intended that in one event they should have nothing, and in the other twice as much as the former younger children? The plain way to construe it is to say, that he had before given i?10,000 to his then younger children ; he now gives a larger sum, because his younger children are increased in number. It is observ- able, too, that he alludes to the conditions, &c. mentioned in the will, viz. the limitations over in case the estate should come to one of the younger sons. Upon the whole I am of opinion, and must declare, that upon the true intent and meaning of the said testa- tor's will and codicil, his intention was to make all his younger children's portions equal, share and share alike ; that the term devised to the trustees, together with the inheritance, be sold. But in case the produce of the real estate does not amount to the sum of £ 10,000, the same must be made good out of the personal estate of the testa- tor as far as the same will extend. 1764. Bracken- bury v. Bracken- bury. [279] See a similar mistake in calculation rectified in a will on the authority of Milner v. Milner, in Phipps v. Lord also Danvers v. Manning, 2 Bro. C. C. 18 ; Stebbing v. Walkey, ib. 85; Williams v. Williams, ib. 86 ; Garvey v. Mulgrave, 3 Ves. 613. Vide Hibbert, 19 Ves. 125. 380 CASES IN CHANCERY. 14th A ssd Nov. ALDEN v. GREGORY. 6th, 7th, & 10th Dec 1764. (Reg. Lib. a. 1764. fid. 313.) Fraudulent con- Charles Aldbn being seised in fee of a plantation at awST^ against a ^ ama ^° a > called Barbican, by hi» will bearing date the purchaser with 8th of August, 1699, devised the same to his executors, notice, notwith- ,. , _. ., , • • /» i_ i i standing a great to ™* **<* divide the money arising from such sale be- le \fh h** 111 * * ween kw **& an ^ children. The wife died soon after, elapsed since the ***& by her will devised her share of the said money to or^nal trans- ^ i j uee gurviiiiig children, Thomas, Judith, and Ann. Edward Brown was the sole acting executor under the wills, and guardian of the children, and Charles Chaplin was manager and receiver of the estate in Jamaica. As soon as the children came of age Brown proposed to them to become the purchaser of the estate, and to take the hazard on himself of discharging all the incum- brances; and accordingly articles of agreement were entered into, that on the 10th of June then next, at the eosts and charges of the said Edward Brown, his heirs, executors, administrators, and assigns, they the said Thomas, Judith and Ann Alden would convey to him, or to whom he should direct, the fee simple of the said plantation, and all the estate which they had by virtue of the will of the said Charles Alden, or Judith Alden ; and would likewise assign the debts and effects belonging to the estate of the said Charles Alden either in Jamaica or remitted to England. And the said Ed- ward Brown covenanted to pay the said Thomas, Judith, and Ann Alden the sum of i?900 each on executing such CASES IN CHANCERY. 981 conveyances, and the further sum of £600 each, with in* terest at five per cent.) within six months after the said sale, if the proceeds of the said sale should amount to so much. By indentures of lease and release bearing date the 9th and 10th of June, 1721, the said Thomas, Judith, and Ann Alden conveyed the said plantation to the said Ed- ward Brown and his heirs* Soon after the above transaction Brown acquainted the children that he had agreed with Chaplin to sell the said estate, and accordingly by indentures of lease and release, bearing date the 15th and 16th of September, 1723> between the said Edward Brown of the first part, Thomas, Judith, and Ann Alden of the second part, and Edward Brown of the third part, in consideration of £ 2750 mentioned to be paid to the said Edward Brown, by consent of the said Thomas, Judith, and Ann Alden, and in consideration that the said Charles Chaplin did release the said Edward Brown, and the said Thomas, Judith, and Ann Alden from all demands on account of the said plantation of the said Charles Alden ; the said Edward Brown, with the consent of the said Thomas, Judith, and Ann Alden, did release to the said Charles Chaplin, his heirs and assigns for ever, all the said plantation and lands in Jamaica ; and the said Thomas, Judith and Ann Alden did confirm the same ; and the said Edward Brown covenanted to indemnify the said Charles Chaplin against all debts and legacies of the said Charles Alden ; and the said Charles Chaplin did release the said Edward Brown, and the said Thomas, Judith, and Ann Alden from all demands whatsoever on account of the said estates. In the year 1724 TViomas Alden, and the husbands of his two sisters, filed their bill to set aside the said deeds, and the cause coming on to be heard at the Rolls on the 1704 Aldbn Gbbgoby. 282 CASES IN CHANCERY. 1764. Alden V. Gregory. 2d of March, 1726, it was decreed that the said deeds should be set aside; that the said Edward Brown should account for the rents and profits received by hijn, and the purchase-money received by him from Charles Chap- lin, without prejudice to the plaintiffs proceeding against Charles Chaplin (who was out of the jurisdiction of the court), to set aside the purchase. On the 10th of January, 1728, the same plaintiffs filed a bill against Charles Chaplin in the Court of Chancery, in Jamaica, to which a plea was put in, and being allowed on argument, the bill was dismissed, but this dismissal was afterwards reversed in council ; but before any fur- ther proceedings Thomas Alden died, 1st January, VJ4H, leaving one son, John, under age. John Alden came of age on the 17th of May, 174*7? and having obtained from his aunts Judith and Ann (who had now become widows), a conveyance of their interest, he went over to Jamaica to prosecute the suit, but died there before he could take any further proceedings, in April, 1748. In 1750 his mother, who was his sole devisee and executrix, filed a bill of revivor and supplement in Jamaica ; but Charles Chaplin dying, and his grand-daughter, Mrs. Gregory, the wife of the defendant Gregory, became his sole re- presentative, the present bill was filed by the repre- sentatives of Mrs. Alden, the mother of John Aden, who was also dead, against the Gregorys, to set aside the said indentures of lease and release of the 15th and 16th of September, 1723, and for an account of the rents and profits from the time of filing the bill. Several witnesses were examined on the part of the plaintiffs to prove the state of depression and subjection to Brown in which the Aldens were at the time of the execution of the deeds ; that the plantation was worth nearly ,£900 per annum, and that the negroes on the estate alone were of the value of £3&J5. CASES IN CHANCERY. m Mr. Willes and Mr. Wedderburne for the plaintiffs. Mr. Yorke, Mr. Wheeler, and Mr. Bicknell for the defendants, contended that even supposing the court should be inclined to think that the transaction is not en- tirely free from suspicion, yet that the length of time was «o great that it ought not now to interpose ; that it was a bill of thirty-one y ears' standing against Mrs. Gregory ; that however improper Chaplin's conduct might have been, it cannot affect the defendants. The Lord Chancellor. This bill is brought to set aside a conveyance made by Brown, who was devisee in trust and guardian of the chil- dren of Jlden, who was owner of this Barbican plantation in Jamaica, and who devised it to his executors to be sold. And it also prays an account of the rents and pro- fits from the time of the defendants coming into possession, waiving all retrospective accounts. The title is derived by the deed of the 16th of September, VJ2S, to Brown and the children of Jlden, and from thence regularly to the plaintiffs, supposing that deed to be void as having been unduly obtained by fraud and imposition. Upon the state of the case, and the plaintiffs proofs, three questions were stated by Mr. Wedderburne upon which the merits depended, and which were adopted and argued as such by the defendant's counsel. The first was, whether there was any imposition or fraud in the original conveyance ? And I am of opinion that there was the grossest imposition and deceit that ever came before this court. The estate is proved to have been let by Mr. Beckford, the guardian to the defendant Mrs. Gregory, then Miss Chaplin, for three years at j£600 sterling, for that part alone which was the planta- tion ; besides the pen, or farm, which was let for above £200 currency. And the defendants in possession have VOL. II. u 1764. Aldbn v. Gregory. S84 CASES IN CHANCERY. 1764. Alden V. CrRKGOBX- not controverted this statement of the value by * tittle of evidence. The negroes were charged in 1723 to the poll tax at 159, which at the rate of £25 each amounts to the sum of d£3975, besides all other stock and utensils. The cestuy que trusts were still in the consideration of thia court, under Mr. Brown, their guardian, and Mr. Chap- lin, their agent, with whom neither of them had settled any account, nor had either of them given the warda (still continuing such) any information respecting the estate. For the mother and two daughters were, as he swears by his answer, at different times his servants ; and the son educated by him at school, and afterwards put apprentice to a milliner ; and that he never settled any accounts with them, and could not, Chaplin never having settled any accounts with him. This was the case of Brown, the vendor to Chaplin, not under a title derived by purchase from his cestuy que trusts, but under die original wjll of Alden. His deeds were set aside, and proper accounts directed. What was the case of Chaplin f Habes con/Uentem reum. His conveyance speaks now he is no more. Chap- lin, the agent in trust for the children, offers £2/J50 for the estate, and all arrears of rent, sum and sums of money, goods and chattels, debts, duties, and demands, and other things whatsoever, which Brown as devisee, or executor in trust, might claim; which. was accepted by Brown and the children as the best price that could be obtained for the said estate. If £&J50 be the best price, why add any thing further? But this consideration, it was feared, would not give a colour. Before the consi- deration, therefore, is closed, a release is thrown in of Chaplin' s demand on account of the management of the estate, upon which account he was indebted* to them at least in the sum of .£1100. Chaplin, not content with this, gets a general release from Brown, consisting of GASES i£ CHANCERY. 285 downright falsehood, and winds up the whole with a re- lease of the demands which he had on them for remitting the produce of their own rents and profits. Happy for these abused, gulled, deluded people that there is a court of equity in Great Britain, out of the hurricanes and more tempestuous morals of Jamaica ! The next question is in effect, whether delay will purge a fraud ? Never while I sit here. Every delay arising from it adds to the injustice, and multiplies the oppres- sion (a). The third question is, whether' the defendant can cover himself as a purchaser for valuable consideration ? I think there is no pretence for it. He married a wife, tiking under the fraud, with actual notice in her of a suit pending. (a) The point of length of time being no bar in cases of fraud was much discussed in the late case of Wkalley v. WhaUey, 1 Meriv. 436; see the following cases upon the subject there cited {note), De~ loraine v. Browne, 3 Bro. C. C. 633. Smith v. Clay, cit. to. n. Herey v. Dinrvoody, 4 Bro. C. C. 268. 2 Ves. jun. 87. Yate v. Moseley, 5 Ves. 480. Moth v. Atmood, ib. 845. Purcell v. Macnamara, 14 Ves. 91. Bedford v. Wade, 17 Ves.&J. Hovendenv. Lord Annesley, 2 Sch. & Lef. 607* Moore v. Blake, 1 Ba. & Be. 62. Medlicot v. O'Donnel, ib. 156. Gould v. Okeden, 4 Bro. P. C. Ed. Toml. 198. 1764. Alden v. Gregory. . u2 286 CASES IN CHANCERY. &i%3>/Zh 7th & 10th Dec. NORTON v. RELLY. 1764. i Coltf Jurid. (**• Lib. b. 1764. foL 66.) 458. Grant of an an- This was a bill filed by the plaintiff, a maiden lady, lentfv obtained res *di n g at Leeds, against the defendant Relly, a metho- by a person hav- dist preacher, and others, trustees named in a deed of gift ascendancy over executed by her to the defendant, praying that it might a woman, who be delivered up to be cancelled, &c. The bill stated, was under a state of religious de- that the defendant procured one Woolfe to transmit to lusion, set aside ner a ] e ^ er j n which he expressed himself as follows : upon principles 7 r of public policy. " That although unknown to her in the flesh, from the report he had of her, he made bold to address her as a fellow-member of that consecrated body wherein the ful- ness of the Godhead dwelt ; that he had some thoughts of visiting her, the people to whom he preached (though they had none among them whom they would choose to hear in his absence) being willing that he should come among them at Leeds for a little time to preach the king- dom of God." He subscribed himself the plaintiff's " most affectionate brother in the flesh." The plaintiff was prevailed upon by Woolfe to invite the defendant to her house, where she entertained him for a considerable time, and gave him money to defray the expenses of his journeys : he afterwards paid her a second visit, when he prevailed upon her to accompany him to town, and be- come one of his congregation. In the course of two years he obtained from her about £\50 by various pretences ; and at last persuaded her to execute the deed in question, granting to him an absolute annuity of £ 50, secured upon her real estates in Yorkshire. The bill contained CASES IN CHANCERY. 287 several similar letters of the defendant, and stated several acts of fraud and imposition. The Solicitor-General, Mr. Yorke, and Mr. Hoskins, for the plaintiff. Mr. Willes, Mr. Ambler, Mr Wedderburne and Mr. Serjt. Glytin for the different defendants. This is a new case, and as such ought to be treated with great caution. The court ought to examine it with the same spirit of liberality and toleration with which it always acts towards those whose religious opinions differ from those of the Church of England, The defendant is not what he has been represented by the bill, a methodist preacher, a term to which ignorance and illiberality have affixed a ludicrous and contemptuous idea. He is, in fact, a Protestant dissenting minister ; an independent preacher, living by the exercise of his talents and exer- tions. This lady, who had taken a great liking to him, had engrossed the whole of his time and attention, and as a means to secure it for the future, granted him this annuity ; she cannot now be at liberty to revoke a gift for which she had received a consideration she then con- sidered as so valuable. 1764. Norton v. Relly. The Lord Chancellor. This cause, as it has been very justly observed, is the first of the kind that ever came before this court, and, I may add, before any court of judicature in this kingdom; matters of religion are happily very rarely matters of dis- pute in courts of law or equity. In regard to Protestant dissenters, under which de- nomination it has been attempted to shelter and include the defendant Relly, no man whatever bears a greater regard and esteem for those who really are so than I do ; and God forbid that in the present age the true dissenters of every kind should not be tolerated, or that the spirit 388 CASES IN CHANCERY. 1764. Norton v. Belly. of Christianity should, in this kingdom, lose the spirit c£ moderation ! I can and do esteem the professors of one equally with those of pur own established church, to which, not only from the profession of my faith, but from my principles, I bear a higher yeneration. But very wide is the difference between dissenters, and fanatics whose canting and whose doctrines have no other tendency than to plunge their deluded votaries into the very abyss of bigotry, despair, and enthusiasm. And though even against those unhappy and false pastors I would not wish the spirit of persecution to go forth, yet are not these men to be discountenanced and discouraged whenever they properly come before the courts of justice ? Men who go about in the Apostles 1 language, and creep into people's dwellings, deluding weak women : men who go about and diffuse their rant and warm enthusiastic notions, to the destruction not only of the temporal concerns of many of the subjects of this realm, but to the endanger- ing their eternal welfare* And shall it be said that this court cannot relieve against the glaring impositions of these men ? That it cannot relieve the weak and unwary, especially when the impositions are exercised on those of the weaker sex ? It is by no means arguing agreeably to the practice and equity of this court, to insist upon it. This court is the guardian and protector of tjie weak and helpless of every denomination, and the punisher of fraud and imposition in every degree. Yes, this court can ex- tend its hands of protection : it has a conscience tot relieve, and the constitution itself would be in danger if it did not. To come to the present case : her? is a man, nobody knows who or what he is : his own counsel have taken much pains, modestly, to tell me what he is not ; and depositions have been read to shew that he is twt s methodist. What is that to me? But I coul her but her pastor, or the attorney, on the present oc- casion of preparing the deed in question, whereby the defendant was to step into and secure a part of her fortune under the veil of friendship, or rather by lighting up in her breast the flame of enthusiasm ; and undoubtedly he hoped in due time to secure the whole by kindling an- other flame, of which the female breast is so susceptible ; for the invariable style of his letters is, " all is to be com- pleted by love and union." But to return. In this place of inquisition she is by them tutored to be private in hex charity ; so that her relations, who are injured, were to know nothing of her present bounty. But would not any man of honour in the profession have told her, "Madam, you are going to do a thing which may embarrass your circumstances, and injure your relations ; a thing which the law will not support unless it is fairly and openly obtained; and, therefore, unless you will apprise your friends of it, I will not be concerned"? This, I say, was incumbent on the attorney to have done; but this was omitted, and it was done in secret. CASES IN CHANCERY. 291 Yet let it not be told in the streets of London that this preaching sectary is only defending his just rights, and must be supported in them : let them not be persecuted, I repeat, but many of them deserve to be represented in puppet-shows. I have considered this cause not merely as a private matter, but of public concernment and utility. Bigotry and enthusiasm have spread their baneful in- fluence among us far and wide; and the unhappy ob- jects of the contagion almost daily increase. Of this not only Bedlam, but most of the private mad-houses, are melancholy and striking proofs. I have staid much beyond my time : I have given this cause a long and patient hearing, and, inasmuch as the deed was obtained on cir- cumstances of the greatest fraud, imposition and mis- representation that could be, let it be decreed, That the defendant, Relly, execute a release to the plaintiff, Mrs. Norton, of this annuity, and deliver up the deed for securing it ; and if any difference arise, let the same be settled by the Master, who is to take an account of all sum or sums of money paid by the plaintiff, Mrs. Norton, to the defendant, or to his use ; for which purpose all proper parties are to be examined upon inter- rogatories, and all which sums the defendant is hereby decreed to pay, together with the costs of this suit. I cannot conclude without observing, that one of his counsel, with some ingenuity, tried to shelter him under the denomination of an independent preacher : I have tried, in the decree I have made, to spoil his inde- pendency. ^^^^^^^^^^^^^ The relief, in the case of Huguenin v. Baselcy, 14 Vet. 273, was " prayed upon the ground of undue influence exerted by the means of spiritual ascendancy." It is evident from several pas- sages in the argument of that case, p. 280, 286, &c that the existence of the present case was not known. So by the civil law, which entirely 1764. Norton v. Relly. 392 CASES IN CHANCERY. 1764. Norton v. Relly. prohibits donations inter vivos from persona standing in cer- tain relations on the ground of the influence which they must necessarily possess, the case of a confessor is enumer- ated. Pothier, TraUedes Do- nations enlrc Vifs, s. 1 cit. i6. 7th & 16th Dec. 1762, & nth Dec 1764. HALE v. LAMB. {Reg. Lib. a. 1764. fol. 58.) Covenant in William Hale, by his marriage settlement, bearing men^^aTthe" da te t ' ie ^M* °f -April, 1712, settled certain freehold settlor would sur- estates, and covenanted to surrender certain copyhold copyholds which lands to the use of himself for life; remainder as to part were intermixed to j^g intended wife for life; remainder for a term to with his free- . holds, to be raise portions for younger children; remainder to the settled upon the firgt an( j other 80ng ^ that marriage J n te il . remainder riage, with limit- in the same manner to his sons by any other wife, with raTbrMches of*" collateral limitations to his uncles, the family; his Paggen Hate, the eldest son of the said William Hale, his marriage, co- ty his marriage settlement, bearing date the I9th of Tenants to suffer November, 17^2, covenanted to suffer a recovery of the a recovery of the freehold (which freehold estates (which was afterwards done), and to T** ^ on< y» and settle the premises upon the issue of the marriage, to settle the copy- w r # . m ^ # hold (to which Paggen Hale having died without issue, this was a k fee) ;"52? biU brou 8 ht b y the grandson of the uncle of William billbroughtbya Hale, the first settlor, to have a specific performance of first settlor on tbe covenant m && settlement of the 26th of September, failure of issue of 1712, for the surrender of the copyhold lands. for a specific per- The Attorney-General, Mr. WiUes, Mr. Wilbraham y formance of tihe and Mr. Hoshine, for the plaintiff, covenant, to sur- render in favour of collaterals: held, that though the consideration of marriage extended to collaterals, yet that the son by the covenants on his marriage, and by his admis* sion in fee, had taken the copyholds discharged of the specific limitations. CASES IN CHANCERY. 293 Wherever the conscience of the covenanter is bound, 1764. this court will decree a specific performance, if the con- Halb sideration is sufficient. In the present case the considera- v. tions are blood, the name of the testator, and the entirety Lamb. of the possession. Blood is a consideration to raise a use at common law ; Jenk. Cent. 2 Ro. Ab. 782, it will also do this in the case of collateral limitations contracted for. Osgood v. Strode, 2 P. Wms. 245, where the court con- sidered the father as a purchaser of the collateral limita- tions. Vernon v. Vernon, 5 P. W. 594, where a col- lateral limitation to a brother was decreed, though the estate had never come from the father, and he was but a party to the deed. The cases of Jenkins v. Kentish, 1 Lev. 160. and Waits v. Bullas 9 1 P. W. 60, are still stronger. Goring v. Nash (a) is a very recent confirma- tion of this doctrine. The statute of fraudulent convey- ances is no objection ; the covenant immediately bound the covenantor, and left the same lien on the heir. Mr. Perrot and Mr. de Grey for the defendant. The remainder in the present case is voluntary, and cannot be executed against an heir. Lord Hardwicke held, that courts of equity cannot lay down any other rule than what is followed at law upon the statute of Elizabeth. In all the cases which have been cited, the father was either a purchaser or a party to the deed. In Goring v. Nash, in White v. Stringer, 2 Lev. 106, and Osgood v. Strode, the estate was settled by the father. In Stephens v. Trueman (b), he was a purchaser of the equity for the collaterals by making a contingent interest certain. The case of Belltngham v. Lowther, 1 Ch. Cz. 243, is the only case where the estate came from the hus- band, and there the consideration was held not to extend 1 to the collateral limitations; the others were provisions of (a) 3 Atk. 185. (6) I Vc*. 73- 294 CASES IN CHANCERY. 1764. the father, who is the best judge of the provision, and of Hale *^ € 9 uan ^ um ^ e child ought to take. Cook v. Arnham, v. 3 P. W. 283. For. 36. But in this case Paggen Hale Lamb. j^ by fojg actgj made himself the absolute owner of the copyholds, and barred all right of the plaintiff. The Lord Chancellor. nth Dec. 1764. This bill was brought for a specific performance of a covenant in a settlement of the 26th of April, 1712, for the surrender of some copyhold lands. On the part of the defendant it was insisted that the court would not decree a specific performance of a covenant voluntary, and without consideration : and this was the single ques- tion. This was answered, not so much by controverting the position as by fact ; for the position is undoubtedly true, that a court of equity will not decree a specific per- formance of a voluntary covenant, which is in equity no covenant at all, and only a nominal one at law. But they insisted that a covenant to settle on the blood would raise an use to give a subpoena, and to call for this court to aid in the execution of the estate ; and this they established by cases at law, and authorities in this court : Osgood v. Strode, where the claim of a nephew was established by two Lord Chancellors ; Watts v. Bullae, where the court said, that because the consideration of blood would' at common law raise an use, and, as before the statute of 27 Hen. 8. such cestuy que use should have compelled an execution of the use in a court of equity, so would this imperfect conveyance raise a trust in respect of the consideration of blood, and consequently ought to be made good in equity, which is good sense (a) ; Vernon v. Vernon, which is to the same purpose. (a) Lord Hardwiclce, how- by Lord Keeper Wright in ever, in Goring v. Nash, cen- Watts v. Bullas, " his reason- sured the doctrine laid down ing being too large, owing CASES IN CHANCERY. 295 It seems, therefore, that a settlement made on mar- riage, with extension to collaterals, if defective in law, should be made good in equity for the same collaterals ; for the consideration of marriage and settling the estate runs through all the limitations, and the authorities con- firm the reason. Nor do I see any sound objection to this ; for a man's serious disposition by will supersedes the heir at law without injustice, and these cases have no- thing to do with the statutes against fraudulent convey- ances. Therefore, if William Hale, the settlor, had died without issue male attaining twenty-one, I think the uncle would have been entitled to a specific execution of the covenant; because, in such case, it was consistent with the will and intent of Mr. Hale, the settlor. But as the preceding limitations of the tenancies in tail conveyed an incidental dominion over the remainders, and Paggen Hale actually suffered a recovery of the free- hold, with which the copyholds are by the original settle- ment taken notice of, to lie intermixed, if William had executed the covenant, there cannot be a doubt but Paggen Hale would have barred the remainder : his own cove- nant in his marriage settlement bound him to do it. But as the covenant was only executory, and he was left in full legal dominion of the copyholds, he had nothing to do but to declare that he would take them, discharged of any specific limitations, which, if actually made, he could and might have destroyed ; and that he has manifestly done by his own repugnant covenant in his marriage set- tlement, and by his admission in fee. It is, in my opinion, absurd to say, the descent of the executory covenant should put him into a worse condition 1764. Hale v. Lamb. [296] to his being then new in the consideration of blood to the court, and pursuing the raise an use." maxims of law too far as to 996 CASES IN CHANCER*. 1764. Halb V. Lamb. than that covenant executed by a settlement ; attd that he could not loose, eodem modo quo ligatur, by a declaration of a contrary will, and contrary covenant Bill dismissed. The question how far the consideration of marriage in a settlement will extend to collateral relations of the settlor, has not yet received any satisfactory adjudication. The recent cases upon the subject are, Johnson v. Le- gard, 3 Mad. 283. 6 M. & S. 66. Clayton v. Lord Grey de WUton, 3 Mad. 302. 6 M. & S. 67 n. Fairfield v. Birch, cit SugcL Pnrch. 645. and Appendix. Sutton v. CheU fpynd, 3 Meriv. 249. Cor- mick v. Trapaud, 6 Dow. P. c. ea m 11th Dec 1764. S.C. Cit. 1 Bro. C. C. 444. Bequest of money to build and en- dow an hospital upon land not already in mort- main, held to be void under the stat. 9 Geo. 2. PELHAM v. ANDERSON. (Reg. Lib. b. 1764.. fol. 63.) Charles Pelham, by his will, bearing date the 4th of May , 1760, directed that his executors should build and endow an hospital for eight poor persons on the south-east side of Broclesbie churchyard, or at such other place as the testator should, by writing under his hand, appoint, in case he should not have done it during his lifetime ; for which purpose the testator charged his per- sonal estate with the sum of <£2000. And if the said building should be begun in his lifetime, or he should leave any plan thereof, then he desired that such plan might be pursued and executed. Mr. Willes and Mr. Hoskins for the next of kin; Mr. Yorke and Mr. Perryn for the charity. CASES IN CHANCERY. 297 The Lord Chancellor held the above devise void, 1764. under the statute of mortmain. Vide the Attorney-general v. Tyndall, ante, p. 207* and the note at the end of it. Psluam V. Andebson. BODENS v. LORD GAL WAY. 12th Dec m4. s c {Reg. Lib. a. 1764, fol 39.) AmbMls.' Me li or a Bodens, by her will, bearing date the 26th Bequest of per- of April, 17589 after giving several legacies and annuities, during his life, gave the residue of her estate to the plaintiff, George j^. d *J? e has no . Bodens, in manner following : viz. her house and all her hdd? the boniest effects to be sold and laid out in the ftinds for the plaintiff over was void, as r being too remote. (after all the legacies were paid) during his life ; and if he had no heirs, to his sister, Mrs. Jane Watson. The cause came on at the Rolls on the 25th of May, 1761 (a), when his Honour directed a general account, but declined giving any opinion as to what interest the plaintiff took in the personal estate. It now came on for further directions. Mr. Serjt. Whittaker, Mr. Yorke, and Mr. Crofts for the plaintiff. The Solicitor-General, Mr. Ambler, and Mr. Bicknell for the defendants, contended, that the court would con- strue the word has in the same way as the word have was construed in Target v. Gaunt, 1 P. W. 432. and other similar cases, by which means the devise over would be good in case the plaintiff had no issue at his death ; it was also urged, that this was a contingent devise to the children of the plaintiff: if he should have any, to them ; if not, to the defendant. {a) Amb. 398. nom. Boden v. Watson. 298 CASES IN CHANCERY. 1764. The Lord Chancellor. Bodens I have laid it down as a principle, that in all questions v * of this nature the whole will must be taken together, and a judgment formed from thence of the testator's in- tention. Were I to determine this limitation over to be. good, I should destroy the principal intention of the testatrix, which was, that George Bodens and his issue should take before Mrs. Watson. I cannot imply a gift to the issue as purchasers, for such an implication must be necessary ; which is not the case here. The word heirs must mean heirs of the body, and the testatrix certainly intended that not only George Bodens, but also his issue, should take preferably to Mrs. Watson; and that can only be by transmissibility, for they cannot take as purchasers : it is the same as if it had been given to him for life, and to the heirs of his body ; and if no such heirs, then over. The failure of issue is general, and I can find nothing to confine it to a particular time; I must therefore decree the residue of the money to be paid to the plaintiff (a). (a) The cases upon the v. Penny, i£.20. S. C. 19 Ves. subject of limitations over of 545. Elton v. Eason, 19 Fes. personal property, which are 73. Britton v. Twining, 3 too numerous to bear citation, Meriv. 183r Kinch v. Ward, are collected in 2 Bridgeman*B 2 S. and S. 409. Digest, 244. To these may The cases upon this point be added Sprigge v. Jeffery, comprised in the present 1 Cox, 63. Doe v. Ellis, 9 publication, are Salkdd v. East, 382. Barlow v. Salter, Vernon, ante, Vol. I. p. 72. 17 Ves. 479. Lyon v. Mit- Gray v. Shawne, ib. 153. chell, 1 Mad. Rep. 467, and Taylor v. Clarke, ante, 202. the report of Tothill v. Pitt Grey v. Montagu, ib* 205. subjoined to it. Brounker v. Howston v. Ives, ib. 216. Bagot, 1 Meriv. 271. Bonn Destouches v. Walker, ib. 261. CASES IN CHANCERY. 299 ASHBY v. BLACKWELL. lothJune, 1765. {Reg. Lib. Min. Trin. 1765.) ^ ** The plaintiff being possessed of <£1000 Million Bank A joint stock stock, for some time received the dividends herself, but ^ouueda^^^ afterwards employed John Price, a broker, to receive transfer of stock them for her. Price forged a letter of attorney from her letter of attor- empowering him to sell the stock, which he did to the n 1 ? ?s he * d that the company, defendant, Blacktvell, and the stock was transferred into and not the fair BlackwelTs name in the books of the company. toiMhTloM 011111 This bill was brought for a re-transfer of the stock, or satisfaction from the other defendants, the trustees of the Million Bank. It being agreed upon all sides that the plaintiff was entitled to relief, the question was, whether the defendant, Blackwell, or the company should bear the loss. It appeared that by an order of the company made in 1713, no transfer was to be made of their stock by virtue of any letter of attorney executed in the country, unless attested by the minister of the parish and one of the « churchwardens ; nor by a letter of attorney executed m town, unless attested by two housekeepers known to one of the directors, or to the secretary of the company. That • the forged letter of attorney was attested by two names, which had no addition to them when produced to the se- cretary of the company, and that he asked Price who they were, who answered that the plaintiff executed the letter of attorney in Savile-row, and that the witnesses were housekeepers there ; and that upon receiving such answer the secretary wrote against their names " Savile- row" That in fact the witnesses were waiters in Sam's VOL. II. X 360 CASES IN CHANCERY. 1765. AsHBY V. Black well. coffee-house, in Cornhill. That Price had transferred Bank and South Sea stock and annuities under other forged letters of attorney to a large amount, for which he was indicted, convicted, and hanged ; and that the Bank and South Sea Company had made good the losses ; and that since the detection of this forgery the Million Bank Company had made an order, by which they for the future would make good such losses. The Solicitor-General mi Mr. Willes for the plaintiffe. Mr. Wedderburne and Mr. Madocks for the defendant BlackweU. The company considered themselves as bound to see that transfers were properly made, and had therefore made rules and regulations with respect to them. The purchaser of stock does not know till he comes to accept the transfer whether it is made by the owner in person or by attorney. It would be looked upon as impertinent in him to ask sight of the letter of attorney ; the propriety and validity of it is under the care of the company only. This is the practice in all the great companies, and is the constant method of transferring stock. If it were other- wise it would affect the companies, whose interest it is to make negotiations of stocks as easy as possible. The company have broken their own laws by admitting a let- ter of attorney not attested according to their rules. The case of Hyldyard v. South Sea Company, 2 Wms. *]6. is erroneously reported (a), for upon search of the regis- ter's book it appears to have been heard before Sir Joseph Jekyll upon bill and answer only. Even supposing the determination to have been right, it must have been owing to there not being any proof of the method of ne- gotiation, and then the court was under a necessity of de- ciding upon some principle, and adopted that of caveat (a) Fide Mr. Car's note. CASES IN CHANCERY. 301 emptor* But here is evidence to distinguish the present 1785. from that ease. All the other companies having made Asmbt good the loss upon the other forgeries shews their sense «. of the justice of the case, and the new order of this com- Blackwbll. pany speaks their sense of it too. Mr. Yorke tor the company. The decree in the case of Hyldyard v. South Sea Company », and the authority of Monk v. Graham before Lord King, when chief justice, have induced the com- pany to stand this suit. And in a question between in- nocent persons the principle of caveat emptor takes place ; as it was said by the court in the former of those cases, it was incumbent upon the purchaser, and at his peril, to see that such letter of attorney was a true one. It was more his concern and in his power to inquire into the reality of it than of any person : so that the rule of caveat emptor is properly applicable to him. The company are no more than trustees, or as was said in that case, instru- ments and conduit pipes. The rules and regulations which they made were for the credit of the company, but were not intended to throw upon them that care and caution which both law and reason require of the pur- chaser, than whom no other person can be so properly concerned to take it. This company is a private com- pany, and the same reasons which have induced the great public companies to make good their losses does not hold to this. The Lord Chancellor. The question for me to determine is, whether the trus- tees of the Million Bank Company, or in other words, the Million Bank Company or BlackweU are to sustain the loss occasioned by this forged transfer of the plaintiff's stock ; and, notwithstanding the authorities cited, I am of opinion that the company must sustain the loss. By the x2 302 CASES IN CHANCERY. 1 765- original deed of agreement entered into when the company JZ^Xy *&s formed, there is a clear direction in what manner stock- v. holders shall hold, and in what way they shall be de- Blackwkll. prived of their stock, to which the mode of transfer is tied up. It was the original intention that transfers should be made personally, and it seems by operation of law the method of transfers by letter of attorney was adopted upon this maxim, Qui facit per alium facit per se. A trustee, whe- The letter of attorney is no part of the title, but an ther a private person or body authority to transfer. A trustee, whether a private per- cor P or JJ e » mu * son or body corporate, must see to the reality of the au- sec to wi6 reality of the authority thority empowering them to dispose of the trust-money; to S^SSta for if the ***** is made ^thout the authority of the trust-money; for owner the act is a nullity, and in consideration of law and consideration of ^"ity the rights remain as before. This is such plain, law and equity a clear reasoning, that I need do no more in order to give right remain* as ^ e plaintiff complete relief than declare that she is en- before. titled to <£1000 share of the stock of the company, and jhat they having tranferred this from her name to the name of another without authority, should restore her name to that share, and pay her the dividends accrued since the transfer. But this would involve the company and Mr. Blackwell in a suit, which is equally ripe for my decision now. Against Mr. Blackwell the rule caveat emptor is al- leged, and that he ought to have inquired into the reality of the authority, and this objection is founded on the case of Hyldyard v. South Sea Company, and the reasons of that case. But my judgment differs both from the one and the other, both from the decision and reasoning. I think it was not incumbent upon Blackwell to inquire into the letter of attorney, because I think the letter of attorney in this and similar cases is no part of the pur- chaser's title. The title is the admission into the com- CASES IN CHANCERY. 303 pany as a partner pro tanto, he accepting the stock on the conditions of the partnership. The letter of attorney is only the authority to the company to transfer. In fact they have so considered it, for they have made regula- tions to prevent frauds in letters of attorney, which they now insist concerned not them, but the purchaser, which is repugnant, and that he must go into every part of the kingdom to satisfy himself that it is attested by the mi- nister and churchwarden. In the present case the company (or which is the same thing, Jeffreys, their secretary,) thought it their duty to examine this letter of attorney, but did it with gross ne- gligence. The testimony came deficient ; he altered it upon Price's representation, without authority and con- trary to the rule laid down in their own books ; and with writing in the custody of the company which would have detected the forgery. The purchaser on the other hand trusted nobody but the company. He was admitted to this stock, and accepted the transfer according to the terms of the original deed of contract. He must not be deceived by the company. On the other hand they must and ought to answer for their and their servant's negligence. And it will be of no public detriment if my decree tends to make the directors of public companies to attend to the business of those companies, and teaches them not to leave the important transactions of millions to undirected clerks and book- keepers, with illiberal salaries, and who therefore dare not look a broker in the face. I am therefore bound to decree that the company re- store to Mrs. Jshbf/y the plaintiff, her share of i?1000, by replacing the same in her name, and account for and pay to her the dividends accrued since the said transfer ; and that they pay to Mr. BlackweU the sum he paid for the 1765. ASHBY V. Blackwell. ■*'\ 30* CASES IN CHANCERY. 1765. A8HBY V. Blackwell. said transfer, together with interest at four per cent. ; and that they pay the plaintiff and Mr. Blackteell costs. As to payment upon forged authorities, vide Price v. Neale, 3 Burr. 1354. Bl Rep. 390. Jones v. Ryde, 5 Taunt. 489. Bruce Y.Bruce, ib. 495. Smith v. Mercer, 6 Taunt. 76- Fuller ▼. 1 Rtf. & Mo. 49. 15th & 17th May, • 17th of June, 1765. S.C. Amb. 510. 3 Bum. Eccl. Law, 439. Where an agree- ment having been made be- tween the rector Coggles, in the county of I^icester, and at the relation 9n of the plaintiff, Dr. Blair ^ the rector, and a bill by the THE ATTORNEY-GENERAL v. CHOLMLEY. (Reg. Lib. a. 1764. /o/. 531.) This was an information by the Attorney-General on behalf of his majesty, as patron of the rectory of Burton of a parish, al- lotting lands in lieu of the ancient glebe, with some ad- dition, in conse- quence of the rector's losing said Dr. Blair in his own right against the defendant, Cholmley, as proprietor of lands in the parish, the de- fendants, Hopkinson and Nidd 9 as tenants of part thereof, and the Bishop of Lincoln as ordinary of the diocese; certain rights of common by inclosure, and also providing an annual pecuniary compensation in lieu of tithes, which upon the successors declining to abide by, an amicable suit was instituted in this court, to which the ordinary (but not the patron, who was the King,) was made a party, and the parishioners agreeing to increase the stipend, a decree was made by consent to ratify the articles : held that this agreement, though acquiesced under for 80 years (40 of which, however, the rector against whom the decree was made had remained incumbent), was not binding as to the pecuniary composition, the patron not having been a party, and the composition naving been made only with regard to the past, and not to the future increasing value of the tithes. CASES IN CHANCERY. 308 and it prayed that a decree of the Court of Chancery, confirming an agreement entered into between a former rector and some of the parishioners, by which the then rector had an enclosure and allotment, and a pecuniary compensation in lieu of glebe and tithes, might be declared null and void as against Bis majesty and his successors, patrons of the said church, and the plaintiff Dr. Blair, and all future incumbents of the said rectory ; and for an account of tithes become due to the plaintiff, Blair, since the 12th of January, 1762, in respect of the lands in the occupation of the defendants, &c. The defendants by their answer admitted the pre- sentation, &c. and the ownership and occupation of lands within the parish, and that they had taken the tithes thereof to their own use since the said 12th of January, 1762 ; but they insisted that the plaintiff, Dr. Blair, was not entitled to tithes in kind as claimed by the bill ; for that by articles of agreement dated 21st of January, 1664, made between Montague Ckolmley, Esq. an an- cestor of the defendant Ckolmley, and Henry Hall, Esq. the then owners and proprietors of all the lands within the said town and parish of Burton Coggles, of the one part, and William Jyscougk, clerk, the then rector of the said rectory, of the other part ; reciting among other things that there was a general inclosure agreed upon and intended to be carried into execution between the said parties, touching the field of Burton Coggles ; and that forasmuch as the said parties had agreed that a consider- able part of the lordship should still be kept in tillage for the maintenance of husbandry, and had likewise agreed to. better and advance as well the said rectory and yearly profits thereof and thereout arising to a considerable value over and above what the same had been theretofore yearly worth and let for, as well as their own lands ; and also reciting that the glebe lands belonging to the said 1765. The Attornby- Genbral V. Cholxlkt. 306 CASES IN CHANCERY. 1766. The Attorney- General t>. Cholmlst. rectory did not consist of above 84 acres ; and that the said rectory and glebe lands, with all manner of tithes thereto belonging, had not been let for above jPIOO per annum. It was therefore agreed, and the said Cholmley and Hall did thereby covenant with the said Ayscough and his successors, that he should for ever thereafter enjoy the several parcels of ground therein particularly men- tioned, and by him chosen, in lieu of the glebe lands for- merly used with the said rectory ; which several parcels of ground are therein mentioned to contain 113 acres, one rood, and 36 perches, which were therein recited to be of far greater annual value than the said 84 acres of glebe, in consideration whereof the said Montague Chohn- ley did, for himself and his heirs, covenant with the said Ayscough, and his successors, incumbents of the said rec- tory, to pay yearly to him and them the sum of £3t 13s. in satisfaction of all tithes, great and small, to grow due to the said Ayscough and his successors from the said Cholmley, or any of his tenants in the said parish (except as therein mentioned), which sum was agreed to be charged upon the lands therein mentioned, and reputed to be of the yearly value of £50, part of which sum, namely 8#. 3d. was thereby agreed to be paid by the said Chokn- ley and his heirs, to the intent that the said Ayscough and his successors should pay tithes of a close therein mentioned, called Pickworth Pasture, to the parson or vicar of Basingthrop, within which the same lay. And the said Henry Hall did thereby for himself and his heirs covenant in the like manner to pay the yearly sum of £4A 15s. 3d. in satisfaction of all tithes due from him or his tenants (except as therein mentioned), which sum of £4A 15s. 3d. was agreed to be charged upon the lands therein mentioned, and reputed of the yearly value of <£55 ; and it was further agreed that the said Cholm- ley and Hall should for ever thereafter enjoy such part CASES IN CHANCERY. 307 of the glebe lands belonging to the said rectory as should happen to be inclosed within any of the plots of ground newly inclosed within the said lordship, and taken in by them respectively, without any claim to be thereto made by the said Ayscough, or his successors, discharged from the payment of all tithes whatsoever (excepting and re- serving to the aaid^Ayscough and his successors the be- nefit of all marriages, christenings, churchings, burials, and Easter offerings thereafter happening within the said parish); and it was further agreed that the said Ays- cough and his successors should for ever thereafter be discharged of all constable lays, as well for repair of high- ways as otherwise, andtxf all duties and payments, as well to church as poor, except such poor as might thereafter fall upon the town by reason of persons inhabiting it, or the parsonage-house, or cottage thereto belonging, which persons were at all times thereafter to be relieved by the said Ayscough and his successors. That in pursuance of the said articles of agreement all the lands within the said parish were inclosed and enjoyed according to the said articles, and that the rectors of the said parish had ever since enjoyed the said 113 acres, one rood, and 36 perches, and the same were then enjoyed by the plaintiff, Blair ; that the sums of money agreed to be paid by the said Choknley and Hall were received, with the rents of the said 113 acres, one rood, and 36 perches, by the said Ayscough, and afterwards by John Adamson, his successor in the said rectory, in lieu of all their tithes and former glebe lands, till the year 1677 ; but that in the year 1677 Adamson declining to abide by the agreement, the said Montague Cholmley, together with the infant daughter and heirs of the said Henry Hall, then deceased, exhibited a bill in the Court of Chancery against Thomas, the then Lord Bishop of Lin- coln, within whose diocese the said parish of Burton 1765. , The Attornby- Gbnbbai. v. Cholmlby. 908 CASES IN CHANCERY. 1706. The Attohkbv- Gbnbra* GHOUfLBV. Coggles lies, and against the said John Ada/mam, to cany the said articles of agreement into execution, and to be quieted in the possession of the lands against the claims of the said Adamsony otherwise than under the said ar- ticles ; and that the said Adamson by his answer refused to perform the agreement, unless the plaintiff in the said suit would agree to what he had proposed, which they or their agents had promised, viz. to add £16 to the <£80 89. 3d., that is to say, £*] 1*. 10d. by the said Montague Choknley, and £9 18s. 3d. by the said Mr. Hall, which if they consented to* and would secure the same on all the lands within the said rectory, he was willing the same should be confirmed by a decree. That the cause was heard on the 3d of July, 1677> ▼hen it was decreed that the said articles should stand ratified and confirmed, to be observed and performed by all the par* ties, plaintiffs and defendants, their heirs, successors, exe- cutors, administrators, and assigns, and it was thereby decreed, according to the offer in the said defendant's- an- swer, that over and beside the annual sum by the articles agreed to be paid by Mr. Chobnley in Beu of tithes, the said Mr. Ckolmley, his heirs and assigns, his and their tenants, should pay the additional annual sum of £1 U. 10d., being in all £42 15* 9rf. ; that the same should be charged on all the lands of the said Mr. Cholm- ley within the parish ; and that the said infant daughters and heirs of Mr. HaU> their heirs and assigns, and their tenants, should pay in like manner the additional annual sum of £8 18a. 2d, being in all £53 13*. &fc ; and that the said plaintiff and defendant, Adam&m, their heirs, successors, and assigns, should for ever thereafter hold and enjoy the several parcels of lands, allotted to them by the said articles, in lieu and Sir Anthony Abdy for the information. This is a question of great importance, and arises upon the agreement of 1664, which is the original foundation of the defendant's claim of exemption from the payment of tithes. There are two capital objections to that agree- ment, supposing it unimpeached by the 13 EHx. 1st. It was confessedly entered into between the then owners of lands within the parish and the then rector only ; and therefore as neither the patron nor ordinary were parties, it could not bind any future incumbent. The 2d objec- tion to it is, inadequacy of compensation. The agree- ment appears to be founded either in fraud or mistake. It recites that the glebe belonging to the rectory did not exceed 84, though it actually exceeded 102 acres, besides a very valuable right of common. But what the defendants principally rely upon is the decree of 1677 m confirmation of the agreement. But the same objection for want of parties holds still stronger here. The rectorial tithes are aliened, and the patron, whose particular right is so much affected, is again omitted as a party. The objection is also considerably strength- ened by the consideration that the party in this case is the King, whose rights cannot be taken away by collusion. 1765. The Attorney-* General t>. Cholmley. $12 CASES IN CHANCERY. 1765- The Attorney- G&NBRA& Cholmlby. Where a transaction is illegal, a decree can give no force to it It is particularly provided against by the 43 EUz. c. 9. 8. 8. where it is declared, " That all judg- ments thereafter to be had for the intent to have and enjoy any lease contrary to the said statute, or any of them, shall be deemed void, in such sent as bonds and covenants are appointed to be void which are made for that purpose.* For by the 14 Elix. c. 11, " all bonds, contracts, promises, are declared to be of the same nature to all intents and purposes as leases, many evil disposed persons having (as is there recited) defrauded the true meaning of the 13 EUz. c &0, by asserting that bonds and covenants were not in law taken to be leases." The relief prayed by the information cannot be ob- jected to on the score of laches. Mr. Jdamson, who was party to the decree, and consequently bound by it, lived till the year 1718. Dr. Blair, who is answerable only for his own acquiescence, was not presented till VJt&> and the information was filed in 1762, which, considering the difficulties which he had to encounter in procuring an accurate knowledge of the defendant's claim from exemp- tion, is but a very short time. But at all events this argument can be no objection to the crown, which cannot be prescribed against. It is therefore almost unnecessary to take notice of the acquiescence (if any) of Dr. Bhbr and his predecessors. The information by the amendment has Waived any relief in respect of the glebe. It was impossible to restore Dr. Blair to the possession of those rights which had been enjoyed by the rector before the agreement was en- tered into. But it is no objection that the agreement cannot be rescinded in part because it cannot in tofo* The impossibility of doing complete justice cannot be urged as a reason for not doing as much justice as the state of things will admit That part of the agreement CASES IN CHANCERY. 813 respecting the tithes was totally distinct from what related to the glebe. As to the prohibition, it must be considered that no final judgment was ever pronounced in the suit in which it issued. How then can the writ of prohibition be set up as a bar to the rector's claim of what is due by common right ? Besides, the defence arising under the prohibition is inconsistent with the recitals in the agreement. The Solicitor-General and Mr. Madocks for the de- fendants. At common law the parson, patron, and ordinary might alien the possessions of the church, and though the 13 Elix. has restrained this power, yet courts of equity have always given a liberal construction to that act, and expounded it by a maxim of common law, ecclesia me- liorari, turn deteriorari potest. They have therefore held that the legislature did not intend to prevent exchanges and bargains by which succeeding incumbents might be benefited. There have been many instances of decrees establishing agreements between the lay parties,' their heirs, executors, and administrators, and against the in- cumbents and their successors. The case of Edgertey v. Price, FincKu Reports, 18, is a remarkable instance of this. That was a bill to have an agreement for inclosing certain lands and common fields made between the plain- tiff, who was lord of the manor, the rector, and others, who were seised of lands in the parish, carried into exe- cution. The report says that upon the cause coming to be heard before the Lord Keeper Finch, he found upon what was said and read that the agreement was good, and the inclosure was for the benefit of all die parties in- terested, but that Price 9 the parson, and the Lady Bait- inglase were the chief persons who opposed the establish- ing of this inclosure, he ordered them to attend together 1766. The AtTOHNEY- ObNBRAIi 0. Crolmlxy. 314 CASES IN CHANCERY. 1765. The Attorney* Gbnbral v. Cholklby. with the plaintiff Edgerley, who was lord of the manor, and this was in order to an accommodation, and he satis- fying them that the agreement was beneficial to all parties, and particularly to the church, because the plaintiff agreed to pay to Price and his successors i?60 per arm. (besides the lands allotted to him in exchange,) &c. The decree was that the agreement and the inclosures made pursuant to it stand ratified and confirmed, and that all parties, their heirs, assigns, and successors enjoy their respective allotments in severalty against each other, their heirs, assigns, and successors; that at Christmas next the plaintiff should pay to Price, the parson, «£130, being the arrears of the £60 per ann. from the time of the agreement, and to secure the payment thereof, Sec. There is no instance of any of these agreements ever having been impeached by a decree of a court of equity ; and this practice continued until by the frequency of parliaments it became more convenient to have them esta- blished by the legislature. Had the judges who sat in the courts of equity at that time beat of opinion that, upon the construction of that statute, it was contrary to law to establish such an agreement,, this practice would never have originated. A different opinion will now disturb an uninterrupted and quiet enjoyment of lands and tithes for upwards of a century. The plaintiffs have made no proof of the inadequacy of the agreement at the time that it was made, and it is not to be presumed in- adequate when the incumbent and the bishop both sub- scribed to the propriety of it in their answers. But if Dr. Blair wants equity, he must do equity. Whatever may be considered of the question at law, yet in this court no agreement can be rescinded without re- storing the parties to their original situation. If this agreement is to be rescinded it must be rescinded in toto, CASES IN CHANCERY. 315 and not in part, as is now desired. He ought not to have 1765. a decree for tithes in kind but upon the terms of his ' ^ZT yielding up possession of the surplus glebe lands. Attobney- The record in the King's Bench is evidence of some General weight to shew that the ancient mode of tithing in the Cholmlby. parish before the decree of 1677 was according to the customs stated in that record. And even though it be not taken as decisive proof of the customs, yet it i& a strong ground for directing an inquiry respecting those customs. The Lord Chancellor. This is an information brought by the Attorney-Gene- 17th Junc - ral at the relation of Dr. Blair, for an account and pay- ment of tithes in kind : the claim of the rector arises de communi jure. The defence set up against the claim is, first, an agreement entered into in the year 1664 between the then rector and the owners of the lands in the parish, for accepting a yearly sum of £BO in lieu of tithes. I am of opinion that the agreement on the face of it is unequal as to the consideration thereby agreed to be paid to the rector ; for it appears that the agreement was altered into in order to effectuate an inclosure of the open fields in the parish, and no consideration is given as to the future improvement of the lands by such inclosure, of which the occupiers would reap the benefit. But I am clear that even if the agreement had been equal, it would not have bound the successor in the rectory, but would be void as against him. The next defence set up against the plaintiffs claim is a decree in 1677> which appears to have been made in a cause, instituted by consent, between the same parties that were parties to the agreement in 1664 ; for as to the bishop of the diocese being a party, I consider him set up as a man of straw, merely for form. And it is material VOL. II. y 316 CASES IN CHANCERY. 1765. The Attorney- General v. Cholmley. to observe, that the parties ^hemselves did not consider the agreement which had been executed as binding on the rector; for they considered the annuity of i?80 aa not being an adequate consideration for the rector's having given up his tithe in kind, and therefore they entered into a new agreement for allowing him an addition of i?16 8*. 6d. per annum; and on being allowed that addition, the rector, by his answer, consents to have the agreement established. It is true that the decree founded on this agreement does, in verbis, bind the successors in the rectory ; but this was a decree founded on an agree- ment, which the court never enters into the propriety of, when a bill is brought by consent of parties ; and all such decrees are drawn up by the register of the court in the words of the agreement, as a matter of course : but I am of opinion that such decree cannot bind the successor. The defendant's counsel have, it is true, cited cases of a similar nature, and urged the case of Edgerley v. Price, reported in Finch. I have looked into that case, and think it a very extraordinary one, particularly as the judge sent for the parties to attend him. I can pay no credit to it, nor look upon it as any authority, or anything more than the dream of some note-taker in this court. The agreement and the decree being thus laid out of the case, the next consideration is, whether a court of equity can relieve in the present case. And I am of opinion that there is not a better rule than that of equitas sequitur legem. It is a fixed rule at law that the crown and the church cannot be prescribed against : the first, on account of its high dignity ; the second, on account of its imbecility : quiafungitur vice minoris 9 condiiionem suam meliorare potest, deteriorare nequit. At common law, although the church could alienate with consent of patron, parson, and ordinary, yet it was under various restric- tions. The patron must be absolutely seised in fee CASES IN CHANCERY. 317 simple : if be was seised only of a fee simple conditional, or base fee, tbe alienation was void. Thus it stood till tbe disabling statutes were passed, which were wisely framed to prevent all alienations except by authority of parliament The patron was under the influence of inter- est : the parson complied with false notions of gratitude ; and the ordinary, where the crown was the patron (espe- cially if he had one of the lesser bishoprics), was not so unprejudiced in his consent as he ought to be. In the present case, the bar set up by the defendants amounts to a mode of alienation. If the decree be void, as I am of opinion it is, what then is there to send to law, when the point is about the extent of a decree of this court ? And even if it were sent thither, it must come back again to be ultimately determined here. It has also been objected that the length of time ought in this case to bar the plaintiff; but I think the legal rule, that no prescription can run against the church, must be adhered to. And, indeed, the length of time for which this agreement has been acquiesced under, is not so great as at first sight appears : Mr. Jdamson, who was rector in 1677? * n d party to the decree, and had a right to esta- blish the agreement during bis life, did not die until the year 1718. It has been further objected by the counsel for the defendants, that the plaintiff's bill prays to set aside the agreement so far only as relates to the composition in lieu of tithes ; but submits that the lands allotted in lieu of ancient glebe may continue in the state they now are in, which the defendants insist the plaintiff cannot do, but that the agreement must be confirmed or rescinded in toto ; and that the rector must give up the lands allatted to him under the agreement, which they contend are larger in quantity than the ancient glebe, and which ad- ditional quantity was a further consideration to the rector in the exchange. But this would be making wild work ; y2 1745. Tfce Avtobn&t* General v. C80LXUY. 318 CASES IN CHANCERY. 1766. The Attorney- General 17. Cholmlby. and, indeed, the proposition was only adopted at the bar as an effort of despair. I am clear that the lands allotted to the rector were only in lieu of the ancient glebe, and that the difference arose from the different quality of the land. The agreement, though contained in the same deed, is distinct : one part allotting land in lieu of the ancient glebe, the other providing an annual stipend in lieu of tithes. I have no reason to think that the lands allotted to the parson were for more than the glebe and tithes. It is the quality of the land, and not the quantity, which must determine the extent of the composition. Upon the whole the inclosure of the lands was for the general benefit of the parish ; and such lands will be con- tinually increasing in value, while the composition given to the rector in lieu of tithes will be continually diminish- ing in value : the composition here looks only to the value of the past tithes, without any regard to the future in- creasing value of tithes. In all acts of parliament which are made upon compositions with parsons, they are allowed a compensation for tithes upon improvements in futuro. If in the present case the parties had made an allowance for the future improved value of tithes, they would have stood on a different footing, and I should not have been inclined to relieve : they then would have been purchasers for a valuable consideration by allowing for the future improvements. The equity of this court would have been suspended by setting up equity against equity, and I should have left the rector to his legal remedy. Decree an account of tithes from the time of filing the information. This decree was afterwards affirmed in the House of Lords, 21st November, 1768. 7 Bro. P. C. Ed. Toml. 34. Vide also the case of Mortimer v. Lloyd, ib. 44. & O 'Connor v. Cook, 8 Ves. 537. CASES IN CHANCERY. 319 NORTHCOTE v. DUKE. 1 7th June, 1 765. S.C. (Reg. Lib. b. 1764. fol. 403.) Amb. 511. John Andrews, by indenture, bearing date the 24th Clause of ro- of November, 1718, in consideration of £350 and a th^UvwIncase broad piece of gold, paid him by Thomas Northcote, de- le8see °* W» re- mised certain premises to the said Thomas Northcote, should lease for his executors, administrators, and assigns, for the term of more th .^? 8C T en 99 years, determinable upon three lives ; and it was de- licence, the third clared by a clause contained in the said indenture, that if J^Sffi]^ the said Thomas Northcote, his executors, administrators, father's will, and or assigns, should at any time during the term thereby ^£* \ et ^'( or granted, devise, grant, let or set the said premises for fourteen years : , A 1 - A held, that it was any greater or longer term than for seven years at most no forfeiture, as at any one time, except it should be by his or their last he had not notice •ii-i 1 1 » 1 <* of the condition, will and testament, and to and for the use of any woman and as the lease that should be the wife of the said Thomas Northcote, or could no * ****** beyond the life of any child or children of the said Thomas Northcote, the lessor, it without the licence, consent or agreement of the said cou ^ d [ not P® 8 * ' .... an ln terest for Thomas Andrews, his heirs or assigns, in writing, first fourteen years had or obtained, then it should be lawful for the said John CCItauL Andrews, his heirs or assigns, to re-enter on the said premises, and repossess the same as in his or their former estate. The plaintiff, who was now the only surviving life, being entitled under the will of his father, subject to certain charges, in 17^2, demised the said premises to John Mills for the term of fourteen years, without licence. The assignee of Andrews, the lessor, threatening to bring an ejectment, this was a bill to be quieted in possession, 390 CASES IN CHANCERY. 1765* and to restrain the defendants from proceeding at law. XT ^^ It stated, that the plaintiff had not the original lease in NOBTHCOTB . . v. his custody, and was a stranger to the proviso. Dukb. jf r . Yarke and Mr. Hoskins for the plaintiff The execution of the lease is a dispensation in the proviso, and therefore the lease is not avoided at law. It was decided in Dumpor\ case, 4 Co. 119. that once a dispensation, it is always so. It is said there, " that the lessors could not dispense with an alienation at one time, and that the same estate should remain subject to the proviso after.'" But even though the lease be void at law, the forfeiture may be relieved against in equity. Hack v. Leonard, 9 Mod. 90. Cage v. Russel, 2 Vent. 352. The Solicitor-General and Mr. Jones for the defendant. This differs from Dumpor\ case, for here the exe- cution is part of the deed itself; the lease is therefore clearly avoided at law, nor can equity relieve. Equity can only relieve where the damage is certain, and where the breach of the covenant which occasioned the forfeiture has been accidental. In Descarlett v. Dennett 9 9 Mod. 22, relief was refused against a voluntary breach. Wafer v. Mocato, ib. 112, was a case of covenant not to alien without licence, where the court refused to relieve against forfeiture. The Lord Chancellor. The executor who made this lease for fourteen yean, took the general personal estate under the will, without knowing the particular circumstances relative to the lease of this estate. The lease itself appears to have been in the hands of another person : in this state of ignorance he grants this lease for fourteen years. Upon these facts three questions arise; first, Whether this be a forfeiture at law? Secondly, If it be a forfeiture^ CASES IN CHANCERY. 321 whether it is relievable in equity? and, thirdly, If re- 1766. lievable, upon what terms it is so ? XT To the first, it was said not to be forfeited at law by v. reason of the exception in the proviso ; and it was argued Duk*. on the principles in Dumpor\ case, that the exception is a dispensation ; but, in my opinion, the two cases stand on different grounds. In Dumpor*B case the condition was, not to alien to any person whatsoever; and the subse- quent licence operated as a release of the condition, and then the law took place, viz. that a release for a moment is a release for ever. In the present case the restraint is tied up, exclusive of the devise and provision for his family, and has never been released. But the two last questions determine my judgment. When you come for a forfeiture you must be very exact and certain. I am of opinion that the lease is not a breach of the condition, because it is not for a certain time of duration, for life is uncertain ; and the lease is not, nor could be, for fourteen years absolutely in all events, but must determine with the life-interest in the lessor. In the next place, the plaintiff taking the estate as executor, is like the case of an heir taking a freehold, and ought to have notice of the condition, in order to effect his interest by way of forfeiture for breach of the condition. Even a court of law ought to see that in such a case there is some injury done to make the act a breach of the condition so as to forfeit the estate. It can be of no use to the landlord in this case to exact the forfeiture : let the plaintiff be a good or bad tenant, it will not affect the landlord, for the representatives of the first lessee are liable for the rent. It would be to suppose the lessee would hurt himself, in order to hurt the landlord. It was said, that equity will not relieve where the act is voluntary; but the landlord may not have been injured 322 CASES IN CHANCERY. 1765. NORTHCOTB 0. PUKB. at all, or in a maimer for which I can compensate him. I take the rule to be, that in all cases where a person has broken a condition, and forfeited a penalty, equity will relieve if there can be compensation (a). I think the court may relieve where a tenant cuts down timber. In this case there is no complaint that the tenant does not occupy the land very properly. These are at present my thoughts; but I shall not determine the question now, but retain the bill for twelve months, with liberty for the defendant to bring his ejectment. (a) The doctrine of giving relief in a court of equity in cases of forfeiture for breach of covenant, upon the prin- ciple of compensation, has; been much discussed in the late cases nf Hill v. Barclay, 16 Ves. 402. and 18 Ves. 56. Bracebridge v. Buckley, 2 Price, 200. Roffe v. Harris, cit. ib. 206 n. Reynolds v. Pitt, cit. ib, 212 n. White v. Warner, 2 Meriv. 459. which have overruled the doc- trine laid down by Lord Ers- kine in Sanders v. Pope, 12 Ves. 282. This relief may now be considered as confined, according to the doctrine laid down by Sir T» Plumer in Rolfe v. Harris, to cases where the omission and con- sequent forfeiture have been the effect of inevitable acci- dent, and in which the injury or inconvenience arising from it is capable of compensation; but where the transgression is wilful, or the compensation impracticable, the court will not interfere. As to refusing to compel the specific performance of covenants to repair, &c. vide Rayner y. Stone, ante, 128. and note. CASES IN CHANCERY. 323 GARDEN v. PULTENE Y. « M*J> *** June, 1765. AC. SOUTHCOTE v. EARL OF BATH. ^.499. {Reg. Lib. a. 1764. /o/. 630.) Thomas Pulteney being possessed of £l*]4fj 6s. Bequest of mo- lid. South Sea stock, £WJ5 Ss. lid. Old South Sea an- ^j?*^f* T nuities, ^2736 14*. *\d. Bank stock, and £ 2000 East *• an in&nt, and India stock, by will, 7th of January, 17*1 , gave several ton or W m 1 wur[ annuities for lives; and directed that what dividends shall have, were then due upon any of the stocks or funds in the vided between Bank, South Sea, India, or other funds or securities, and them; and in case there shall not received by him, should be received by his executrix, be but one and laid out in purchase of some other stocks with the Ji? UII ?P r to 9* , r then the whole advice of his nephew, William Pulteney, esquire, (after- to him : held, wards Earl of Bath), for providing a fund for the better f^^^ payment of the said annuities in case his then present subject to which estate in the stocks was not sufficient for that purpose, children^ook And after the decease of the several annuitants, he devised the whole, in these words : I give to my nephew, William Pulteney ', esquire, his executors, administrators, and assigns, all my principal stocks in the Bank, South Sea, India, and other public funds or securities, or in other securities whatso- ever, in trust, for his son, William Pulteney (afterwards Lord Pulteney), now an infant ; and for such younger son and sons as the said William Pulteney, now an in- fant, shall or may have, to be equally divided between them, share and share alike ; and in case there shall be but one younger son, then I give the whole to that younger son. A bill had been brought by the next of kin of the testator, in the lifetime of Lord Pulteney, to have several 384 CASES IN CHANCERY. 1765* questions determined, and (inter alia) to have the opinion Garden °^ t ^ le court w ^ at i nterest Lord Pulteney took under the v. devise. Upon the hearing of the cause, on the 19th of Pulteney. June, VJ4&, the court declared, that so much of the tes- Vm tator's personal estate as was not disposed of by his will, Earl of Bath, belonged to, and ought to be divided amongst his next of kin, subject to his debts and funeral expenses ; and de- clared that his cash, ready money, Bank notes, arrears of rent, money due to the testator upon balance of account with the Bank, and debts due to him at his death, and also the surplus dividends accrued on his stocks and annuities during the life of the annuitants, ought to he considered as not disposed of by his will ; but that aU such dividends and sums of money as were due and in arrear on any of the stocks and annuities at the testator's death, and also the whole surplus of the dividends ac- crued or to accrue, due on the stocks and annuities since the decease of such of the annuitants as died first, ought to be considered as disposed of by the will for the benefit of Lord Pulteney, subject to the contingencies in the will : an account was directed accordingly, and the dis- tribution to be made of the undisposed personal. And it was ordered that such surplus dividends as had arisen since the decease of such of the annuitants as '"died first, or which should thereafter arise during the minority of Lord Pulteney, should be placed out at interest in the name of Lord Bath, in trust for Lord Pulteney ; and as the interest and dividends arising thereon should amount to a competent sum, the same was to be placed out at interest in like manner for the benefit of Lord Pulteney. An account was directed of what was due at the testator's death upon any of the said stocks, or funds, and securi- ties, and the same were to be placed out at interest in the name of Lord Bath, in trust for Lord Pulteney, for his life, and afterwards subject to the contingencies in the CASES IN CHANCERY. 325 will ; and that the interest and profits which had accrued 1705. or should accrue due on any such securities during the Gabdbn minority of Lord Pulteney, should, from time to time, v. be placed out in like manner as before directed, touching Pultbnby. the surplus dividend accrued due since the deatMjtf the ^ annuitant dying first; and Lord Pulteney was to be at Earl of Bath* liberty to apply to the court for payment or assignment of what he should be entitled unto when he came to the age of twenty-one ; and after his death, or any other per- son who might be entitled according to the contingencies in the testator's will, were to be at liberty to apply to the court as they should be advised. Further directions and subsequent cost were reserved. Upon the 1st of February, VJ5T, Lord Pulteney agreed to sell to Lord Egremont his right in reversion, or rather expectancy, after the death of the Earl of Bath, in two pieces of ground in Piccadilly (on one of which Egremont-' House is since built, and which pieces of ground were then let for a term of years on a building lease), for i?3000 ; and made an assignment of £Vj4tJ 6s. South Sea stock, and £46*J4 5«. Old South Sea annuities, to Lord Egre- mont, as a security for repayment of the money in case he should die before Lord Bath, or should not after Lord Bath's death have it in his power, and should not make Lord Egremont a good title. Lord Pulteney afterwards borrowed money of Mr. Drummond on security of the stocks devised by Mr. Pulteney. Lord Pulteney died without issue on 12th of February, 1763 ; plaintiff took out administration with his will an- nexed as a creditor. After his death Lord Bath paid off Drummond, and took an assignment of his security in the name of Mr. Dickenson. This was a bill to have the stocks transferred to the plaintiff, after paying what was due to Lord Egremont* representatives, and to Lord Bath. Lord Bath being since dead, the suit was revived 326 CASES IN CHANCERY. 1766* against General PuUeney, his representative. The de- Gabden fendants, *ho were next of kin to Thomas PuUeney, in- v. sisted that Lord Putteney was entitled under the will to Pulteney. ^j C gtockg f or hjg uf e on iy with remainder to his younger v# childifc : and that as he died without leaving issue, the Earl of Bath, next of kin of this testator were entitled. The cause having come on to be heard, The Lord Chancellor said, that the decree having ' directed that the money due and in arrear at the testator's death, upon any of the stocks or funds, should be placed out in the name of Lord Bath, in trust for Lord PuUeney for his life, and afterwards subject to the contingencies in the will, had precluded the parties from entering into the question. The cause was thereupon ordered to stand over, with liberty to petition for a rehearing of the original cause. Both causes came on this day. Mr. Yorke and Mr. Hoskins, for the plaintiffs, con- tended that Lord PuUeney was entitled to the whole fund, subject to open and let in his younger children to share with him. Mr. de Grey and Mr. Wedderbume for the next of kin were stopped by the court. The Lord Chancellor. I think it is extremely clear that Lord PuUeney was intended to take only an estate for life, with remainder to his younger sons. The latter words which give the whole to a younger son in case there shall be but one, cannot have effect by any other construction. The interest given to the sons is a tenancy in common, and there cannot be a limitation on a tenancy in common. Lord Hardwicke, on hearing the original cause, was clearly of that opinion ; otherwise the direction for payment of the interest to CASES IN CHANCERY. 327 Lord Ptdteney at twenty-one would have been wrong, 1765* for he might have had children before twenty-one. I Gabden consider the interest of Lord Pulteney and his younger v. sons as distinct, and that the words on a former day, moved that the injunction might be continued to the hearing, and it being a new question, and of consequence, the motion stood over; and the Lord Chancellor was to have copies of precedents delivered to him on both sides. It now came on again. Mr. Yorke, for the plaintiff, argued, that the author or his assignee had a common law right of property, and stated CASES IN CHANCERY. 1766. OSBOENS * Donaldson. Millar v. Donaldson. the definition of property as laid down in Setden's " Mare Clausum", and Grotius. In the Duke of Queenebernf* case («), and in Mr. Forrester^ case (6) relative to his reports, injunctions were granted before the books were published: he also cited the case of Tonson v. Walker (c). The Lord Chancellor observed, that it was the only case which came near the present, but there the injunc- tion was continued, as the printing Milton with notes might be considered as a new work. The Lord Chancellor, without hearing any other counsel, dissolved the injunction. He said his reasons were, that it was a new question (none of the cases being precedents in point, being orders made before the expira- tion of the fourteen years given by the statute). That it was a point of so much difficulty and consequence, that he should not determine it at the hearing, but should send it to law for the opinion of the judges (d). That it would therefore only serve to put the parties to expense, and protract the determination if he should countenance the injunction, and could answer no good end. He de- sired to be understood as giving no opinion on the sub- ject, but observed that it might be dangerous to deter- mine that the author has a perpetual property in his books, for such a property would give him not only a right to publish, but to suppress too. (a) Vide post. Dnke of (d) In consequence of this Queensberry v. Shebbeare, 329. (6) Forrester v. Waller, 13 June, 1741. (c) Cit. 4 Burr. 232& opinion, the question was af- terwards brought forward in the shape of a special verdict, as it appears in 4 Burrow. CASES IN CHANCERY. 339 DUKE OF QUEENSBERRY v. SHEBBEARE. sist July, 1758. (Reg. Lib. a. 1757. fol. 477.) The Attorney-General^ the Solicitor-General, and Injunction to Mr. Hoskin8 9 now shewed cause against dissolving an in- p^ndm? ofan junction obtained on a former day by the plaintiffs, who unpublished were the representatives of Edward, Earl of Clarendon, of which had to restrain the defendants from printing, publishing, or been by there- disposing of Lord Clarendon's History of the Reign of the author given Charles the Second, from the Restoration to the yea* to *penon under . J whom defendant 1667- The bill stated that Henry, late Earl or Claren- claimed, but not don, was, at his death, possessed of a MS. copy of the J^ n ^aUnT*" History of the Reign of Charles the Second to the year should publish it 1667, in the handwriting of Edward, Earl of Clarendon, to the sole property whereof the plaintiff, the Duke, as administrator to him, became entitled (a). The defendant Shebbeare, by his answer, stated, that the defendant Francis Gwynne had informed him that the said Henry, Earl of Clarendon, so long since as thirty-three years, delivered to his the said defendant's, Gwynne\ late father, to whom he was administrator, the original MS. of the history, that he might take a copy thereof, and make use of the same as he should think fit, of which a copy was taken. He admitted the agreement with Gtvynne, and insisted upon his right. Mr. Sewell, Mr. WUbraham, and Mr. Green, for the defendant Shebbeare. The Lord Keeper continued the injunction to the (a) One original had been destroyed in a fire at Petersham, 4 Burr. 23OT. 330 CASES IN CHANCERY. 1758. Duke of Queens- berry v. Shbbbbabb, hearing. He said, that it was not to be presumed that Lord Clarendon, when he gave a copy of his work to Mr. Gwynne, intended that he should have the profit of multiplying it in print ; that Mr. Gwynne might make every use of it, except that. Dr. Shebbeare afterwards recovered before Lord Mane- field a large sum against Mr. Gwynne, for having repre- sented that he had a right to print. 4 Burr. 2331, 2398. This case established what was admitted in the late case of Southey v. Sherwood, 2 Meriv. 435, that an author has a property in an unpub- lished work independent of the statute. Vide alao Lord and Lady Perceval v. Phippt, 2 V. &. B. 19. Gee v. Prilch- ard, 2 Srva. 402, and the cases there eited. Morris r. Kelly, 1J.&W.481. 25th June, 2d July, 1765. Power of altera- tion of estates tail as they were to come in esse into tenancies for life : held to be Void. HEATH v. HEATH. {Reg. Lib. a. 1764. fol. 499.) Bailey Heath by his will bearing date the 21st of August, 1750, devised all his manors, &c. at Stanstead in the county of Essew (subject to certain annuities, &&)* to his sons respectively for life, successively with remain- der to the first and other sons of such sons successively in tail male, with divers remainders over; and he thereby declared that notwithstanding he had before limited the succession of his estate to his several sons according to their seniority, yet it was his will, and he thereby directed that it should be lawful for each of them as they should Vide the Duke of Marlborough v. Earl of Godolphin, ante* Vol. I. 404, CASES IN CHANCERY. 331 be respectively seised in possession, by will duly executed, 1765* to alter and change the course of succession aforesaid, h^ath and on failure of issue of his own body, to appoint the v. next immediate remainder or succession of the premises Heath. to any other of the testator's sons, without regard to se- niority, and that such son so appointed should take the next immediate estate for life, with remainder over to support contingent uses, and to his first and other sons in tail male, as thereinbefore limited to testator's eldest son, and his first and other sons. And the testator di- rected that every of his sons so to be appointed should when in actual possession of the premises, have the same power of appointing by his will the succession or next remainder, in default of issue male of his own body, to any other of testator's sons for life, and to his issue male, in manner aforesaid, so long as the testator should have more than one son living. Upon a bill brought to carry the trusts of the will into execution, The Lord Chancellor directed that the trusts of the will and codicils should be performed and carried into execution, except so far as they relate to the alteration of estates tail into tenancies for life, which is void by law. VOL. II. 832 CASES IN CHANCERY. 6th H63. July HEWETT v. HEWETT. 8th July, 1765. M S. C {Reg, Lib. a. 1764. foL 481.) Atnb. 508. ^ • J > Power contained Sir Thomas Hewett, by his will, dated the 10th devisees for life, °f February, 1725, devised inter alia certain estates, in when in posses- default of issue of his body, to Sir Hardolph Wasteney, sion, to cut down timber as four Thomas Hwtne % Francis Pole, and John Tooker 9 Esqrs. trustees, or the gn ^ t ]j e j r j^jjg f or fa uses therein mentioned, vix. to survivors or sur- 7 vivor of them the use of Sir Andrew Thornhaugh for life ; remainder allow of^or^di- *° ^°^ n Thornhaugh, his son, for life, with remainders to rect, all the four his first and other sons ; remainder to Hugh Howard and dead: held that J°hn Hewett the plaintiff, respectively for life, with re- the coujctwould mainders to their first and other sons successively, with by referring it to divers remainders over. Then followed this power, a master to see « And that the said Sir Andrew Thornhaugh and John what timber was fit to be cut Thornhaugh his son, and Hugh Howard and John fo^i r ° mtime Hewett, shall have power and liberty to cut down and fell such trees and wood growing upon the premises when they shall be in the actual possession of the same as the said Sir Hardolph Wasteney, Thomas Stone, Francis Pole, and John Tooker, or the survivors or survivor of them shall assign, allow of, or direct, by any writing under their hand." All the trustees being dead, the present bill was filed by the plaintiff for the opinion of the court, whether the power to cut timber remained, or was at an end. The Attorney-General, Mr. Taylor White, and Sir Anthony Abdy for the plaintiff. Two questions arise upon the present case ; 1st. Whe- ther any interest in the timber was given by the tes- tator to the tenants for life ; and 2dly. If so, whether to time. CASES IN CHANCERY. 338 this court can, under the present circumstances, inter- pose in order to regulate the enjoyment of that right The first point was settled in Lewis Bowles's case, where it was decided that without impeachment of waste was not merely an exemption from suit, but an interest ac- tually vested in the tenant for life, he being thereby en- titled to the property in the timber when cut down. The present is a gift and legacy of such trees as the trustees should appoint, without any personal discretion vested in them, and as such, any other set of trustees, or this court, if necessary, may be substituted to act in their room. So in the case of a will ; acts to be done by executors with- out any personal confidence reposed in them, may be done by an administrator, as a bequest of such a horse as the executor may choose, &c. So also in the common case of a bequest of maintenance, according to the dis- cretion of trustees, the court, if necessary, refers it to a master. Mr. Sewell and Mr. WUles for the defendants. The construction contended for by the plaintiff would be making a new will. The liberty of cutting down trees is not a liberty of cutting down generally, but of cutting conformably to a particular description pointed out in the will: which description, as it cannot be complied with, the liberty is gone. The power given to the trustees is a naked power, which, if it cannot be exactly complied with, is at an end. The books are full of instances of this nature. In Franklin's case, Moor, 62, pi. 172, tes- tator devised that /. /. and /. K. should sell his lands by the advice of the parson of D. : before the sale, the parson died : held, the trustees could not sell. So in Dalison's Reports, 45, pi. 36. Testator made J., his wife, and /. his executors ; he devised his lands to his wife for life; remainder to his daughter and her issue ; and if she died without issue, that executors should sell with the consent z2 1765. Hewbtt Hewxtt. ♦ 334 CASES IN CHANCERY. 1765. Hbwbtt V. Hkwbtt. of C. The daughter died without issue, and then C. held that the executors could not sell. There are a great many other cases of the same nature. Lee's case, 1 Leon. 285, pi. 386. Butler v. Bray, Dyer, 189. Hutton v. Simpson, 2 Vera. 722. Peyton v. Bury, 2 P. W. 626. If, indeed, the present were a case of timber decaying on the premises, the court would interpose, as it has often been known to do for the benefit of the tenant for life. But there is nothing of that sort pretended. It is a mere question at law. The Lord Chancellor observed, that this was a new case, and might be of great importance to the parties, and as it might be a leading case, he did not mean to give a present judgment. 8th jfflv, 1765. The Lord Chancellor. The question is, whether the plaintiff can and ought, under the protection of the court, to enjoy any benefit in felling the timber, the four trustees being dead, when, as I must now suppose, the timber is mature and fit to be cut. To divide that question for consideration, it is 1st Whether the testator intended he should have benefit from the timber, though the trustees, who, during their life, or that of the survivor were to assign, allow, or direct by writing under their hand, are dead. And 2dly. If so, whether this court ought to interpose, or leave the plaintiff to do as by law he can. The testator, by the limitations in his will, made the plaintiff tenant for life barely, which would have given him an interest in the timber for botes. That he in- tended more is certain, and it seems as certain that the trustees w^re interposed as supervisors only, to prevent destruction in the tenants for life to the inheritance. It CASES IN CHANCERY. 335 is absurd to suppose that the testator meant his trustees should have an arbitrary volition, whether the several tenants for life should have any benefit in the fall of tim- ber. If a bill had been brought against the trustees to assign, allow, or direct timber mature and fit to be cut, would it have been an answer, "we do not think fit to allow it, stat pro ratione voluntas f" I think the court would not have been satisfied with such an answer. The power is, "And that the said Sir Andrew Thorn* haugh, and John Thornhaugh his son, and Hugh How- ard and John Hewett, shall have power and liberty to cut down and fell such trees and wood, growing upon the premises, when they shall be in the actual possession of the same, as the said Sir Hardolph Wasteney, Thomas Stone, Francis Pole, and John Tooker, or the survivors or survivor of them shall assign, allow of, or direct by any writing under their hand.'" The testator certainly intended that the trust should be co-extensive with the four estates for life, and as both depended on the contin- gencies for life, the will, to have effectuated that inten- tion, should have added the heirs of the survivor. The omission of that was a mistake, and as such, I think, ought to be rectified in this court There seems to be a similar mistake in a subsequent clause ; the testator has given his wife the use of his ca- pital messuage, &c. and an annuity to be paid by his trustees, with a proviso, that if his wife neglect to keep in repair his capital messuage, or park stocked as di- rected, then the trustees, the survivors or survivor of them, should retain the said annuity for the same pur- poses. This, too, is confined to the trustees' survivor personally. Yet, if the wife was alive now the trustees are dead, the court would direct the repairs to be done out of the annuity ; for it is the duty of this court, and of all courts, to give all devises, as far as their respective 1765. Hewett v. Hewett. 896 CASES IN CHANCERY. 17«. Hbwbtt V. Hbwbtt. jurisdiction admit, their full and specific execution. The office of the trustees is not confined to any personal qua- lification but such as is general, and may be substituted, viz. to see what is fit and proper to be cut Mr. Sewell observed, that it was not a power to cut down generally, but under a description; but that is taking it too narrowly. It is rather a power vested to fell, upon condition the trustees allow of the timber pro- posed to be felled; and when that condition becomes im- possible by the act of God, it would be either pure at law, which was certainly not the intent; or the power would be gone, while the estate, to which it was annexed, remained, which I think could not possibly be the intent either. As the law, from the nature of its jurisdiction, must take this in one of these senses or the other, and both seem against the testator's intent, I think it impro- per to leave it to law, as Mr. Sewell contended for. Mr. Sewell admitted, that if the trees were decayed, it might be done by the court. • But for me to suppose the tes- tator meant that the trees should stand till they were de- cayed, and then be cut for the tenant for life, is to sup* pose him to mean an injury to his devisee and the public, which is against reason. I am of opinion that I ought to preserve the power and the check, and therefore let it be referred to see what timber and wood is mature and fit to be cut, and let the same from time to time be felled for the benefit of the respective tenants for life, with the approbation of the master (a). (a) Vide Inrvood v. Twyne, ante, 148, and the cases cited in the note to it. CASES IN CHANCERY. 337 SCRIVEN v. TAPLEY. i5thDec ms. 8th July, 1765. S. C. Et i contra. Amb. 509. Serjt.At0,MSS. {Reg. Lib. b. 1764. fol. 433.) By indentures of lease and release, bearing date the The eouity of 8th and 9th of August, 1693, Thomas Suwpitch, in con- huSSfcSake sideration of the sum of <£640, the portion of Elizabeth a settlement out his intended wife, settled lands on himself for life, re- ^ tot | doe/not mainder to her for her jointure, &c. and created a term survive to the j* *tru\ ^ !• nr»/wx • o children, but is in consideration of the said intended marriage, and I^haV^ 'd 6 °^ natura l l° ve an< * affection, covenanted to convey cer- wife for their tain premises in the county of Kent, in trust, for and to of AeTurJvorf the use of ^ ^ W M™> Cordwell, and Mary his wife, and after the for their lives, and the life of the survivor ; and after the vivor to the use" decease °f the said William Cordwell, and Mary his wife, of the heirs of the and the longest liver, to the use of the heirs of the body band on the wife, °^ && said William Cordwell on the said Mary begotten, remainder over ; m fl their heirs for ever ; and for want of such issue, to the and a settlement was made after use of such persons and for such estates as the said Robert Martin should by deed or will appoint ; and in default of appointment, to the use of the right heirs of the said Robert Martin. the marriage re- citing the articles, and said to be made in pursu- ance of the mar- riage; upon a bill brought by a son of the mar- The marriage having taken place, by indenture of lease and release, bearing date the 16th and l^Jth. of Sep- t ember, 1728, reciting the said articles, and that the said riage, the court refused to decree the articles to be carried into execution by a strict settlement against a purchaser for a valuable consideration, who had notice of them ; on the ground of the articles not being produced by which alone the court could alter the settlement. CASES IN CHANCERY. O/L/L settlement was made in consideration of the said marriage, and in pursuance and performance of die said articles, the said Robert Martin conveyed the said estates to the said William Cordwell and Mary his wife, for their lives, and the life of the longest liver of them ; and after their death, to the use of the heirs of the body of the said William Cordwell on Mary his wife, and their heirs for ever, with remainder as the said Robert Martin should appoint; and in default of appointment to the right heirs of the said Robert Martin. In Michaelmas term, 1728* Cordwell and his wife levied a fine of the said premises to such uses as they should jointly appoint, and in default of appointment, to the uses of the settlement ; and afterwards made several mortgages of the premises which were assigned to, or in trust, for the defendant, Thomas Mackrill. By articles of agreement, bearing date the 12th of Au- gust, 1732, reciting the said marriage articles and settle- ment, the said William Cordwell and Mary his wife, in consideration of the sum of £^500, to be paid to them by the said Thomas Mackrill, agreed to convey the said premises to him in fee. Cordwell having afterwards he- come a bankrupt, Kemp, his assignee, entered into arti- cles, bearing date the 6th of May, 1746, for carrying the former articles into execution. A bill having been brought by Kemp and Cordwell against Mackrill to carry the two agreements into exe? cution, and a cross bill by Mackrill to have them can- celled, and to have the estate sold, and to be paid his mortgage money, and the causes coming on to be heard, a decree was made on the 18th of July, 1*J48, that the articles should be performed. This was a bill by William Cordwell, an infant, the son of the said William Cordwell, who was now deceased; and it prayed that the marriage articles of the 26th of 1765. COBDWSLL V. Mackrill. [345] 345 CASES IN CHANCERY. 1765. Coed well v. Mackrill. {346] February, 1726? might be carried into execution by » strict settlement. The Attorney-General and Mr. Willes for the plaintiff. It is by no means a new thing* to come into this court to have a settlement rectified by the articles. Trevor v. Trevor, 1 Eq. Ab. 387- Honor v. Honor, 1 P. W. 123. West v. Errissey, 2 P. W. 340. The children being purchasers, this court expounds the articles technically, in order to make a settlement ; and in the present case is more peculiarly called upon to do so from the additional words of limitation. The defendant, Mackrill, cannot be protected as a purchaser, being affected by notice of the articles and settlement from the recital in the articles of agreement. The Solicitor-General and Mr. Wedderburne for the defendant. This doctrine was never heard of in this court till the year 1720, and was then admitted with very great caution, and never been extended beyond the parties themselves. In Warwick v. Warwick (a), Lord Hardwicke said that no case had gone so far as to relieve against purchasers ; but it does not appear that such articles ever existed as this court could act upon: it is necessary that they should be proved to have existed, for which purpose the mere recital is insufficient. The words are, " made or men- tioned to be made.* 11 How would these words operate by estoppel ? And this recital is by no means notice to a purchaser. The Lord Chancellor. The general question is of great extent and consequence, viz. Whether this court will rectify a settlement by re- ducing an estate tail into an estate for life against a pur- fa) 3 Atk. 293. CASES IN CHANCERY. 346 chaser, the settlement having been unimpeached by the plaintiff's father, who, if it had been rectified, would have had an absolute power over the plaintiff's interest ? and I am of opinion that he is not entitled to the equity which he prays, and that the bill must be dismissed. First, because in this case neither the articles are pro- duced, nor a copy of them proved, by which alone I can rectify the settlement. Suppose there are no articles at all, it then comes to the case alluded to in Collins v. Plummet, 1 P. W. 106. Nothing appears from this re- cital that the parties intended a settlement different from the one which they have made : the recital is partial, and words may be omitted "which confirm such intent The true foundation of the jurisdiction of courts of equity in such cases as Trevor v. Trevor, and West v. Errissey, arose out of the limitation by remainder out of the estate for life, which plainly demonstrated that the children were intended to take as purchasers ; and therefore where the settlement was made pursuant to, and in performance of, the articles, that the intent continued the same ; and the settlement having been mistaken, w$is and ought to have been at a proper time, and under proper circum- stances, rectified. In these cases, therefore, there was no conjecture ; but here it is impossible for me to say that the parties to the articles did not intend the son to have an estate tail (a). And I think that if I were to decree a strict settlement against a purchaser for a valu- able consideration, it would make a great confusion in property, and uncertainty in passing titles. Secondly, as to the notice. The notice is the recital of the articles, which, if they had been just as they are re- (a) As to the general doc- of the articles, vide Fearne's C. R. 90, et seq, where the present case is cited. trine upon the subject of rectifying settlements, in order to effectuate the intent VOL. II. 1766. CoRDWELL V. Mackrill. [347] A A 347 CASES IN CHANCERY. 1766. CORDWELL V. Mackbill. A purchaser is notboundtotake notice of an equity arising out of the mere construction of words which are uncertain, and the meaning of which often de- pends upon their locality. [ # 348 ] cited, shew no intent at variance with the Settlement, and consequently no ground of relief. Besides, the argument supposes that the subject must know equity as well as law ; a position which I find no case to warrant, and I will not be the first to make one. A man must, indeed, take notice of a deed on which an equity, supported by precedents, the justice of which every one acknowledges, arises, as in the case of prior incumbrances ; but not the mere construction of words, which are uncertain in * them- selves, and the meaning of which often depends upon their locality (a). But I must answer this supposition by another ; and I must suppose that the counsel at person who advised upon the title, saw from such entire articles that it was not one of those cases in which this court would relieve. It would be the most dangerous thing in the world to determine otherwise, unless the whole of the instrument were before me; for the true construction depends on words, and other parts of the deed may be material to find out the true meaning (6). I cannot see any reason to lay it down as an universal rule, that in all cases of articles the husband is to be only tenant for life. Bill dismissed. (a) The doctrine upon which this part of the case was decided, viz. that there may be such a doubtful equity that a purchaser is not to be taken to know what wilLbe the decision, was recognized and approved of by Sir W. Grant, in Parker v. Brooke, 9 Ves. 588. (6) As to constructive no- tice in general, vide Howortk v. Deem, ante, Vol. I. p. 351. and the cases cited in the note ib. 356. CASES IN CHANCERY. 348 COUNTESS GOWER v. EARL GOWER. [ »349 ] {Reg. Lib. a. 1766. fol. 163.) 19th Feb. 1766. John, Earl of Gower, by his will, dated the 22d of Biddings ojxmed December ', 17^9, (amongst other things) gave to his wife; ation of the # the defendant, Countess Dowager Gower, an annuity of Master's report JP1000 in lieu of dower and to be chargeable on all the able advance, lands in his will mentioned, of which the manor and estate there having been . . a mistake made of Grindon was part He then devised to trustees and in a particular their heirs his manors, lands and hereditaments charged ^^"S* 1^. with the said annuity, and subject also to the payment of and^bof the several sums of money therein given to his daughter, fi^^l^fjjort Elizabeth, Countess Waldegrave, in trust to sell the having been same and to apply the money first for payment of debts family,andknow- and incumbrances affecting the estates, and all the just fog more than he debts he should owe at his death, and which his personal estate would not reach to pay ; then to raise and pay £ 16,000 for the portions of his younger children, and to invest the surplus money (if any) in the purchase of lands, to be settled on his sons and brothers successively in such manner, and with such remainders over as therein men- tioned; and he appointed Mary, Countess Dowager Gower, Henry Pelham, Baptist Leveson Gower, and Robert Barber, executors. On the 24th of December, 1754, the testator died, leaving the plaintiff, the countess, his widow, and the de- fendant, Earl Gower, his eldest son and heir at law, and the defendant, John Leveson Gower, his only younger child, who thereupon became entitled to the i?16,000 di- rected to be raised by his father's~will. a a2 340 CASES IN CHANCEBY. 1166. Countess Goweb v. Earl Gowbr. [ 350] w In October a bill was filed for the purpose of carrying the trusts of this will into execution ; and the cause coming on on the 14th of June, 1763> it was ordered that the will should be established, and the trusts per- formed ; and the usual accounts were directed. And it was ordered, that in case the personal estate should not be sufficient, that the trust estate remaining unsold, or so much thereof as should be sufficient to satisfy the debts, &c. remaining unpaid, should be sold to the best purchaser, to be allowed of by the Master, and the mo- ney applied for that purpose ; and it being admitted that the defendant Earl Gower, had, out of his own money, paid several of the testator's debts, it was ordered that lie should be admitted to stand in the place of such credit* ors so paid off, and receive a satisfaction for the same out of the testator's estate. In pursuance of this decree the Master proceeded td take the account directed ; and it appearing necessary to sell the trust estates, the Master proceeded to a sale thereof, and (amongst others) of the manor of Grindon, in the county of Stafford, and of several farms, lands and cottages within the manor ; and for the purposes of the sale, a particular of the estate was left with the Master, stating the names of the several tenants, and the annual rents paid by each of them, by which it appeared that they amounted in the whole to i?632 Ss. *]d. per annum. Under this particular the estate was put up to sale before the Master, on the 17th of January, VJ66, who, by his report dated that day, certified that the plaintiff, John Davenport, was the best bidder for it at .£27,500. But on the 19th of February following, and before the Master's report was confirmed, an order was made (on the application of one Thomas Bell, who offered to give dfiB8,300 for the estates, being <£800 more), to refer it back to the Master to allow of a better purchaser ; and CASES IN CHANCERY. 35» the person who should be allowed the best bidder by the Master's next report, was to deposit £1500 in the Bank, subject to the order of the court. On the 22d of April, 1765, the estate was again put up to sale before the Master, when Thomas Mytton, on behalf of the defendant Ryder, having bid £ 28,500 the Master, by his report dated that day, certified Mr. Mytton, on behalf of Mr. Ryder, to be the best bidder at ,£28,500. This report was confirmed, unless cause by an order, dated the 13th of April, 1765; and no cause being shewn, the order was on the 13th of May following made abso- lute ; and on the 13th of August, 1?65, Mr. Ryder, the purchaser, paid the £ 1500 into the Bank as a deposit, pursuant to the directions of the order of the 19th of February. After the last-mentioned order was made, the parties interested in the estates discovered that their agents were mistaken as to the value of it, by having relied upon an old survey, wherein they had been valued at the above- mentioned sum of i?632 8s. *]d. per annum ; but that they were worth, to be let, double the rent mentioned in that survey from whence the particular was prepared. An offer of i?2000 more for the estate than Mr. Ryder had given having been made by Mr. Beaumont, this was a motion on the part of Earl Gower and Lord Trentham that the <£1500 paid into the Bank by Mr. Ryder as a deposit might be paid back to him, with interest at £4s per cent, from the time the said was paid, and that it might be referred back to the Master to approve of a better purchaser. In support of the application several affidavits were read. By the affidavit of William Bill, it appeared that the particular left with the Master, before whom the estate was put up to be sold, was made from a map or particular 1766. Countess Gower v. Earl Goweb. [351 J 351 CASES IN CHANCERY. 1766. Countess GOWBR Earl Gowbb. [ 362 ] taken by the order cSJohn, late Earl of Gower, upward* of thirty years ago, and that he delivered the original map to the defendant, John Davenport. And by the affidavit , of the others, it appeared that they were well acquainted with the several farms, lands, grounds, mill, and premises at Grindon, advertised to be sold under the decree, in the several holdings of Simon Fletcher, and forty-five other persons, all named in the affidavit and in the par- ticular left with the Master ; as also with the several cottages in the parish of Grindon, with the manor or lordship of Grindon, in the holding of six persons in the affidavit named ; and that there were several cottages or encroachments, part of the manor and estate, not men- tioned or taken notice of in the particular of sale left with the Master, and which were in the holding of Richard Amables, and twenty other persons named in the affidavit, which last-mentioned cottages or encroachments (twenty- one in number) were not taken notice of in the particular for sale ; and that they' had been well informed and be- lieved one part of the estate was then let, or agreed to be let, by the last bidders for the estate, for upwards of £1250 per ann. net rent ; and the other part, not then set to their knowledge, was, to the best of their judgment and belief, worth to be let by the year at a net sum of i?300 and upwards. On behalf of the bidders affidavits were made by three of the defendants, Thomas Mytton, John Davenport, and William ffambleton, -and by one William Kerkland Mytton and Hambleton said they were purchasers each of a fourth part of the manor and estate of Grindon ; and that the particular of the estate left with the Master, as they understood and believed, comprehended the whole estate of John, late Earl Gower \ at Grindon, except some cottages or encroachments, which, or the greatest part, they believed Were, in the course of last summer, levelled CASES IN CHANCERY. 352 or thrown open by certain freeholders within the manor. That since the report of the sale was made absolute, and the deposit of «£1500 paid, they had been at very great trouble and expense. Mytton said, that the abstract of the title to the estate was not delivered till the 3d of December last; and the objections his counsel made thereto were not removed till lately. That being told in September last by John Davenport, who was also con- cerned in the purchase, that he had been informed by Thomas Gilbert, esquire, who was principally concerned for Earl Gower, that the title of the Grindon estate was unexceptionable, and the purchase money much wanted, he set about raising his share ; and for that purpose called up from interest a very large sum, and also borrowed on account of the purchase, and had for some time paid interest for a considerable sum of money, which monies he had ready to complete his purchase. Hambleton said he had engaged his share of the purchase money, and was ready to pay the same, and should be a great sufferer by paying interest if the purchase was not soon com- pleted. And both Mytton and Hambleton said, that since the deposit was made, they, and the other parties concerned with them in the purchase, not knowing there* was any survey of the estate, procured, at a considerable expense, proper people to survey, measure and plan the whole of the estate comprised in the particular ; and ve- rily believed the quantity of land, exclusive of commons, naked rocks, fences, roads, encroachments on the waste liable to be thrown open by the freeholders, and rivers, did not amount to 1800 acres. Hambleton said, that the survey taken by the directions of the late Earl Gower com- prehended every piece, field and close belonging to the earl's estate at Grindon, except the encroachments on the waste made since that survey was taken ; and that since the estate was contracted for, one, if not two leases of 1766. Countess Cower v. Earl Gowkr. [ 353 J 363 CASES IN CHANCEHY. 1768* Countess Gower Earl Goweb. [854] considerable value, were determined by the death of tenants who held for their lives. That the tenants having received notice from the defendant, Baptist Leveson Gower> to quit their respective farms, and no person on behalf of the Gower family offering to let the estate, or any part thereof; and the rest of the purchasers iur tending to pay their purchase money, and move to be lei into possession from Lady-day next, they did, about Christmas last, make conditional agreements for part of the estate, to prevent the same from being untenanted : that the survey of the estate had not been taken, nor had he or the rest of the purchasers concerned themselves in the management of the estate, till possession had been ob- tained from the court, had they not met with the coun- tenance and assistance of the Gower family. Davenport by his affidavit said, that Ryder w as & trustee for him and Mytton, HomMeton, and Taylor ; and that some time after the report was made absolute, and the da* posit made, he was well informed that several of the te- nants publicly declared they would continue on their re- spective farms one year after the purchasers were let into possession; and were determined to plough a large quantity of the lands in their respective holdings, which would have injured them very much, as they were lands more pro- perly adapted to pasturage and grazing ; that thereupon he applied to Thomas Gilbert, principal agent for Earl Gower \ for his advice and assistance how to act, who pro- mised to do all in his power to assist him in quieting the tenants, and forwarding him in the purchase; and for that purpose particular notices to every tenant to quit on Lady-day next were signed by the defendant, Baptist Leveson Gower, under the direction of Air. Gilbert. The Solicitor-General, Mr. Skynner, and Mr. Ma- docks, in support of the motion, contended, that it waa the common practice of the court to open biddings after. CASES IN CHANCERY. 354 the report had been confirmed, where sufficient grounds were laid for its interposition : that the mistake of the agents in the present case was a sufficient inducement. They cited Price v. Mowon (a), June, 1754 ; Hooper v, Jewell, IT 58, at the Soils, and mentioned a case on the sale of Lord Yarmouth's estate, where the biddings were opened after the reports were, confirmed, upon an advance of price only. Mr. Willes and Mr. Perryn for the purchasers. It is a general rule that scarcely admits of exception, that when persons are reported the best purchasers, they are not to be discharged unless there appear to have been circumstances of fraud attending the sale, as in Price v. Moxotu These defendants are fair, honest, and open purchasers, who have relied upon the practice of the court. The particular under which the estate was sold was made with great care and attention, under the direc- tion of Lord Goner's agents. If in the present case there had been an agreement signed by the parties, a court of equity would have compelled a specific perform- ance, though a greater sum might afterwards be obtained for the estate. The case of an agreement is not stronger than that of a report absolutely confirmed. The pay- ment to us of interest at £4 per cent* &c. will be no satis- faction or reparation for the loss and disappointment which will be sustained if the purchase be discharged. The credit of future sales to be made under the authority of this court is greatly involved in the present question. 1766. Countess Gowsb v. Earl Gown, [ 365 ] (a) In this case the pur- chaser was partner with the solicitor in the cause, and from some particular know- ledge he had, to the benefit of which the other parties were entitled, the sale was .set aside ; besides the party who came to open the biddings was misinformed as to the time of confirming the report. 2 Ves. jun. 54. 365 CABES IN CHANCERY. 1706. Countess Gower EarlGoWBB. [356] If biddings are to be frequently opened, persons will be discouraged from buying at all under decrees which would be productive of great mischief to creditors, on whose behalf these sales are usually directed. The Attorney-General and Sir Anthony Abdy for Lady Gower. Mr. HoMns for Mr. Beaumont. The Lord Chancellor said, that in all cases of this* sort, a mere advance of price was not alone sufficient to open the biddings. And that the court would be very careful in exercising this jurisdiction upon mere circum- stances of neglect or surprise. That a considerable in- crease of price was a strong argument when coupled with other circumstances ; what he principally relied on, how- ever, was the manner in which the survey had been made, upon which the particular of the estate was founded. He considered that the situation in which the defendant Da- venport stood, with respect to the family, was such as to throw considerable suspicion upon the transaction ; that upon the whole, though none of the circumstances were sufficient of themselves to annul the transaction, yet he thought that he should be exercising a wise discretion in opening the biddings. It was accordingly ordered that the £1500, paid by Mr. Ryder j should be repaid him with interest at £4 per cent, together with all costs, charges, and expenses that he had been put to ; and that upon payment thereof, he should be discharged from his purchase : that Lord Gower should be a creditor on the estate for what he should pay for opening the bidding, and the counsel for Mr. Beau- mont bidding i?2000 more for the estate, it was referred back to the Master to approve a proper purchaser, &c This order was afterwards affirmed in the House of CASES IN CHANCERY. 866 Lords, 8th May, 1766 (6 Bro. P. C. Ed. Tornt. 306.) After the biddings were opened, those who opened them bid again, and ultimately gave £ 38,000 ; after the se- cond sale £ 2000 more was offered by those who appealed from the former order ; which offer was strongly support- ed by the creditors. But Lord Camden, as it was sid^y an offer of more money, refused to open it again (2 Ves. jun. 54.) 1766. Upon the. determination in this case, Lord Thurlorv, in Prideaux v. Prideaux, 1 Bro. C. C. 287, and Scott v. *Nes- bit, 3 Bro. C C. 475, formed the role, that after the con- firmation of the report, unless there is some misconduct on the part of the individual who has the benefit of the con- firmation, the court will not open biddings upon negli- gence, surprise, or circum- stances of that kind. In Wat- son v. Birch, 4 Bro. C. C. J71, and 2 Ves. jun. 51, this cjoctrine was departed from by the Lords Commissioners, but the orders made on that occasion have been repeatedly disapproved of. Morice v. die Bishop of Durham, 11 Ves. 57. White v. Wilson, 14 Ves. 151. As to the opening of bid- dings before confirmation of the report, vide Watts v. Mar* tin, 4 Bro. C. C. 113. Upton v. Lord Ferrers, 4 Ves. 700. Chetham v. Grugeon, 5 Ves. 86. Tail y. Lord Northwick, ib. 655. Bigby v. Macna- mara,6 Ves. \YJ. Andrews y. Emerson, 7 Ves. 420. Brooks y. Snaith, 3 V. & B. 144. Exparte Partington, 1 B. and B. 209. Farlom v. Weildon, 4 Mad. 460 Garstone v. Edwards, 1 S. &&20. Brookfield v.Brad- ley, ib. 23. Vansittart v. Collier, 2 S. & S. 60S, by which the old rule of accept- ing an advance of 10L per cent, is abolished. That a person present at the sale shall be allowed to open, vide Barker v. Preston, 16 Ves. 140. ThornhiUv. Thornhill, 2J.&W. 347. Tyndale v. Warre, 1 Joe. 525, over- ruling M'Cullock v. Cotbach, 3 Mad. 314. Countess GfoWBB V. Earl Gowbb. [*357] 867 CASES IN CHANCERY. 3d & 4th Mardk, CHENEY v. HALL. 1766. Amb. 5*6? '** (.Reg. Lib. a. 1765. fol. 256.) Where a father Gerard Walker, by his marriage settlement, bearing- Ufe ^th D re- 0r ^^ *^ e ^^ and *6th November, 1706, conveyed all mainder to his big real estate in the county of Derby to .the use of him- on his marriage,' self for life ; remainder, as to part, to his wife for life, for by lease and re- j^ jointure ; remainder, as to the whole, to trustees for a lease, conveys .... his estate to trus- term of 500 years, for raising portions ; remainder to the tees in strict ; set- g r8t j^ t}j er 80D8 f the marriage, with remainders tlement ; and m . some time after- over. There was issue of the above marriage, Gerard y Wrfetner D m With ** eldest *>*> and four other <*&&*** making a mort- *In 1793? Gerard, the son, upon his marriage, conveyed estate and su™ 6 P art °^ the •**<* estate by indentures of lease and release,, fers a recovery bearing date the 20th and 21st of February, 1733, to mortgage : held, ^ use °f himself for life ; remainder to his intended wife that die recovery f or her life, remainder to the heirs of the body of the shall notwith- , . . , standing enure wife ; remainder to his dwn right heirs. SS o°f the mar- B ? indenture > bearing date the 11th of April, 1746, riage settlement, the father and son mortgaged the premises to Henry [ # 358 ] Peach for 1000 years to secure i?300, and in Easter term, 1746, suffered a common recovery, and declared the uses to the mortgage, and then to the father for life, with remainder to the son in fee. In 1749 Henry Peach purchased the reversion of Gerard, the son, and took a conveyance, bearing date the 25th of November, 1749, to himself in fee. In 1751 Gerard Walker, the son, died, leaving a widow and the defendant, Gerard Walker, his eldest son, and several other children. Afterwards Walker the fa- ther died in 1756, leaving a widow, who was still alive- CASES IN CHANCERY. 858 The term created under the settlement of 1706 for 1766. raising portions being still outstanding, the present bill c~*~ was brought by the plaintiffs, who claimed under Peach ». the purchaser, to be let into possession of the premises Hali* not in jointure to the father's widow ; and for an account of the rents and profits from the death of Gerard Walker, the father, upon paying the money due upon the por- tions. The defendants, the widow and son of Gerard Walker the younger, insisted by their answers that the settlement of 1733 was a bar to the relief prayed, so far as the estate comprised in that settlement was intended to be affected by it. The question was, whether the common recovery in 1746 should enure to the uses of the settlement of 1733. Mr. Uo8kins and Mr. Ambler, for the plaintiffs, took a distinction between the case where a tenant in tail con- veys to uses, which may take effect in his lifetime, and [ 359 1 where they cannot take effect till after his death. In the former case a common recovery, suffered afterwards, shall enure to the uses of the conveyance, though the common recovery is declared, at the time of suffering it, to be to other uses. But in the latter case it shall not, because the uses to take effect, after the death of the tenant in tail, are void in law. Machell v. Clerk, Com. Rep. 119. 2 Salk. 619. The Solicitor-General and Mr. Madocks for the de- fendants. The Lord Chancellor. I am clearly of opinion that the common recovery enured to the uses of the settlement of 1733, and I think the case of Machell v. Clerk is clearly distinguishable from the present. There the tenant in tail covenanted to stand seised to the use of himself for life, with remainder 369 CASES IN CHANCERY. 1766. Chbnby Hall. to his son in tail The covenant, as to the estate for lite to himself, is no avail; for he is in ofthe old estate; and the covenant to stand seised to uses, after his death, is void, it not being by way of remainder. But in this case there is a conveyance and transmutation of possession, and the remainders are not void. Bill, as against the defendants, the widow and son of Gerard Walker the younger, dismissed. Vide Goodright v. Mead, 186, & seq. 5 Cruise Dig. 486: Burr. 1 703. Moody v. Moody, 1 Prest. on Conv. 21 . Amb. 649. Sand, on Uses, [ 860] lit & 3d March, 1766. S.C. Amb. 538. /??/!# /'*. DIXON v. METCALFE. (Reg. Lib. a. 1765. fol. 161.) The incumbent of the mother- church has the right of nomi- nating to chapels of ease, and can only lose that right by agree- ment between patron, parson, and ordinary, and on a com- pensation made to him ; and It appeared by the bill, and the evidence which was read for the plaintiff, that in the parish of Leeds, in York, shire, which is very large and extensive, there are nine townships, inter alia, the township of Armley, and an- other distinct township called Wortley ; that there are also eight chapels of ease within the parish, one of which, called Armley Chapel, was built in the time ofthe usurp- ation, and was for some time used as a conventicle ; but that there was no certain account at whose expense, or therefore, where the exact time when it was built. The plaintiff, how- a chapel was erected and endowed by a grant of lands from the lord and freeholders of a manor, and the right of nomination was given by the archbishop in his deed of consecration to the inhabitants, and the vicar of the mother-church declared at the time that he had no right to nominate, and the inhabitants had repaired and nominated for 90 years, yet it was held, that the vicar was entitled to nominate. CASES IN CHANCERY. 360 ever, entered into general evidence, that it had been built 176& by the inhabitants of Armley and Wortley. dT^ By indenture, dated 6th of November, 1653, and made v . between Miles Stapleton, described as lord of the manor Mbtcalms. of Armley, and Mary hi» wife of the first part, and se- veral persons therein named and described to be inha- bitants and freeholders of the said manor of the second part, and certain trustees of the third part ; after reciting that the inhabitants within the township of Armley aforesaid, being far distant from the parish church of Leeds, and it being conceived requisite that a com- fortable maintenance should be raised and provided for the better encouragement of a godly minister of the gospel, to officiate at the chapel of Armley, but of the common and waste grounds within and belonging to the said manor then inclosed and to be inclosed for that pur- pose, the lord and freeholders, to the intent that the yearly sum of £2f] might be issuing forth out of the common and waste ground to the use of a minister [ 361 } there to officiate, and to his successors for ever, granted to the trustees and their heirs certain parcels of common therein mentioned, in trust, to employ the profits thereof to the use of the said chapel, and for payment of the an- nual sum of £&] to the minister officiating there from time to time. By another indenture, dated the 14th of October, 1657, and made between Miles Stapleton, described as lord of the manor. of Armley, and his wife of the first part, several persons therein named and described to be inhabitants and freeholders of the said manor of the second part, and certain trustees of the third part, the lord and freeholders of the manor granted unto the trus- tees the land whereon the chapel then stood, with a rood of land thereto adjoining, and a way for person* resorting to the chapel, to the intent that the chapel should fotf SCI CASES IN CHANCERY, 1786.' Dixon v. Mktoau-m. [3fl2] ever be used as a chapel, and as a place for the minister of Armley and his successors to officiate. And it was agreed that the seats and pews built, and to be built, should be employed for the maintenance of the minister, except two pews belonging to Miles Stapleton and Mary his wife, which should be free from paying to the minister, in regard they had given the land on which the chapel stood. In 1674s upon the petition of the inhabitants of Arm- ley and (Vortley, the Archbishop of York consecrated the chapel, and in the instrument of consecration took upon himself to grant the nomination of a minister to officiate there, to the inhabitants of Armley and Wbrtley, and re- served to himself and his successors the right of lapse. It appeared in evidence that the vicar of Leeds was pre- sent at the consecration by the archbishop, and declared, that he, as vicar, had no right to nominate a curate to the chapel. The inhabitants of Armley and Worttey> from the time of the consecration, always repaired the chapel at their own expense, and had elected the minister or curate who was to officiate there, as often as a vacancy had happened, which was four times since the consecra- tion, and the minister so elected had been constantly licensed and officiated. On the 25th of April, 1761, the chapel became vacant by the death of the last curate, and on the 4th of May following the inhabitants met, and elected the plaintiff, and soon afterwards Kershaw, the vicar of the mother- church of Leeds, nominated and appointed Metcalfe to be curate of the chapel. They were both presented to the archbishop, and each requested a licence to preach in the chapel, which he refused to grant till the right was determined. Upon this the plaintiff instituted a suit in the arch- bishop's court against the defendant Metcalfe, setting up CASES IN CHANCERY. 362 his right under the election ; but Metcalfe, having put in his answer, he abandoned it, and applied to the court of King* 8 Bench for a prohibition, which he obtained upon a suggestion of a prescriptive right in the inhabitants to elect a curate to the chapel: he afterwards abandoned that suit, and filed the present bill to have his right under the election established, and for an injunction to stay pro- ceedings in the spiritual court and at law. The defend- ants Metcalfe and Kershaw insisted by their answers upon the general right of the rector or vicar of the mother-church to nominate a minister to a chapel of ease, unless he is divested of it by a proper agreement entered into between the patron, parson, and ordinary ; and that no such agreement was entered into in the present case. The Attorney-General, Mr. Yorke, Mr. Wedderburne, Mr. Lee, and Mr. Perryn for the plaintiff. The inhabitants are entitled to the nomination for many reasons. 1st. They must be Considered as the founders and endowers of the chapel. The right of pre* sentation of patrons to advowsons arises upon founding and endowing the church. The same reason holds with respect to chapels of ease, and Dr. Kennett, in his Pa- rochial Antiquities, p. 589, observes, " at other times the lord of the manor did present a fit person to the appro* priators, who, without delay, were to give admission to the person so presented." 2dly. Under the instrument of consecration ; which, if it does not give them a right, is at least evidence of a right — Fanshaw v. Rother- ham (a) ; and this is confirmed by the declaration of the vicar of Leeds at the time of the consecration. 3dly. The inhabitants have been at the sole expense of keeping the chapel in repair. There has been no contribution from the parish at large, and therefore, as they have borne the 1766. Dixon v. Mbtoalpjb. [ 363 ] (a) Ante, Vol. L p. 376. VOL. II. B B 363 CASES IN CHANCERY. 1766. Dixon Mbtcalfb. [364] burthen, they ought to be allowed to retain the privilege* 4thly. The inhabitants are entitled to the nomination upon the usage. They have for ninety years elected a curate upon every vacancy. This is evidence of an ori- ginal right in the inhabitants, or, if not, yet it raises a presumption that an agreement was entered into between them and the patron and parson of the mother-church, and the ordinary, by which the inhabitants legally and duly acquired the right. A prohibition was granted in the court of King's Bench, which could only have been so upon a suggestion of prescription. The only remedy which the plaintiff has is in a court of equity ; he has none either in the ecclesiastical court or at law. The jurisdiction of the ecclesiastical court is defective : it cannot judge upon the circumstances of this case, which can only be determined in a temporal court ; nor has the plaintiff any remedy at law ; a quare impedit will not lie in case of an election or nomination by in- habitants. A court of equity only can judge upon all the circumstances of the case, and can direct a trial at law, if necessary, upon an issue adapted to the merits of the case. The case of Herbert v. the Dean and Chapter of Westminster, 1 P. W. ffi3, shews that a court of equity will determine upon this question. Mr. Ambler and Mr. Price, for the defendants, were stopped by the court. The Lord Chancellok. I shall dismiss this bill for several reasons. First, because the plaintiff has no legal title. Secondly, be- cause he has no equity. Thirdly, because this election is an usurpation upon the vicar. It is difficult to say who was the endower of this chapeL If there was sufficient waste to approve, the lord of the manor was the eudower ; but whoever was, it was not CASES IN CHANCERY. 364 an endowment of a chapel of ease, but of a conventicle in the time of the usurpation. When the times changed, and the restoration took place, the right of nomination was restored to the vicar of the mother church. It is undoubted law, that whenever a chapel of ease is erected, the incumbent of the mother church is entitled to nominate the minister, unless there is a special agree- ment to the contrary, which gives a compensation to the incumbent of the mother church : a mere arbitrary agree- ment between patron, parson and ordinary, without such a compensation, is not to be supported. In the case of prescription, every thing is presumed to have been proper. An agreement with a compensation to the parson is sup- posed. There can be no prescription in this case, because the chapel was built in 1657, or vei 7 Kul e earlier. The consecration is express as a chapel of ease ; that is suf- ficient to support the vicar's right to the nomination. Afterwards, in the same instrument, the archbishop gives the nomination to the inhabitants of Arndey and Wortley, which he could not do of his own authority; and it is observable he gives it to the most improper people, as they were sectaries. There is no pretence in this case of any agreement between patron, parson, and ordinary, either with or without a compensation to the vicar. The declaration of the vicar at the time of the consecration could not bind his successors if it did himself: nothing he could do would have that effect, unless it was by a proper deed under his hand. The nominations to the curacy by the inhabitants are so many instances of usurpa- tion, but it did not take away the right of the succeeding vicar to nominate upon a vacancy. Bill dismissed. 1766. Dixon v. Metcalfe. [366] Vide Burns EccL Law, Vol. I. 306, and Vol. II. 57. Bfi 2 365 CASES IN CHANCERY. 1st Feb. 26th Apr. 1766. REYNOUS o. JEFFREYS. (Reg. Lib. b. 1765. fol. 480.) Exchequer an- nuities settled upon the hus- band and wife for their lives, and after their deaths for the children of the marriage in equal shares, to be This case, in which the Lord Chancellor's decree was afterwards affirmed in the House of Lords, is reported very fully in 6 Bro. P. C. 398, Ed. Toml. As the Edi- tor is not in possession of any assigned and note f j^ Northington's made over to the . children at their judgment, he must refer the respective ages of reader to that account of the twenty-0pe years, case. It was lately particu- larly cited and relied upon by Sir W. Grant in his judg- ment in the case of Schenck v. Legh, 9 Ves. 311. The general doctrine upon this subject, and the subsequent cases, are collected in Choi- mondeley v. Meyrick, ante, Vol. I. 77* and the note to it. happening after the death of the survivor of the husband and wife : if any attained twenty-one in their lives, to be paid, assigned, and made over within three months after the death of the survivor, unless sooner directed ; with a proviso for sur- vivorship among the children, if any should die before their shares were payable, &c; and another, that if there should be no child, or all should die before any of their share should be payable, &c. as aforesaid, then for the husband and wife, and the survivor, and executors, &c. of such survivor : there being only one child who attained twenty-one, but died in the life of the mother, who survived the husband ; held, first at the Rolls, and afterwards by the Lord Chancellor , that the son's executor, and not the mother's, was entitled to the annuities. [ 3G6 ] 13th June, 1766. WHITE v. CARTER. (Reg. Lib. b. 1765. fol. 329.) Devise to trus- Thomas White, by his will, bearing date the 3d of tees of money to ~ . , ,*,.,, ,, ,, ,, be laid out in October , 1754, gave and bequeathed to trustees, and the land and to be settled as counsel should advise, in trust for A. and his issue in tail male to take in succession and priority, and the interest of the money till laid out to be paid to A., his sons, and issue : held, that A. should only have an estate for life in the lands to be purchased, with remainder to his first and to her sons, &c. €ASES IN CHANCERY. 366 survivors or survivor of them, all his personal estate of what nature or kind soever, charged with the payment of all his debts, legacies, and funeral expenses, upon trust, that they the said trustees, and the survivors or survivor of them, and the executors and administrators of such survivor, should lay out and dispose of the same in a pur- chase or purchases of land, to be settled and assured as counsel should advise, unto and upon the said trustees and their heirs upon trust, and to and for the use of the plaintiff and his issue in tail male, to take in succession and priority of birth ; and for default of such issue male, then upon further trust to and for the use of the said testator's niece, the defendant Ann Robertson, and the heirs male of her body, to take in succession and priority of birth; and for default of such issue male, then upon further trust to and for the use of the testator's own right heirs for ever. And after deducting the costs and ex- penses of the said trust, to be paid out of the dividends, interest, and profits, the testator ordered his trustees to pay and apply the remainder of the interest, dividends, and profits, until the said purchase or purchases should be made, unto the plaintiff, and the defendant Ann Ro- bertson, respectively, and unto their respective sons and issue male, who should be respectively entitled to the rents and profits of the freehold and copyhold estates, when purchased by virtue of the limitations aforesaid, or as near as the same might be, and the nature of a chattel interest would permit. This was a bill to carry the trusts of the will into exe- cution, and for the opinion of the court, whether the lands to be purchased should be settled upon the plaintiff as tenant in tail, or in strict settlement. The Attorney-General and Mr. Madocks for the plaintiff. This is a case in which the rule must take effect. Lord 1766. White v. Carter. [367] 367 CASES IN CHANCERY. 17«6. White v. Carter, HardwickJs determination, as well as his observations in Garth v. Baldwin (a), are strongly in point to the pre- sent case. He there said, that he would not overrule the legal construction, unless the intent of the testator plainly appeared: in that case it was not plain, and accordingly he decreed a conveyance in tail. In the present case the estate is directed to be settled in tail male on the plaintiff, and the court will not restrain him to an estate for life ; which it cannot do without taking away from the legal effect of the words. The words " in succession or pri- ority" will have effect, if the plaintiff takes an estate tail, as well as if he takes only an estate for life. The latter words disposing of the interest of the money, are no more expressive of an estate for life to the plaintiff than the former. In all the other cases in which the court has restrained the construction to an estate for life the intent has been plain. Papillon v. Voice, 2 P. W. 471. Lord Glenorchy v. Bosville, For. 3. Bagshaw v. Spencer (6). The Solicitor-General and Mr. Wedderburne for the defendant. £368] The Lord Chancellor. This is one of those cases of imperfect trusts which are left to be modelled by this court ; and where, according to the expression of Lord Talbot in Lord Glenorchy v. Bosville, something is left by the creator of the trust to be done : it therefore becomes solely a question of in- tention. For though the court has no power, where the limitations are expressly declared, to give the words a different sense from what they would bear at law, yet, where its assistance is required to direct the conveyance, it will give that direction according to the intent of the (a) 2 Ves. 646. (6) 2 Atle. 570. 1 Ves. 142. 1 Collect. Jurid. 378. CASES IN CHANCERY. 368 testator apparent upon the face of the will, if that intent is not contrary to any rule of law. I think the intention in the present case is very plain to give the plaintiff only an estate for life ; the direction to be settled as counsel should advise, and the words " in succession and priority of birth," strongly indicate his intention to have the estate strictly settled, which, I think, is put beyond a doubt by the latter clause, where he makes use of the words " sons and issue." Declare, that it was the intent of the testator to have the estate, which should be purchased with his money, settled and assured to the use of the plaintiff for life, with remainder, &c. 1766. White Carter. This decree was afterwards Vide Fearne, C. R. 184, and affirmed by Lord Camden Wright v. Pearson, ante, Vol. upon a rehearing, Amb. 670. I. 119, and the note to it. APPENDIX. APPENDIX. Certificate of the Judges respecting the Court Martial proposed to be held upon Lord George Sackvillk. TO THE KING'S MOST EXCELLENT MAJESTY. May it please your Majesty, In obedience to your Majesty's commands, signified to us by a letter from the Right Honourable the Lord Keeper, referring to us the following question, " Whe- ther an officer of the army having been dismissed from his Majesty's service, and having no military employment, is triable by a Court Martial for a military offence lately committed by him while in actual service and pay as an officer ?" We have taken the same into consideration, and see no ground to doubt of the legality of the jurisdiction of a Court Martial in the case put by the above question. But as the matter may several ways be brought, in due course of law, judicially before some of us oy any party affected by that method of trial, if he thinks the court has no jurisdiction ; or if the court should refuse to proceed, in case the party thinks they have jurisdiction ; we shall be ready, without difficulty, to change our opinion, if we see cause, upon objections that may be then laid before us, though none have occurred to us at present which we think sufficient. 372 APPENDIX. All which is humbly submitted to your Majesty's royal wisdom. Mansfield. J. WiUes. T. Parker. T. Deniaon. M. Foster. S. S. Smythe. Rich. Adams. H. Bathurst. J. E. WUmot. W. Nod. Rich. Lloyd (a). 3d of March, 1760. (a) Mr. Justice Clive was absent at York on the circuit. A similar consultation took place a few years prior to it in the case of Admiral Byng, and another in the reign of George 1st, as to the right of the sovereign to the education and marriage of the children of the Prince of Wales. The proceedings upon the latter of these are in Lord Fortescue's Reports, 401 : and more fully in 15 HorvelTs St. Tr. 1195. The former of these works also contains several early pre- cedents, in which this mode of proceeding has been re- sorted to, ana authorities by which it is justified, p. 386, et sea. Mr. Hargrove, however, in a note to his edition of Co. Lit. 110 a. ft. 129, has, on the great authority of Lord Coke, expressed serious doubts as to the propriety of these extra-judicial consultations : and, indeed, many of the pre- cedents given in the books are extremely objectionable. As in the instances mentioned by Kclynge, 9 & 10, preparatory to the trial of the regicides, the judges met at the request of the Attorney-General, to advise the king not only as to framing the indictments, but in relation to overt acts and evidence, Fortesc. 390. So in the case of Francis Fran- cia, in 1 71 7> a conference was held among the judges, three of whom who were to try the prisoner, at which the Attor- ney and Solicitor- General, who were to conduct the pro- secution next day, lent their assistance, Foster, 241, Fort" escue, 390. Lord Bacon, in a letter to James 1st, gives a curious ac- count of his management in en- deavouring, according to the king's direction, to obtain the opinion of the Judges of the King's Bench separately and privately, previous to the trial of Mr. JPeachman, a minister, indicted for certain treason- able passages in an unpub- lished sermon, and of Lord Coke's honorable reluctance to give the desired answer. Ba- con's Works, Vol. 4. 595. Kipins, Bio. Brit. Vol. 3. 682. APPENDIX. 872 It appears also not only from the guarded manner in which the present answer is expressed, but, from Lord Mansfield's letter to the Lord Keeper in which it was in- closed, and which is here sub- joined from the original amongst Lord Northington'a papers, that the judges felt considerable disinclination to have their opinions called for in this mode. A similar degree of caution was exhi- bited in a great case which occurred in the reign of Queen Anne, in the year 1711. Upon the revival of * the Arian heresy by Whiston, doubts were entertained whe- ther the convocation could in the first instance proceed against a person for heresy; and the queen, in conse- quence of an address from the Upper House, took the opinion of the judges. Four of the judges thought that the convocation had no juris- diction. The remaining eight (who, together with the At- torney and Solicitor-General, gave their opinions in favour of the jurisdiction, &c) ex- pressly reserved to themselves a power to change their mind, in case, upon an argument that might be made for a prohibition, they might see cause for it. Burnefa Own Times, Vol. III. 325. oct. ed. [♦373] Letter of Lord Mansfield to the Lord Keeper, en- closing the above Certificate. My Lord, 3d March, 1760. I laid his Majesty's commands before the judges. They are exceedingly thankful to his Majesty for his tenderness in not sending any question to them till the necessity of such reference became manifest and urgent. They have considered the point, and they all agree. In general, they are very averse to giving extra-judicial opi- nions, especially where they affect a particular case; but the circumstances of the trial now depending ease us of diffi- culties upon this occasion, and we have laid in our claim not to be bound by this answer. Mr. J. Clive is now at York upon the circuit, so that there was no opportunity to have his concurrence. I have the honour to be, &c. Mansfield. 373 APPENDIX. & SA-Djw- Jrgument of Lord C. B. Parker upon the effect of Earl Ferrers' Attainder. A title of no- 3 Sept. 10 Queen Anne. — Queen Anne, by letters bility, limited by patent, created Robert Baron Ferrers of Chartley, Vis- S^tote tril " count Tamworih > m the ^ty of Stafford, to hold to within the pro- him and the heirs male of his body ; and by the same tection of the letters patent the Queen created the said Lord Ferrers statute dt dams, Earl Ferrers, to hold to him and the heirs male of his wh ^*j tbe body, with the usual clauses. SjEiri 29 Nov. 1711.— Earl Robert was introduced and took and consequently his seat in the House of Lords as Earl Ferrers ; he had not forfeited by issue male, Robert, Lord Tamworth, his eldest son, who an attainder of died in his father 8 life-time, leaving an only daughter, felony. Elizabeth Shirley, who married James, Lord Compton, afterwards Earl of Northampton. 25 Decern. VJVJ. — Earl Robert died, leaving issue male three sons, Washington Lord Tamworth, Henry Shirley, and Lawrence Shirley ; and upon his death the earldom and viscountship descended to Washington Lord Tamworth ; but the barony of Ferrers being a barony in fee simple, descended to Lady Northampton, and since her death is descended to her daughter, the Lady Char- lotte Compton, now the wife of the Honourable George Townshend, esquire, eldest son and heir apparent of the Lord Viscount Townshend. 13 July, 17i7- — Earl Washington took his seat as [ 374 ] Ear * Ferrers, and on the 14th April, 1729, died without leaving any issue male. 21 Jan. 1730.— Upon Earl Washington* death his brother, Henry Shirley, took his seat as Earl Ferrers; and in 1745 Earl Henry died without issue. His younger brother, Lawrence Shirley, died in the life-time of Earl Henry, leaving five sons, Lawrence Shirley, Washington Shirley, Robert Shirley, Walter Shirley, and Thomas Shirley. 21 Oct. 1745. — Earl Lawrence took his scat as Earl Ferrers, and on the 18th of April, I76O, was attainted of felony and murder by his peers in foil parliament, APPENDIX. 374 * Lord Henley, Lord Keeper, being Lord High Steward pro hoc vice ; and he was executed on the 5th of May, 1760, at Tyburn, and died without issue. I propose to inquire whether the attainder of Law- rence, late Earl Ferrers, of felony and murder, will have any and what effect upon the claim of his next brother, Washington Shirley, to the earldom and viscountship ; for it is clear that the barony could not be affected by the attainder, because Earl Lawrence never had it. Peerages in England from the Conquest were by tenure of lands and tenements granted by the King's charter, on which he reserved to himself a tenure in chief by common knight's service, or grand serjeanty, or both. Afterwards they were by tenure and writs, or by writs and sitting in parliament, where the persons summoned to parliament nad no honorary possessions. And after- wards they were by letters patent of creation, or by writs and sitting in parliament ; and though antiquarians have ascertained the particular reigns in which these two last methods of creation had their commencement, I am not sufficiently versed in antiquity to say whether they have fixed upon the true times or not. All English peerages were anciently inheritances in fee simple, and descended not only to males but to fe- males successively, as they were not partible in their na- ture ; but the particular period of time when limitations of honour to the persons ennobled, and the heirs male of their bodies, were first introduced, seems to be somewhat in the dark ; and it is thought that not many honours were entailed before the reign of King Edward III., and yet I find one very old instance (if it may be allowed to be one), even before the statute de donis, in a little book called Judge Dodderidge t % Law of Nobility and Peer- [ 375 ] age, where, in page J.03, it is said, that Hubert de Burgh was made Earl of Kent in the time of Henry III. by these words, Habendum sibi et hceredibus suis de cor- pore Margarita uworis suce, sororis Alewandri Regis Scotice, procreatis, et pro defectu talis ewitus remanere rectis hceredibus dicti Huberti. This is a posthumous work, printed in the year 1658, many years after the death of that learned judge, and so incorrectly that it is not to be depended upon (a). (a) It is the same work as that which goes by the title of Bird?* Magazine of Honour. 375 APPENDIX. I however find in MadoaPs Bar. fb. 89, that King Henry III. granted the manor of Knaresborough, &c to Hubert de Burgh and Margaret his wife, and to the heirs descending from the said Hubert and Margaret to hold of the king and his heirs, during the life of each of them, and after their decease to their heirs descending from the said Hubert and Margaret, in fee and in in- heritance. Mr. Madow thought this a grant in fee tail, and his opinion seems to he well founded ; for heirs de* scending from the said Hubert and Margaret are tanta- mount to heirs of their bodies, and would exclude col- laterals. And for further satisfaction I applied to Mr. Rooke, clerk of the Rolls chapel, and deputy keeper of the records in the Tower, and desired him to search when and how Hubert de Burgh was created Earl of Kent by King Henry III. ; which he has done, but cannot find any formal creation of him ; but he has found in RoL Cart 11 H. 3. m. 24. No. 193, that that king granted to him as follows : Quinquaginta libra* sterling annua* pro tertio denario comitatus Kant: nomine com. Kant: de quo comitatu eundem Hubertum comitem fecimus percipiendas annuatim per manus Vic. Kant : ad duos termmoe anni vid. ad pasch. £25 et adfestum S. Mich. £25 ; quare volumus etfirmiter prcecipimus quod dictus Hubertus comes Kant: et hceredes sui de Margarita uxore sua sorore Aleocandri Regis Scotia procreati ha- beant predictas quinquaginta libras sterling de nobis et hceredibus nostris in feodo et hcereditate nomine comi- tis, et pro tertio denario dicti comitatus Kant : in feodo et hcereditate sicut prcedictum est From these circumstances it seems to be no improbable conjecture, that the earldom of Kent was entailed, as [ 376 ] well as the estate granted by the king, that they all might have the same duration. By an attainder of treason or felony the blood of a nobleman is corrupted, and he and his posterity are be- come ignoble. StaunforcTs Pleas of the Crown, lib. 3. ca. 34. p. 195—6. Acton's Case, 4 Co. 118 b. 1 Inst. 8 a. As Lawrence, Earl Ferrers, succeeded to and enjoyed the earldom and viscountship several years, I think that there can be no doubt but that the corruption of his blood by the attainder would impede the descent of those honours to Washington Shirley, his next brother, unless APPENDIX. 376 the statute of JVestm. 2. c. 1. will preserve them from forfeiture. CoNingtoood and Pace? f Ventris, 417- 1 H. H. 356, 367. It will be therefore proper to consider the words of that statute. It speaks, de tenementis qua multoties dantur sub conditioner videlicet, cum aliquis dat terram suam alicui viro, <$*c, and so recites the forms of fees- simple conditional, which now are entails, and then shewd two mischiefs ; that in all these cases the feoffees, after issue had, had power to alien and disinherit their issue : and also the donors were barred of their reversion ; both which being against the mind of the donor and form of the gift, were holden hard. Therefore the remedy provided is, that the will of the donor (according to the form in the deed of gift expressed) shall be henceforth observed ; so that they to whom the tenement was given under such conditions shall have no power to alien it, but that it shall remain to their issue after their death, or shall revert to the donor or his heirs, for want of issue. Having stated the words of the statute de donis, let us see what die sense and practice of the legislature have been, where a peer, entitled either to a fee-simple or an entailed honour, has been attainted of felony* \ma pars paten, an. 37 H. 6. m. 20. — It appears by Lord Dacre's that patent that Thomas, Lord Dacre, died seised of his case, barony in fee simple, and that Joan, the wife of Sir Richard Fenys, knight, was his heir ; the king therefore declares him to be Lord Dacre. King Edward IV. by his award, printed in Collinses Claims 25, awarded, that Sir Richard Fenys, in right of Joan his wife, and the heirs of her body lawfully begotten, be named and called the Lord Dacre, and have the same seat in parliament as Thomas, late Lord Dacre, [ 377 } had. The award of King Edward IV* could not change this fee-simple barony into an entail, because it was only under the privy seal ; but if it had been made under the great seal, even that would not have been sufficient to destroy or prejudice the right which the descendants of Thomas, Lord Dacre, might claim to the fee-simple honour* Rot. pari. an. Imo. Elix. n. 37* — This therefore ac- counts for the act for restoring Gregory Fenys, esquire, brother and heir to Thomas Fenys, son and heir to Sir VOL. II. c c 377 APPENDIX- Thomas Fenys, knight, late Lord Daere of the south, and his heirs in blood, which was corrupted by the said Lord Dacre's being attainted of felony and murder in the 33d year of King Henry VIII. ; for there would have been no occasion for that act if the honour had been entailed. Lord Stourton r s 2da pars paten, an. 26 H. 6. m. 26 — Sir John Stour- case- fan, knight, was by patent created Lord Stourton of Stourton, to hold to him and the heirs male of his body issuing ; and by the same patent the king granted to him several lands, &c. to hold to him and the heirs male of his body issuing. 26 Feb. 3 & 4 P. & M.— Charles, Lord Stourton, his descendant, was tried in Westminster Hall by his peers, before the Earl of ArundeU, lord high steward pro hac vice, upon an indictment of felony and murder, and was attainted upon his own confession. 23 Sep. 4 & 5 P. & M. — By an inquisition, post mortem, it is found that the said Charles, Lord Stourton y was seised of the barony of Stourton, and several lands and tenements in tail male ; and that he being so seised, had issue John Stourton, then Lord Stourton ; and that the said Charles, Lord Stourton, was attainted of felony and murder as aforesaid, and on the 6th of March follow- ing his attainder, was hanged at Salisbury ; and that on his death the barony of Stourton, and the said lands, $c. descended to the said John, then Lord Stourton, as son and heir male of the body of the said Charles. It is further found by the inquisition, that Charles, Lord Stourton, was at the time of the felony and murder com- mitted, seised of the manor of Stourton in tail male; and that the reversion in fee-simple of the said manor escheated to the crown, by reason of his attainder. It is also found [ 378 } by the inquisition, that the said Charles, Lord Stourton, was at the time of his attainder seised in fee-simple of several other estates, and that thereby some of them came as escheats to the crown, and others to mesne lords, the Earl of Pembroke, and Thomas Chaffin, esquire, of whom they were respectively held. 9 Mar. 4 & 5 P. & M. — King Philip and Queen Mary granted to Anne, Lady Stourton, the widow of the said Charles, Lord Stourton, the custody of the body and the marriage of the said John, Lord Stourton, and also an annuity of i?40 issuing out of the lands in the hands of the crown, by reason of the minority of John, APPENDIX. 378 Lord Stourton, to hold from the death of her husband, during the minority of the said John, Lord Stourton, in case the said Anne should so longlive. 14 pars paten, an. 15 Eliz. — -The queen, on the 16th of February, grants livery to John, Lord Stourton, son and next heir male of Charles, late Lord Stourton, de- ceased, of all honours, castles, manors, &c. of which the said Charles, late Lord Stourton, &c. died seised in fee- simple, or in tail. In D" Ewes' s Journal, 18 Eliz. fo. 228, there is this entry, Friday, 11 February, a writ was directed, and this day returned in common form, summoning the Lord Stourton to come to parliament. In the Journal Book of the House of Peers, 11 Feb. 18 Eliz. there is the full entry : Hodiereturnatum fuit breve If nee Regime quo Jokes Unus Stourton prce- sento parliamento interesse summonebatur, qui prcesena admissus est ad suum sedendi in parliamento locum, salvo cuiq. suo jure. These are words of course, and used on the admission of all peers who take their seats by virtue of their an- cestor's title ; and though this Lord Stourton preserved his precedency next after the Lord Lumley, yet, upon a careful search made by Mr. Rooke among the records no new patent either of creation or precedency can be found. 7 Mar. 18 Eliz. — A bill was brought into the House of Peers, signed by the queen's own hand, and read three times that day, and sent to the House of Commons, for restitution in blood of John, Lord Stourton. This bill met with opposition in the House of Com- mons, and they added a proviso to it, and returned it to the Lords, but they not agreeing to the amendment, the bill was dropped. UEwes\ Journal, 206, 230, 232, 254, 258, 260 to 264. HakewiFs Modus tenendi par- [ 379 ] liamentum, 183. Search has been made for this bill, but it cannot be found ; but it is apprehended that it only related to the fee simple lands, of which it is found by the inquisition post mortem, that Charles, Lord Stourton, died seised. 15 Feb. 1 Ed. 6. — Edward, Earl of Hertford, Vis- DukeofSomer- count Beauchamp, was created Baron Seymour, to hold *et*s case, with his other honours to him, and the heirs male of his body, and of Anne, his then wife ; and if he should die without such issue, that then Edward Seymour, the son of the said earl by Catharine, his first wife, and the heirs cc2 379 APPENDIX. mile of the body of the feaid Edward, should enjoy thtf said title of Baron- Seymour. 16 Feb. 1 Ed.6.— The said Edward, Earl of Hertford, was created Duke of Somerset with the like limitations as in the former patent. 5 Ed. 6. — The Duke of Somerset was indicted and at- tainted of felony by his peers, and executed. 5 & 6 Ed. 6. — By act of parliament it is enacted, that the Duke of Somerset and his heirs, and his heirs male* begotten upon the body of the said Lady Anne for ever, should forfeit to the king, and be deprived from thence- forth for ever, as well of the names of Viscount Beau* champ, Earl of Hertford, and Duke of Somerset, and every of them, and of all other his and their honours, de- grees, and dignities. The act then recites the attainder of the duke of felony, and enacts that it shall be good and effectual against him and his heirs. 7 Ed. 6. — By act of parliament upon the petition of Sir Edward Seymour, eldest son of the late Duke of -So- merset, by Catharine his first wife, reciting the attainder of the duke, and the confirmation of it, and that Sir Ed* ward Seymour was disabled to be his heir by reason of the corruption of blood ; it therefore enacts, that Sir Ed- ward Seymour should be restored, and enabled only in blood, as son and heir to the said late Duke of Somerset, and that Sir Edward Seymour and his heirs should be enabled to demand, hold, and enjoy all honours, castles, manors, &c. which at any time thereafter should come or descend from any collateral ancestor, as if the duke had not been attainted, and to make his pedigree as heir, as well to and from the late duke, as to any other person, as if the duke had not been attainted, the corruption of blood, or any act of parliament, or judgment concerning the attainder of the late duke notwithstanding. [ 380 ] 13 Jan. 1 Eliz. — Edward Seymour, son of the late duke by the Lady Anne, was advanced to the titles of Lord Beauchamp, Earl of Hertford. 13 June, 16 Car. 1. — William Seymour, his grand- son, was advanced to the title of Marquis of Hertford 12 Car. 2. — By act of parliament it is enacted, that William, Marquis of Hertford (great grandson and heir male of the body of the said Edward, Duke of Somerset, by the said Lady Anne), and the heirs male of his body, and the heirs male of the bodies of the said duke and Lady Anne, should be restored to the honour, dignity, APPENDIX. 880 and tide of Duke of Somerset, as fully as the duke held the same by virtue of the said letters patent, and as fully as if the act 5 & 6 Ed. 6. had never been made, any thing in the said act notwithstanding. The following observations naturally arise upon the three last mentioned acts. 1st. That there was no occasion for the act of 5 & 6 Ed. 6. to have enacted a forfeiture of the Duke of So- merset honours, if the attainder of felony itself would have had that effect. 2dly. That the act of 1 Ed. 6. only restored Sir Ed- ward Seymour in blood, so as to make him and his heirs capable of taking and enjoying any estate from any col- lateral ancestor, but it was silent as to theduke^s honours, arid had no operation upon them. 3dly. That the act 12 Car. 2., restoring the Marquis of Hertford and his heirs male, and the heirs male of the duke by Lady Anne, to the title of Duke of Somerset, as fully as if the act 5 & 6 Ed. 6. had never been made, without reversing, or even taking notice of the attainder, seems to imply the sense of the legislature, that that ho- nour was not affected by the attainder (a). We now proceed to the opinion which has obtained among learned judges and lawyers as to this point. It seems to be clear, that a local or territorial barony was a tenement within the letter and intent of the sta- tute de donis, and though it was objected in Nevil\ case in the second year of the reign of James 1. 7 Coke, 33. that the earldom of Westmoreland, created by patent 21 R. 2., was not land or a tenement, but a dignity inherent in [ 381 § the blood of the donee, and could neither be aliened be- fore or after issue, and therefore such cases of dignity were out of the mischief, words, and intention of the makers of the statute de donis; and the opinion in MaaweWs case in Plowd. Com. was cited, that the grant of a thing which does not concern lands or tenements, nor is exercisable in lands or tenements, as an annuity which is personal, was not within the statute de donis, yet it was resolved by all the judges of England, that a name of dignity might be (a) See Sit Dudley Ryder's issue male of the first duke of report upon the claim of Sir Somerset by Catharine Filolj Edward Seymour to the duke- Coxe MSS. Lincoln's Inn Li- jdom, upon the failure of the brary. 381 APPENDIX. entailed, for that case concerned lands, because the donor was by patent made Earl of Westmoreland. Lord Coke, in his 1st Inst. 19 6, says that a name of dignity may be entailed within the statute of Westm. 2, as dukes, marquises, earls, viscounts, and barons, because they be named of some county, manor, town, or place. But this notion that an honour must be from some place, does not seem to be well founded, and the con- trary is held by Lord C. J. Holt (none of the other judges of the court dissenting), in the case of the King v. Knolbjs, Trin. 6 W. & M . 2 SaUc. 509, 510, Skin. 518, 519, 1 Lord Raym. 12, 13. In 12 Co. 81, Lord Coke reports that it was resolved by the two chief justices, the chief baron, the attorney and solicitor in the 9th of King James the 1st, that the king might erect any name of dignity which was not be- fore, and for that reason the king might create a dignity by name of baronet, and create one to be a baronet, to him and his heirs male of his body issuing ; and that it was also resolved, that if the king does not create him of some place, he shall not have an estate tail, but a fee simple conditional which shall be forfeited for felony, but if he create him a baronet of a place, then shall he have an estate tail within the statute of Westm. 2. But Lord Chancellor Nottingham, in his excellent speech in the House of Lords, in the case of Robert VU- liers 9 esq., claiming the title of Lord Viscount Purbeck, in June 30, Ca. 2, declares his opinion clearly, that all entailed honours, notwithstanding any corruption of blood, are preserved by the statute of Westm. 2, against all for- feitures for felony, though not -against treason, without distinguishing whether those honours were in their crea- tion from some certain place or not. Objection. — But here it may be objected, that the sta- [ 382 ] tute of Westm. 2, only provides remedy for such tene- ments as, according to the condition of the gift, ought to revert to the donor, and which would not merge upon their reverter, but would afterwards continue in esse, so as to be enjoyed by him. Answer. — I admit that these honours (if they were not preserved from forfeiture by the statute) would revert to the crown as donor by way of extinguishment and cesser, and yet they may be as properly said to revert or return to the crown, as if they had continued in esse after their APPENDIX. 382 reverter, because the crown would thereby acquire a right to revive them, and to grant them de novo to a worthy branch of the same or any other family, and so the intent of the statute would be fully answered. Objection. — It may be also objected, that as an attain- der of felony operates by corruption of blood, why should it not have the same effect upon an entailed honour created by patent, as upon a fee simple honour. Answer. — To which I answer with my Lord Hale, 1 H. H. 356, that by the statute de donis, if tenant in tail is attainted of felony there is no corruption of blood wrought as to the issue in tail, because the very blood as well as the land is entailed, and this reason will equally hold to prevent corruption of blood of issue in tail in the present case of an honour ; but where tenant in fee simple is attainted of felony, his blood is so corrupted that no one can derive a title by descent through that blood. Objection. — But supposing that the statute de donis extends to such honours as are now in question, it may still be objected, that Lord Ferrers being attainted of felony and murder, hath forfeited the earldom and vis- oountship by a condition in law tacitly annexed to the estate of those honours, in the same manner as he would have done if he had been attainted of high treason, and the statute of 26 H. 8. had not been made, according to NeviTs case, 7 Co. Answer. — To which I answer, that there is a material difference between an attainder of high treason and an attainder of felony, because in every indictment for trea- son, it must be expressly charged to be committed against the duties of the parties' allegiance, 1 H. H. 59. but no such charge is required or would be proper in an indict- ment for felony, and therefore an attainder of treason ne- cessarily imports a breach of the tacit condition of al- legiance, but an attainder of felony only imports a breach of the law in general, and where there is no breach of the r jjgg 1 tacit condition of allegiance, there cannot possibly be a forfeiture in respect of it. Upon the whole, whatever might have been thought of this matter, if it had been quite new, yet after what has passed in parliament and elsewhere on occasion of the attainders of Lords Dacre and Stourton, and of the Duke of Somerset of felony, and after the opinion of the judges in NeviPs case, and the passages out of Lord Cokeys works, which have been cited, I must take it to be settled 363 APPENDIX. law that where nobility has been conferred and limited by the king's patent in tail from any place, it would be an estate tail within the protection of the statute otWestm. 2, de donis, and consequently the viscountship in the pre- sent case, being from a place, will not be forfeited by Earl Ferrers'* attainder of felony. And with all due deference to better judgment, I ap- prehend that though the earldom in the present case is not conferred by the patent from any place, yet it ought to have the protection of the statute de donis in the same manner as if some place had been expressed in the patent, and will no more be forfeited than the viscountship, otherwise this absurdity will plainly follow, that where two honours are conferred and limited in tail by one and the same patent, the one from a place and the other not ; that which is from a place would be an estate tail within the protection of the statute de donis, and would not be forfeited by an attainder of felony, but that which is not from any place would be only a fee-simple condi- tional, and would be forfeited by an attainder of felony. And I beg leave to repeat Lord Nottingham's opinion, that all entailed honours are within the protection of the statute de donis, and consequently, whether they are from a place or not, they are not forfeited by an attainder of felony. Lord Keeper was so well satisfied that the attainder of Lawrence Earl Ferrers of felony and murder, did not affect his next brother Washington Shirley's right to the earldom, &c, that his lordship granted him his writ, and the rest of the lords concurred in opinion with Lord Keeper, or at least acquiesced under it,' for he took the oaths and his scat in parliament as Earl Ferrers, on Monday, 19 May, 1760. So that this point is now settled by the highest authority. APPENDIX 384 Judgment of Death as pronounced on Earl Ferrers by the Lord High Steward, (Lord Henley,) on the 18th of April, 1760. Lawrence Earl Ferrers, His Majesty, from his royal and equal regard to justice, and his steady attention to our constitution (which hath endeared him in a wonderful manner to the universal duty and affection of his subjects) hath commanded this inquiry to be made, upon the blood of a very ordinary subject, against your Lordship a peer of this realm. Your Lordship hath been ar- „ raigned; hath pleaded and put yourself on your peers, and they (whose judicature is founded and subsists in wisdom, honor and justice) have unanimously found your Lordship guilty of the felony and murder charged in the indictment. It is usual, my Lord, for courts of justice, before they pronounce the dreadful sentence ordained by the law, to open to the prisoner the nature of the crime of which he is convicted ; not in order to aggravate or afflict, but to awaken the mind to a due attention to, and consideration of the unhappy situation into which he hath brought himself. My Lord, the crime of which your Lordship is found guilty, murder, is incapable of aggravation; and it is im- possible but that during your Lordship's long confine- ment, you must have reflected upon it, represented to your mind in its deepest shades, and with all its train of dismal and detestable consequences. As your Lordship hath received no benefit, so you can derive no consolation from that refuge you seemed almost ashamed to take under a pretended insanity; since it hath appeared to us all, from your cross examination of the King's witnesses, that you recollected the minutest circumstances of facts and conversations to which you and the witnesses only could be privy, with the exactness of a memory more than ordinarily sound : it is therefore as unnecessary as it would be painful to me, to dwell longer on a subject so black and dreadful. It is with much more satisfaction that I can remind your Lordship, that though from the present tribunal 384 APPENDIX. before which you now stand, you can receive nothing but strict and equal justice ; yet, you are soon to appear be- fore an Almighty Judge, whose unfathomable wisdom is able, by means incomprehensible to our narrow capacities, to reconcile justice with mercy. But your Lordship's education must have informed you, ana you are now to remember, that such beneficence is only to be obtained by deep contrition, sound, unfeigned, and substantial re- pentance. Confined strictly, as your Lordship must be for the very short remainder of your life, according to the provi- sion of the late act ; yet from the wisdom of the legisla- ture, which, to prevent as much as possible this heinous and horrid crime of murder, hath added infamy to death, you will be still, if you please, entitled to converse and communicate with the ablest divines of the Protestant church, to whose pious care and consolation in fervent prayer and devotion, I most cordially recommend your Lordship. Nothing remains for me but to pronounce the dreadful sentence of the law ; and the judgment of the law is, and this High Court doth award, That you, &c. TABLE OP CONTENTS. A. ACT OF PARLIAMENT. General rules as to the construction of Acts of Parliament. Vol. ii. p. 54 ADEMPTION. Devise and legacy from an uncle to bis niece, held not adeemed by an advancement upon her mar- riage. Brown v. Peck. i. 140 ADVANCEMENT. Where a father and two sons, A. and B., were successive lives in a copy- hold, where, by the custom, the person first named might dispose of the whole interest; and upon the marriage of A. it was agreed that the father should have power to appoint during the life of A. and the widowhood of his intended wife; the father having afterwards obtained a new grant for the lives of C a third son, and A. and B., by a will made after the death of C. in which no mention is made of the copyhold, gives the residue of his personal estate to B.: held, that B. was not thereby entitled to the copyhold. Rumbollv. RumbolL VoLii.15 See Ademption 1. Parental Influence 1. Satisfaction 1. AGENT. See Notice 3. AGREEMENT. See Gaming 1. ANNUITY. | See Election 3. 386 TABLE OF CONTENTS. ANSWER. See Notice 2. APPOINTMENT. 1. Power of jointuring, executed in favour of a wife, but with an agree- ment that the wife should only receive a part as an annuity for her own benefit, and that the residue should be applied to the payment of the husband's debts: held, a fraud upon the power, and the execution set aside, except so far as related to the annuity, the bill containing a submission to pay it, and only seeking relief against the other objects of the appointment. Alcyn v. Bclchier. V6L i. p. 132 9. Where there was a joint power to husband and wife of appointing a sum of money among children, with power, in default thereof, for the survivor to appoint ; a partial exe- cution by both of the original power, was held to prevent the execution of the secondary power by the wife, who survived. Simp- son v. Paul ii. 34 3c Testator having by his will made his daughter tenant for life of his general real estates, and of lands to be purchased, both with his personal estate, and with the pro- fits arising from sale of timber, devises his collieries, &c. upon trust, to dispose and convey the same in such manner as she, whether sole or covert, should di- rect or appoint ; and in default of appointment, to apply the money produced by the collieries, after paying the expenses, to the same uses as the residue of his personal estate : the testator then, after de- claring, that though his meaning was to give his daughter the abso- lute disposal of the said collieries, &c. to prevent the expenses and trouble that must attend the management of affairs of such a nature under the direction of the Court of Chancery, requested her to direct the money arising there- from to be applied in such manner as he had directed the same in de- fault of appointment : held, that from the general frame and intent of the will, the daughter had not the absolute disposal of this pro- perty, but that her interest was confined to a disposition by sale. Earl of Bute v. Stuart. Vol. ii. p. 87 4. Defective execution of a power refused to be supplied in favour of a natural son against persons claim- ing under a subsequent valid exe- cution of it Bramhall v. Hall. lb. 220 5. A woman being entitled to the trust of a reversion in fee of lands, by articles previous to her mar- riage, reserves to herself a power of disposing of all her estate to TABLE OF CONTENTS. 387 such uses as she should think pro- per: an appointment afterwards made by her in favour of her hus- band and children held good, al- though no conveyance of the rever- sion was ever executed. Wright v. Lord Cadogan. VoL ii. p. 239 See Chabitablb Uses 7* Por- tions I. Power 7* ARBITRATION. See Award 1. ARTICLES. See Settlement 2. ASSETS. See Charitable Uses 9. ATTAINDER. A title of nobility, limited by patent in tail, is an estate tail within the protection of the statute de donis, whether it be conferred from any place or not, and consequently not forfeited by an attainder of felony. Earl Ferrert'% Case. lb. 372 ATTORNEY AND CLIENT. Purchase from his client by a so- licitor, who was also trustee for the sale of the estate for payment of debts, confirmed upon the ground of his having attempted ineffectu- ally to sell, of there being no fraud in the transaction, and of the pur- chase having been recognised and approved of by the ceHuy que trust. Clark v. Swade. Vol. ii. p. 134 ■ See Champerty 1. AWARD. To a bill to be relieved against an award upon suggestion of misbe- haviour, &c in the arbitrators, a plea by the arbitrators of the sub- mission and award with an aver* ment of impartiality, &c overruled. Rybott v. Barrell lb. 131 B. BANKRUPTCY. 1. Court refused to interpose, though under very suspicious circum- stances, against creditors who had received goods after a secret act of bankruptcy, there being no actual proof of their having had notice of it. Fisher v. Touchett. i. 158 2. A. by deed assigns the cargoes of two ships to B. and C, but has no charter-party or bill of lad- ing to deliver to them* On the arrival of one of the ships he as- signs to another person, and after- wards commits an act of bank- ruptcy : held, that 2?. and C not having been ready to take posses sion of the ship on her arrival had thereby permitted A. to continue reputed owner, under the statute of 388 TABLE OP CONTENTS. 31 Jac. 1. c 19. Philpot r. Wil- liams. Vol. ii. p. 231 See Contingent Debt 1. BARON AND FEME. See Appointment 1. 2. Feme Covert 1. 2. 3. 4. Jointure 1. 2.3. BIDDINGS. Biddings opened after confirmation of the Master's report upon a con- siderable advance, there having been a mistake made in a particular of the estate left with the Master, and one of the parties who con- firmed the report having been steward of the family, and know- ing more than he communicated. Countess Gorver v. Earl Goruer. 76.348 BILL OF LADING. See Bankruptcy 2. BILL OF REVIEW. See Practice 3. BOUNDARIES. 1. Bill to ascertain the boundaries of two manors, dismissed, there being no dispute as to the soil. Wake v. Conyer*. i. 331 2. All the cases where the court has entertained bills for establishing boundaries, have been where the soil itself pas in question, or there might have been a multiplicity of suits. Vol. i. p. 331 3. Commissions to fix boundaries of legal estates are not of coarse; there ought to be some equitable circumstance for the court to lay hold of. lb. See New Trial 1. C. CHAMPERTY. Gift obtained from an heir at law ignorant of his rights, by one who undertook to support him in ob- taining possession of his estate, set aside under the circumstances: also money having been advanced to him by a subscription from dif- ferent persons, and among the rest from his attorney, to enable him to prosecute suits; and an absolute bond having been taken from him for double the sum lent, with a defeasance executed some days after, declaring that, if he did not recover the estate, or half of it, the bond was to be delivered up : held, that the transaction was uncon- scionable, savouring of champerty, and dangerous to public justice. Strachan v. Brander, i. 303 CHAPEL OF EASE. The incumbent of the mother-church J has the right of nominating to TABLE OF CONTENTS. 389 chapels of ease, and can only lose that right by agreement between patron, parson, and ordinary, and on a compensation made to him ; and therefore, where a chapel was erected and endowed by a grant of lands from the lord and freeholders of a manor, and the right of no- mination was giren by the arch- bishop in his deed of consecration to the inhabitants, and the vicar of the mother-church declared at the time that he had no right to no- minate, and the inhabitants had repaired and nominated for 90 years, yet it was held, that the vicar was entitled to nominate. Dixon v. Metcalfe. Vol. ii. p. 360 CHARGE. Where lands were devised, subject to, and charged with a sum not exceeding 10,000/. which testator afterwards directed to be paid to charities, void by the statute : held, that the charge sunk for the benefit of the devisee. Jackson v. jFfar- tock. lb. 263 See Escheat 2. Incumbrance 1.2. CHARITABLE USES. 1. Conveyance to charitable uses, defective on account of the uses being limited to certain officers of a corporation, and not to the cor- porate body, aided under 43 Eliz. c 4. Attomey»GeneraI v. Tancred. Vol. i. p. 10 2. Devise of lands to " the thirteen fellows of Christ's, and the fellows of GonviUe and Casus, living at the testator's death/ 9 is a devise for the benefit of the whole body cor- porate, not of the particular fellows in their natural capacities, and valid under the exception in the statute of mortmain. Attorney-General v. Tancred. lb. 10 3. The legislature intended by the exception in the statute of mort- main, to save devises for the benefit of particular members as well as of the whole body. lb. 15 4. The legislature intended to accept such devises as were really and bondjide for the benefit of colleges, not those where the legal interest only passes to the college in trust for other charitable uses. lb. 5. The exception only extends to colleges established at the time when the statute of mortmain was enacted. lb. 16 6. Devise held to be void, being proved to be upon a secret trust for a charity ; conveyances having been made by the devisees, and the trust declared, though they denied, by their answer, having made any promise. Edwards v. Pike* lb. 967 7- Where A. by will executed before the statute of mortmain, directs B. to settle a freehold estate to pay ago TABLE OF CONTENTS. a sum not exceeding 1002. per ann. in such manner and upon such trust, on such a part of the poorer people of a parish as he should think and find to be a most proper charity ; and B. in pursuance thereof, by will executed after the statute, appoints a sum less than the lOOLperann. : held, 1st, That the appointment is not void by the statute; and 2dly, That the amount to be appointed was discretionary in B., and not to be increased under the 43 Eliz. to the whole amount given by the will of A. Attorney- General v. Bradley. Vol. i. p. 482 8. Devise by will, attested by three witnesses, to A. B. and C, and the heirs of the survivor: the bill stated, that it was upon a secret trust for a charity declared by an instrument executed at the same time as the will, and attested by two witnesses only, which was ad- mitted by the answer : held, that the devise was void under the statute of mortmain. Boson v. Statham. i. 508 9. Where testatrix devised her free- hold and leasehold estates to trus- i tees, which she directed them to sell, and buy ground, and erect an alms-house, and lay out the residue in land, and also gave the residue of her personal estate to. the like uses; the devise of the freehold and leasehold being void under the statute of mortmain, part of a de- cree at the Rolls, which declared that if the trustees could obtain the gift of a piece of ground, they might erect an alms-house (giving them two years to procure such gift), and also that they were en- titled to have the assets marshalled so as to throw the debts, &c on the leasehold, reversed on appeal by the Lord Chancellor. Attar* ney-General v. TyndalL Vol. ii. p. 907 10. Testator by will executed pre* vious to the estate of 9 Geo. 2. devises his real estate and also his personal to be laid out in land for a charity; by a codicil subsequent to the statute not attested he con- firms the will: held that it operates as a hew will, and that the bequest of the personal estate is void. At- torney-General v. HeartweU. ii.234 11. Bequest of money to build and endow an hospital upon land not already in mortmain, held to be void under the stat. 9 Geo. 2. Pel- ham v. Anderson. ii 296 CHOSE IN ACTION. What amounts to a reduction of the wife's choses in action into pos- session. Forbes v. Phipps. i. 502. CODICIL. See Residuaky Leoatee 1. Cha- bitablb Uses 10. Mistake 2. TABLE OF CONTENTS. 391 COLLATERAL LIMITATIONS. Covenant in marriage settlement, that the settlor would surrender certain copyholds which were in- termixed with -his freeholds, to be settled upon the issue of the mar- riage, with limitations to collateral branches of the family ; his eldest son, upon his marriage, covenants to suffer a recovery of the freehold (which was done), and to settle the copyhold (to which he was ad- mitted in fee) ; upon a bill brought by a nephew of the first settlor, on (allure of issue of that marriage, for a specific performance of the covenant, to surrender in favour of collaterals: held, that though the consideration of marriage ex- tended to collaterals, yet that the son by the covenants on his mar- riage, and by his admission in fee, had taken the copyholds discharged of the specific limitations. Hate v. Lamb. Vol. ii. p. 292. COLLEGE. See Charitable Uses 2, 3, 4, 5 COLONIES. See Will 2, 3. COMMISSION. See Public Policy 1. Boun- daries 3. COMMON RECOVERY. Where a father was tenant for life, vol. ii. with remainder to his son in tail, who, on his marriage, by lease and release, conveys his estate to trus- tees in strict settlement ; and some time afterwards joins with his ra- ther in making a mortgage of the same estate, and suffers a recovery to the use of the mortgage : held, that the recovery shall notwith- standing enure first to the uses of the marriage settlement. Cheney v. HaU. Vol. ii. p. 357 See Devise 7- COMPOSITION. See Tithes 1. Chapel of Ease 1< CONDITION. Bequest of an allowance to a feme covert on condition she lived apart from her husband, held the con- dition contra bono* mores, and void. Brown v. Peck. i. 140 See Forfeiture 1. CONDITIONAL LEGACY. I. Bequest of 30,000/. South Sea An- nuities, to trustees, in trust, to pay the dividends to A. until an ex-* change of certain lands shall be made between him and B. s and then the capital to be equally divided between them. B. dies before the time limited by the will for making the exchange expires. Held, that A. is absolutely entitled to the D D 3& TABLE OF CONTENTS. whole legacy. Lowther v. Caven- dish. Vol. i. p. 99 % Where testator gave to his son for his life the interest of a mortgage npon an estate, of which he was tenant for life in remainder at test a tor's death, and also the fur- niture in certain houses, upon con- dition of has executing a release of -all claims he might have upon testator's estate, and of his not contesting the will : though the aon lived fourteen months after the father's death without executing a release, and upon his first hearing the will, had expressed his dissatis- faction, and an intention of filing a bill ; yet the circumstance of his never having paid any part of the interest of the mortgage, his hav- ing entered into possession of the furniture, and exercised acts of ownership, together with certain expressions of assent in his letters, were held to be evidence of his acceptance. Earl of Northum- berland v. Marquis of Granby. i. 489 3. Legacy from B. to A. on con- dition that he notified to his exe- cutors his willingness to release his claims : held, that he had forfeited his right to it by filing a bill. Ver- non v. Bethett. ii. 110 CONFIRMATION. See Parental Influence 1. CONSENT TO MARRIAGE. Marriage held to have been with consent, where A., whose consent was necessary, agreed to the mar- riage, provided a proper settle- ment could be made, and referred to B* to prepare one, whkb was accordingly done ; and though there was afterwards some alterca- tion between A. and the proposed husband, who signified his inten- tion of relinquishing his addresses, yet the consent having been ob- tained without misrepresentatien, could not be retracted: otherwise if it had been obtained by deceit or fraud. Merry v. Ryvee. Vol. i. p. 1 CONSIDERATION. See Voluntary Gift 1. Family Agreement I. Collateral Limitations I. CONTINGENT DEBT. Covenant in marriage articles, that in case the wife should survive the husband, or he should leave any issue by her, his heirs, executors, and administrators, should raise 500/. &c.: held, upon a petition by the trustees to be admitted as creditors under a commission of bankrupt against the husband, that the debt was contingent, and not proveable, though a warrant of at- TABLE OF CONTENT& 303 torney to confess judgment had been granted previous to the bank- ruptcy, and judgment entered up. Sed qu. ? ExparU Jacobs* Vol. i. p. 174 CONTINGENT REMAIN- DERS. Contingent and executory estates, and possibilities accompanied with an interest, are devisable. Moor v. Hamkins. it. 342 CONVERSION OF ESTATE. Where part of an infant's real estate was settled in jointure upon her mother, who being distressed, and about to sell her interest, a peti- tion was presented, and the infant, upon a reference to the Master, and under an order of court, pur- chased it : she afterwards attained twenty-one, received a year's rent, and died : held, that the purchase, though made during infancy, was to be considered as real estate. Intvood v. Twyne. ii. 148 COPYHOLD. See Advancjbkxnt 1* Election 2. COPYRIGHT. 1. Upon a bill brought by the king's printer to restrain the defendant . from the publication of certain acts of parliament, &c, to which the pa- • tentees for printing lawbooks were also defendants, the court refused to interfere between the contend- ing patents, and therefore only re- strained the defendant from print- ing at any other than a patent press. Baskett v. Cunningham. Vol. ii. p. 137 2. Injunction obtained by the assignee of an author after the expiration of the two terms of years allowed by the statute of Anne, dissolved, the common law right of the author being so extremely doubtful Or- borne v. Donaldson. H. 327 3. Injunction to restrain the printing of an unpublished MS., a copy of which had been by the representa- tive of the author given to a per- son under whom defendant claimed, but not with the intention that he should publish it. Dukeof Q*««w- bury v. Shebbeare. ii, 329 CORPORATION. See CttABFFABLB UsBt> 1, 2, 3. COSTS. Set Rblatob 1. COVENANTS. Demurrer to a bill by a landlord for a specific performance of cove- nants, contained in a lease which . had expired, to repair hedges and mansion-house, and also for an ac- count of loppings and dung, cut or removed, by the tenant ; allowed ; j>d2 394 TABLE OF CONTENTS. common covenants in husbandry not being the subject of equitable jurisdiction. Rayner v. Stone. Vol. ii. p. 128 CROSS BILL. See Practice 5. CROSS REMAINDERS. Appointment to all and every the daughter and daughters of A. and the heirs of their body and bodies, and in default of such issue, over ; there being only two daughters, and one of them dying under twenty-one without issue: held, that the surviving daughter was entitled, though there were no cross remainders. Wright v. Lord Cadogan. ii. 239 CUSTOM OP LONDON. Covenants in the marriage settlement of a freeman of the city of London, that the husband might dispose of the wife's share by will, and also that her executors would release and convey all her interest, &c. to the husband : held not to vary the general rule, that the children should be entitled to the benefit of a composition with the widow. Knipe v. Thornton. ii. 1 18 | D. DEBTS. See Exoneration 1. DECLARATION OF TRUST. 1. Though a use or trust must arise out of the original feoffment to uses, yet they need not be specifi- cally created at the time of the exe- cution of the deed. Wright v. Lord Cadogan. Vol. ii. p. 256 2. The statute of frauds has only im- posed a form in declaring the use, the control of the use remains as it was before the statute, the abso- lute will and declared intent of the owner. Wright v. Lord Cadogan. Vol. ii. p. 257 See Priority 2. DEFENDANT. See Notice 2. DEPOSIT. See Practice 2. DESCENT. A. having covenanted to settle lands of 100/. per ann. on his wife for life, devises certain premises of the value of 50/. and directs his execu- tors to purchase land of sufficient value to make up the said estate TABLE OF CONTENTS. 335 TOOL, and then devises all his real estates, not therein before devised to A. his eldest son, his heirs and assigns, but in case he should die without issue before twenty-one, over : held, that A. took by descent, and theiefore, that the legatees were entitled to resort to the real estate for so much as should be ex- hausted in making up the estate devised to the wife. Scott v. Scott. Vol. i. p. 458 DEVISE. 2. Devise to trustees to raise by mort- gage, or lease, so much money as would pay testator's debts, and afterwards to permit A. to receive the rents and. profits for his life, and, after his decease, to permit his eldest son and the issue male of such eldest son, to receive, &c. and, for want of issue of A., to B., in like manner ; and for want of issue of both, or if their issue should die without issue-, then over : held, a trust estate, and that A. took an estate tail. Stanley v. Lennard. i. 87 2. Testator having both freehold and leasehold property, the leasehold was held, to pass under a general devise, applicable to freehold, the intention of the testator being col- lected from the will, that it should pass under such devise. . Lowther v. Cavendish. i. 99 3. The same construction ought to be put upon words of limitation in- cases of trusts and of legal estates, except where the limitations are imperfect, and something is left to be done by the trustees ; and there- fore a devise of a trust was held to be an estate tail, from the apparent intent of the testator, ami the ge- neral words of the will, though there was a limitation to trustees to preserve contingent remainders, a reference to issue, male living at the time of the decease of the de- visee, a restriction of failure of issne male to the lifetime of per- sons tit esse, and a limitation in fee annexed to the words " heirs of the body." Wright v. Pearson. . Vol. i. p. 119 4. Devise of testator's estate at A. to his eldest son and his heirs, and in default of such to the heirs of his other children ; his estates at B. to die husbands of his two daugh- ters in like manner: held, the former an estate tail, the latter a joint estate in fee. Pickering v. Toners. i. 146 5. Devise of all testator's real estates wheresoever situate, . lying, and being: held, not to include lease- holds as well as freeholds. Whita- her v. Ambler. i. 151 6. Devise of land to trustees in trust to pay an annuity, and subject thereto in trust to A. for life ; re- 396 TABLE OF CONTENTS. tHJadn to trustees to preserve, &C. i remainder to the heirs of the body at A.; remainder to testator's tight heirs, and the residue of testator's personal estate to be laid out in land, and settled to the same uses : held, that A. was entitled to an estate tail in tin lands to be purchased. Austen t. Taylor. VoLLp.361 7. Devise of an estate It A. to I. H. tot life, remainder to the issue male of I. H. and to Us and their heirs, ■hare and share alike } and Jer want of snob issue, to the issne fa 1 is! I of /. H., and to her and their hern, share and share alike ; and for want of such issue, over : «f an estate at B. te I. H. tor life ; ■wattmeter to the issue male of his body, and to their heirs; and for want of such issue, over j with a proviso U charge the premises for rach person ss would take next in remainder, in case /. H., or his Jssne, alienate, &c. 1 1. H. had two daughters, and suffered a recovery of the estate at B. : held, that he took an estate tail, and that the proviso was repugnant to the estate. Kmg V. Burchdl. i. 434 8. Devise of premises to A. and the Issue of his body, and for want of such issue, over ; is an estate tail in A. University of Oxford v. Clifton. 1. 47S 9. Devise of the residue of the testa- tor's real sad personal estate to his executors in trust foe A. till he sheold attain twenty-one, and then that the trust should cease t held, to give the whole beneficial estate *A. Peatr.PomdL VoL.Lp.479 10. Devise of all my estate at C. //. to A. for 11m ; remainder to B. ft C. is a devise in fee to B. * C. Priotv. Gib**. H.115 11. A. having agreed to porehsse a real estate, the purchase-money for which exceeded the amount of his personalestate, by his will, made a few days afterwards, attested by three witnesses, or to all the worldly gooditkat it had pleated Godtobleu Urn with, gave and bequeathed to his wits and two sons, all hit good*, tattle, chattel!, par t o ta l e tt a t t, and ef ecU whatsoever 1 and in ease they died without issue, &e. gave the childm'tihareqfthep&rtonatettaie and effect* over : testator dying be- fore the purchase could be com- pleted: held that the agreement ought to be specifically performed ; and that the words of the will, being insufficient to comprehend real estate, the estate ought to be conveyed to the eldest sen end bis heirs, Arc Cat* f. Cant. a. 139 12. When testatrix by will directed a sum of money to bo laid out i: land, and settled, after some pre- vious limitations, on her own right TABLE OF CONTENTS. 397 Bears, and afterwards made a ge- neral residuary devise of all her real and personal estate: held, that upoi»< the evident intent of the tes- tatrix to exclude the residuary de- visee, the heir at law was entitled to a remainder in fee in the lands to be purchased. Robinson v. Knight VoLii. p. 155 13. The rule that a man" cannot make his right heir a purchaser is con- fined to the estate of which he is seised. lb. 159 W. By devise of all testator's goods and chattels in and about his dwell- ing-house and out-houses at A. at his death : held, that running horses passed. Countess Gowtr *. Earl Gamer. ii. 201 See Contingent Remainder 1. Descent l. 1 ! Interest 2. Le- gacy 1, 2, 3, 4, 5, 6. Personal Estate 2, 3, 4, 5, 6, % a Re- siduary Legatee 1. DONATIO CAUSA MORTIS. See Slate 1. DOUBLE PORTIONS. Vide Satisfaction 1. DOWER. See Election 3. Jointure 1. E. ELECTION. I. Part of testator's estate being in settlement ho devised all his estates, &c. in general words: held, that there was not such an indica- tion of his intention to dispose of that over which he had no power, as to induce a court to compel the devisee to elect. Forrester v. Cot- ton. Vol i. p. 532 2. Testator possessed of freehold and copyhold not surrendered, of which latter his mansion-house was part, after certain legacies, devises all his real and personal estate to his wife for life ; remainder to his heir at law: held, from an expression in his will, if she should think proper to reside at hu said mansion-house, that the testator intended to devise his copyhold, and that the heir therefore ought to be put to his election. Unett v. Wilkes, ii. 187 3. Devise of an annuity to testator's wife during her widowhood, charged on his real estate : held, that she must elect to take either under the will, or her dower. Arnold v. Kemp* stead. ii.23& See Conditional Legacy 2. EQUITY. 1. Nothing is looked upon in equity as done, but what ought to have been done, not what might have been done. Burgess v. Wheate. i. 186, per M. R. 2. Equity as old as Bracton. lb. 194, per eund. 39ff TABLE OF CONTENTS 3. Where plaintiff has, no right, de- fendant may hold till a better right appears. Vol. i. p» 213, per eund. 4. The arms of equity are at present very short against the prerogative. lb. 256, per €. S, See Boundaries 3- EQUITY OF REDEMPTION. 1. The equity of redemption in this court is the fee simple of the land ; will descend, may be granted, devis- ed, entailed, and barred by a com- mon recovery : which proves that, in the consideration of this court, it is such an estate as there may be a seisin %£. Burgess v. Wheate. i. 225, per C. J. 2. The principle that where two dis- ' tinct estates are mortgaged for two distinct debts, a separate re- demption cannot be decreed, ope- rates as long as the equities of re- demption remain united in the same person. Willie v. Lugg. ii. 76 See Mortgagor and Mortgagee 1, 2. 5. U8R8 and Trusts 6. ESCHEAT. 1. Right of escheat not founded on tfant of an heir, but of a tenant to perform the services. Burgess v. Wheate. i. 2Ql,per M.R. 2. The crown takes an estate by for- feiture, subject to the engagements and incumbrances of the person forfeiting. VoL i. j>.203, per eund. 3* The opinion that the lord takes the escheat, subject to the trust, seems not warranted, though no opinion given upon it. lb. per eund. 4. So fax from the lord taking any benefit as heir or assignee, he is distinguished from both, and ex- cluded from the privilege which the heir had by common law, and the assignee by statute. lb. 206, per eund. 5. For the purpose of binding the lord in escheat, deeds have been held good against him, that would have been void in other respects. Burgess v. Wheate. i. 209, per eund. 6. Case of a purchase, and the money paid by the purchaser, who dies without heir before any convey- ance : M. R. of opinion, that the lord could not pray a conveyance. lb. 211, per eund. 7* Though the lord is sometimes called quasi hceres, it is always to his prejudice, and never to his benefit. lb. 208, per eund. 8. That land escheated should be subject to the trust, seems most consistent with the lord's right, whether it be considered as a re- version or a caducary possession. lb. 229, per C J. 9. In freeholds the form of the lord's concurrence not being necessary. TABLE OF CONTENTS, 399 he is always considered as much bound as if he were a party to the deed of alienation which makes the trust; because the power which the tenant now has by law is equiva- lent to the lord's consent to the grant when it was a strict rever- sion. Vol. i. p. 232, per eund. 10. The legal right of escheat arises under the law of enfeoffment, by which the lord gave the land to the tenant and his heirs, under a tacit condition to revert, if he died with- out heirs. lb. 241, per C. S. 11. The latitude given to the donee to hold to himself, his heirs and assigns, reduced the consideration of reverter to the single event of defectum teneniis dejure. Burgess v. Wheate. lb. 242, per eund. 12. The law of escheat had no regard to the tenant's right to the land, but only to his right of seisin. lb. 243, per eund. 13. The reason m why there was no escheat ou the death of cestuy que use in equity, was, that on such event no use remained, and con- sequently no grounds for the sub- poena, lb. 244, per eund. 14* Confiscations repugnant to the genius of a free country, and con- fined to the single case of a vacant possession. lb. 253, per eund. 15. The escheat has no necessary but only a casual dependence upon the old use, which may be determined, and no new one raised, and yet the lord have no claim to his escheat. Vol. i. p. 258, per eund. See Trust 1. ESTATE FOR LIFE. See Perpetuity 1, 2. Personal Estate 4. ESTATE TAIL. See Devise 1, 3, 4 6, 7, 8. Per* petuitt 1, 2. Personal Es- tate 2, a 5, 6, 7, 8. EXECUTOR. Where testator had directed that his executors should not be liable for each other's acts, one of them, who was in good credit at the time, having called in a mortgage, and received the money, sends round the assignment to his co-executors, who execute it, and sign a receipt: held, that as no part of the money had come to their hands, they should not be answerable. Westley v. Clarke. I 357 EXECUTORY DEVISE. See Descent 1. Contingent Re-* mainder 1. EXONERATION. Devise of real estate to testator's wife, her heirs and assigns, in trust, 400 TABLE OF CONTENTS. by tale of so much and suck part of the premises as should be neces- sary, to advance and raise so much money as would fully pay off and satisfy all his just debts and funeral expenses, and all the residue to her for life, remainder to testator's heirs on her body begotten. Tes- tator gave to his uncle his tobacco- box, and the residue of his per- sonal estate whatsoever to his wife for ever, and appointed her exe- cutrix: held, the personal estate not exonerated from the payment of debts. Stephenson v. Heathcote. Vol. i. p. 38 P. FAMILY AGREEMENTS. The court will support contracts entered into to preserve the peace of families ; and therefore, where a son upon his marriage joined with his father in resettling the estate, and by a memorandum exe- cuted at the same time, agreed to secure 500/. to each of his sisters : held, that there was sufficient con- sideration for the court to decree a specific performance of this agree- ment, an attempt to shew that it had been obtained by an undue exercise of parental influence hav- ing failed. Wycherley v. Wycher- ley. ii. 175 $ee Voluntary Agreement 4. FEME COVERT: i. Court inclined to think that hus- band might release the orphanage share of wife. Vol. i. p. 64 2. Wife held to be entitled to a pro- vision against the particular as- signee of the husband, for valuable consideration of the whole of her equitable interest. Earl of Salis- bury v. Newton. i. 370' 3. Where a feme covert was entitled toone-sixth of the residue of a testa- tor's estate upon a bill filed by an- other residuary legatee, to which she and her husband were defendants ; a decree was made for sale of the es- tate and payment: held that her share vested absolutely in her hus- band by the decree, and though the defendants were creditors of the- wife, yet that the court would in- terpose to take the money out of their hands. Forbes v. Pkipps. lb. 502 4. The equity of compelling the hus- band to make a settlement out of the wife's estate, does not survive to the children, but is personal to her. Scrivcn v. Tapley. ii. 337 See Jointure I. FEOFFMENT. See Declaration of Trust 1. FIRE. See Lessor and Lessee 1. TABLE OF CONTENTS. 401 FORFEITURE. Clause of re-entry in a lease for three lives in case lessee or his execu- tors, &c. should lease for more than seven years without licence, the third life being in possession, under his father's will and being his executor, leased for fourteen years : held, that it was no forfei- ture, as he had not notice of the condition, and as the lease could not extend beyond the life of die lessor, it could not pass an interest for fourteen years certain. North- cote v Duke. Vol ii. p. 319 FORGERY. See Trustee 5, 6. FRAUD. 1. Sale declared to be made subject to the trusts of testator's will, where under a decree that his real estate (which was devised in strict settlement, subject todebts) should be sold, the sale had been effected by collusion, between the creditors and tenants for life. Manaton v. Motesworth. i. 18 2. Fraudulent conveyance set aside as against a purchaser with notice, notwithstanding a great length of time which had elapsed since the original transaction. Alden v. Gregory. ii. 280 See Appointment 1. Champer- ty 1. Publhs PoLior 1 . RE- LEAS* 1. G_ GAMING TRANSACTION. Issue directed to try whether an agreement to carry on an illegal game, and a contribution for that purpose, had been made or not. Nash v. Ash. Vol L p. 378 GENERAL RELIEF. See Practice 3. GRANDCHILD. 1. Opinion given that the word grand- children in a will, comprehends great grandchildren, unless the in- tention appears to the contrary: in the present case it was so held, on the ground of the testatrix having in another part of the will described a great granddaughter as a granddaughter. Hussey v. Berkeley. ii. 194 2. Widow of a grandson held not to be comprehended under the de- scription of a granddaughter. lb. H. HEIR AT LAW. See Descent 1. Devise 12, 13. | Election 2. Wile, 9, & 402 TABLE, OF CONTENTS. HUSBANDRY. See Covenant 1. I. INCUMBENT. See Chapel of Ease 1. INCUMBRANCE. 1. A. created a trust for the payment of incumbrances out of the rents and profits of his real estate, part of which, being subject to the arrears of a rent charge to the crown, discharged by a privy seal, provided 5000/. be paid to B. and > C, for securing which a term created by act of Parliament : held, that this was a debt affecting the estate, and not within the trusts of the deed, and therefore that the tenants for life must keep down the interest. Earl of Peterborough v. Mordaunt. Vol. i. p. 474 2. Where heir inherits a mortgaged estate, if he executes a new cove- nant and bond, with a new equity of redemption, he makes the debt his own, and his personal estate shall be primarily liable. Donis- thorpe v. Porter. ii. 162 See Chaboe 1. Escheat 2. Re- gistry 1 . INFANT. See Conversion of Estate 1. Jointure 1, information: See Relator 1. INJUNCTION. See Copyright I, 2, 3. Lessor: AND Lb88BE 1. inquisition: An inquisition will not entitle the crown to seize where there is a legal title in possession. Burgess v. fVheate. Vol i. p. 188, per M. R. INSURANCE. Satisfaction having been made, under a royal commission for distribution of prizes, to the insured, such of the insurers as had paid, held en- titled to restitution though fo- reigners ; but not those who had compounded and renounced sal- vage. Blaauropot v. Da Costa* i. 130 See Lessor and Lessee 1. INTEREST. 1. Interest refused upon a stale de- mand. Merry v. Ryves. i. 1 2. Devise to A. for life, with remain- der to his first and other sons, re- mainder to his daughters ; and, in default of such issue, the premises to stand charged with two sums, to be paid after the death of A~ TABLE OF CONTENTS. 403 without issue, and subject to such charge over, with a power to A. of jointuring the whole estate, which he executed, A. dying with* out issue, held that the sums only carried interest from the death of the jointress, who survived him. Reynolds v. Meyrick. Vol. i. p. 48 See Mortgagor and Mortgages 1. INTRODUCTORY WORDS. Effect of, in a will. ii. 145 ISSUE. See Gaming 1. New Trial 1. Will 2, 3. J. JOINT STOCK COMPANY. See Trustee 5, 6. JOINTURE. 1. Determinations of the Lord Chan- cellor, 1st, That the statute of 27 H. 8. which introduced jointures, extends to adult women only, in- fants not being particularly named : and therefore that, notwithstand- ing a jointure on an infant, she may waive the jointure, and elect to take dower. 2dly, That a cove- nant by the husband that his heirs, executors, or administrators, shall pay the wife an annuity for her life in full for her jointure, and in bar of dower, without expressing that it shall be charged on any par- ticular lands, or be secured out of lands generally, is not a good equitable jointure within the sta- tute. 3dly, That a woman, being an infant, cannot, by any contract previous to her marriage, bar her- self of a distributive share of her husband's personalty in case of his dying intestate : reversed on ap- peal by the House of Lords. Drury v. Drury. Vol. ii. p. 39 Earl of Buckinghamshire v. Drury. lb. 60 • 2. Husband having a power to make a jointure of any part of the estate not exceeding 400/. per annum, covenants on his marriage to settle lands of the yearly value of 400/. clear of taxes and reprizes ; he afterwards makes a settlement of lands, with a covenant, that if they should fall short of 400/. per an- num, he would make up the defi- ciency : held, that the settlement was intended as an execution of the power, and the making the jointure clear of taxes and reprizes in the articles was a mistake. Countess of Londonderry v. Wayne. ii. 170 3. Where lands of a specified annual value are settled in jointure pur- suant to a power, the value is to be estimated at the death of the husband. lb. 40* TABLE OP CONTENTS. JURISDICTION, &e Pbactccjb &. LACHES. £fer Sbttmhnt 2. LAY IMPROPRIATOR. $ee Tithes 1. LEASE* See Fobfbitube 1. Mistake 1. Quasi Tenant in tail 1. Re- LEASEHOLD. See Derma 4, 5. RbmbwaI* 2. LEGACY. 1. Bequest to the children of testa- tor's daughter, to the number of four* of the sum of 1000?. each, if more, the 4000/. to be divided be- tween such as should be living at testator's death ; but, if his daugh- ter should die without issue, then over ; a child by another husband, born after testator's death, cannot take, and the bequest over is good, being not a limitation over, but an absolute legacy. Salkeld v. Ver- non. Vol. i. p. 64 % Residue of testator's estate direct- ed to be invested in government securities, and the interest psid to his wife, aad after her death to be ssUy and the money thereby iflff to be divided amongst daughters sad grandchildren: held, that the shave of a daughter dying in the lifetime of the wife, was vested. Hoick v. Mills. VeLi.p.34* 3. Residuary bequest to "the said JL C" these being two persona of that name {A. C. of St. I. and A. C. of H.) 9 both of whom were specific legatees: held, from the manifest intent of the testator, ap- parent on the face of the will, that the former was entitled. -For v. ColUfu. ii. 107 4. Legacy to trustees to be put out upon security, the interest to be paid to A., and in case he marry or die, the interest to be paid to B., in trust for her till she came to the age of twenty-one years: held, that J5. was absolutely en- titled to the legacy. Hale v. Beck. 8.229 5. Testator gives to his executor an annuity of 2Q0L charged on his real estate, and payable at certain specified periods ; by a codicil, at- tested by two witnesses only, he gives him another annuity of 1002., payable as mentioned in his mil: held, that the executor was entitled to both, the latter annuity being TABLE OP CONTENT9. 405 payable out of Us personal estate. Wright v. Lord Cadqgan. Vol. ii. p. 239 6. Bequest of money in the funds to A. in trust for B. an infant, and for such younger son or sons as B. shall have, equally to be divided between them ; and in case there shall be but one younger son, then the whole to him ; held, that B. took only a life interest, subject to which his younger children took the whole. Garden v. Pnlteney. ii. 323 See Ademption 1. Condition 1. Conditional Legacy 1, 2, 3. Satisfaction 1. LEGATEE. 1. D esc ripti on of legatee, which it was doubtful whether it applied to mother or daughter, held from the construction to mean the fomer : extrinsic evidence admitted, but held to amount to nothing. Hus- *ty v. Berkeley. ii. 194 See Legacy 3. LENGTH OP TIME. See Fraud 2. LESSOR AND LESSEE. Whether lessee of a house, who is under covenants to repair, acci- dents by fire excepted, the house being burnt down, and lessor, who had insured, having received the insurance money, but neglecting to rebuild, is entitled to aa injunction till the house is rebuilt, against an action at law brought by the lessor for the rent, quaere 9 Camden v. Morion. Brown v. (fruiter* Vol ii. p. 219 LIEN. Master being turned out of possession upon the vessel's being captured, does not deprive him of his Hen for the freight in case of her re- capture. Ex parte Cheesman. fi.181 LIMITATION. 1. Limitation of a leasehold estate in a marriage settlement after the de- cease of husband and wife, in trust for such child and ehJWrea as* they should appoint ; and in default of appointment, to all and every the child and children equally: held* to be a vested remainder, which opened to take in the issue, as they cametiieffe. Lamrence**Maggs. i.453. 2. Settlement after marriage of stock which had been the wife's property, in trust for the husband for life, then to the wife for life, and then to the heir male of the body of husband and wife, m default of such heir male, to the heirs female, &c. with a clause that, if the hus- band should settle lands of equal value to the like uses, the stock 406 TABLE OF CONTENTS. should be re-assigned to him : a son being afterwards born, who died in the lifetime of the rather, without issue, and under age: held, that the property vested in the father, and passed by his will. Le Rous- seau v. Rede. Vol. ii. p. 1 LITERARY PROPERTY. See Copyright 1, 2, 3. LUNATIC. See Relator I. M. MANORS. See Boundaries I. i MARRIAGE. See Condition 1. Consent 1. Revocation I. MARSHALLING ASSETS. See Charitable Uses 9. MASTER OP VESSEL. &eLiEN I. MERCHANTS' ACCOUNTS. Merchants' accounts, after six years total discontinuance, within the Statute of limitations. Martin v. Heathcote. ii. 109 MERGER. 1. A. devises certain premises (sub- ject to a mortgage of 3500/1) to his three daughters, to be divided equally; one dies; mortgagee be- queathes to the two survivors all the money due on the mortgage and the interest, so that it do not altogether exceed 4000/., and if it do not amount to 4000/., then to be made up : the other daughter dies, leaving all her real and personal estate to the third : held, that the charge is merged in the inherit* ance. Price v. Gibson, Vol. ii. p. 115 2. Where a person is entitled to a sum of money charged upon an es- tate, and secured by a term of years, and afterwards becomes en- titled to the fee-simple of the es- tate, a court of equity extinguishes the equitable lien, except in the case of creditors or of infancy. Do- nisthorpe v. Porter. ii. 162 MISREPRESENTATION. See Volunteer 4. MISTAKE. 1. Where a lease had been granted with a covenant for renewal, and also the deputation of a keeperahip, with a memorandum to renew con- currently with the lease ; and upon renewal, a few days before the ex- TABLE OF CONTENTS. 407 piration of the term, the renewed , deputation had been by mistake made for the residue of the old, in- stead of for the new term : held, that the mistake ought to be rec- tified ; and though there was a co- venant in the lease not to assign, yet as that covenant would not at law have prevented an underlett- - ing, the same relief was given to an under tenant as the original lessee would have been entitled to. Jala- bert v. Duke of Chandos. Vol. i. p. 372 2. Mistake in a will and codicil as to the amount of a fund out of which younger children were to be pro- vided for, rectified on the evident intent of the testator. Bracken- bury v. Brackenbury. ii. 275. Set Notice 3. MORTGAGOR AND MORT- GAGEE. 1. Absolute conveyance, and a deed of defeasance, on payment of mort- gage-money, during the joint lives of mortgagor and mortgagee, held a restraint upon mortgagor ; and a redemption decreed, there being also fraudulent and oppressive con- duct on the part of the mortgagee. Spurgeon v. Collier. - i. 55 2. Conveyances held upon the cir- cumstances and answer of defend- ant to be mortgages, and not abso- VOL. II. lute conveyances; and defendant having insisted upon their being absolute conveyances, plaintiffs were allowed to redeem with costs* England v. Codrington. Vol. i. p. 169 3. If mortgagor were to die without heirs, and mortgagee in possession were to come against the personal representatives for the money too, M. R. of opinion, that the court would compel him to re-convey, not to the lord by escheat, but to the personal representative. Bur- gess v. Wheate. iPer M. R. i. 211 4. A. having granted a mortgage of anticipation to B. of a West India estate, being found upon an account taken to be greatly indebted to him, releases the equity of redemp- tion to B. and his heirs ; it not ap- pearing, however, at the time to have been intended as an absolute sale, and B. having both by letter and in conversation stated himself as being only mortgagee in posses- sion, a redemption was decreed. Vernon v. Bet hell. ii. 110 5. Deed of mortgage at 5 per cent. contained a proviso that as often as the interest should be paid half yearly on the days appointed, or within three months next after each, so much should be deducted as would make the interest 3f per cent. By a separate agreement, mortgagee covenanted not to call E E 44)8 TABLE OF CONTENTS. in the money within five years, un- less the interest should be in arrear. The first half year's interest net having been tendered till after the three months, but the second half year's interest before: held, first, that mortgagee was only entitled to interest at 5 per cent, for the half year which had been tendered after the time, and secondly, that in consequence of the default, he was entitled to call in his money. Stanhope v. Manners. Vol. ii. p. 197 6. A prior incumbrancer not allowed to turn interest into principal by indorsement, as against a subse- quent incumbrancer, of whom she had notice. Digby v. Craggs. ii. 200 7* Mortgagee held, notwithstanding a recital in the declaration of trust, to have obtained a security to the extent of the interest of mortgagor in the premises. Sheldon v. Cox. ii. 234 See Equity of Redemption 2. Priority 1, 2. Registry 1. Revocation 1. MORTMAIN. See Charge 1. Charitable Uses 1,2,3,4,5,6,7. MULTIPLICITY OF SUITS. See Boundaries 1. N. NATURAL SON. See Power 1. NEW TRIAL. New trials granted in issues directed to try the right of the soil, though the judge certified in favour of the verdict ; as there was no precedent of a decree, where the inheritance would be bound, being made upon one verdict only. Earl of Darling- ton v. Bowes. VoL i. p. 270. NON DECIMANDO. See Tithes 1. NOTICE. 1. Covenant in a marriage settle- ment that the husband shall, within one year, execute, he being then under age, does not shew such an interest in him as to put a pur- chaser upon inquiry. Homorth v. Deem. i. 351 2. Proof of constructive notice by one witness not sufficient against a positive denial of notice by the answer. lb. 3. Where in the office copy of a will a whole line of the original had been omitted, but the sense was left in such a manner as to give reason to suppose that the original TABLE OF CONTENTS. 409 contained a limitation in tail of real estate : held, that this was suf- ficient to put a purchaser upon in- quiry. Surman v. Barlow, Vol. ii. p. 165 4. Notice to agent held to affect prin- cipals, and no difference in this case by his being owner of the estate. Sheldon y. Cox. ii. 224 5. A purchaser is not bound to take notice of an equity arising out of the mere construction of words, which are uncertain, and the mean- ing of which often depends upon their locality. Cordwell v. Mack- rilL u. 347 See Bankruptcy 1. Priority 2. O. OPENING BIDDINGS. See Biddings. ORPHANAGE. See Baron and Feme 1. P. PARENTAL INFLUENCE. 1. A father having advanced a child in his infancy, upon his coming of age, takes a bond from him to a greater amount than the sums ad- vanced; held, the bond obtained by parental influence, and decreed not to stand as a security for the sums advanced, but to be set aside altogether. 2. Loose expression in a letter from the son held not to be a confirma- tion. Carpenter v. Heriot. Vol. i. p. 338 See Family Agreement I. PARENT AND CHILD. See Advancement 1. Parental Influence I. PAROL AGREEMENT. See Resulting Trust I. Perjury 1. PAROL EVIDENCE. 1 . Parol evidence of testator's inten- tion to give his personal estate ex- empt from debts, rejected. Ste- phenson v. Heathcote. i. 38 2. Where land was paid for with the money of A. parol evidence to shew that the purchase was made on be- half of B. refused. Barilett v. Pickersgill. i. 515 PARTICEPS criminis. Relief given to. ii. 190 PARTITION. Two tenants in common in tail of a copyhold estate (where the entail was barred by surrender) enter into an agreement for a partition, * e e 2 410 TABLE OF CONTENTS* and moke cross surrenders of the parts allotted to each other ; held, that they only barred a moiety of . their respective estates, and that the agreement to divide cannot operate as a partition, particularly in the case of copyholds, as it was without the lord's privity ; nor can a defendant, claiming under the en- tail, be compelled to substantiate the agreement. Oakeley v. Smith. Vol. i. p. 261 PATRON. See Chapel of Ease 1. Tithes 5. PERJURY. A defendant having been convicted on the evidence of plaintiff (among other witnesses), of perjury, in denying a parol agreement in his answer ; leave for plaintiff to file a supplemental bill, in the nature of a bill of review, stating this con- viction, refused. Barilett v. Pick- ersgiU. i. 515 PERPETUITY. 1. Testator devises his real estates to trustees, to several persons for life, with remainder to their first and other sons in tail male successive- ly ; but directs his trustees, upon the birth of every son of each tenant for life, to revoke the uses before limited to their respective sons in tail male, and to limit the premises to such sons for their lives, with immediate remainders to the re- spective sons of such sons in tail male : held, that this clause of re- vocation and resettlement was void, as tending to a perpetuity, and being repugnant to the estate set- tied. Duke of Marlborough v. Earl Godolphin. Vol. i. p. 404 2. Power of alteration of estates tail as they were to come in esse into tenancies for life : held to be void. Heath v. Heath. ii. 330 PERSONAL ESTATE- 1. Court not to inquire into the amount of the personal estate, whether sufficient or not to pay testator's debts. i. 43 2. Bequest of the residue to his daughter, and her issue, and for want of such issue, over ; the limit- ation over too remote, and there- fore void. Salkeld v. Vernon, i. 64 3. Bequest of 100/. to A., to be im- proved till he should attain the age of twenty-one; and in case he should die before twenty-one or of* tertvards without issue, then the money to be equally divided be- tween the testator's sons and daughter : held the limitation over too remote. Gray v. Shawne. i.153 4. Testator devises leasehold pre- mises to his executor, after pay- TABLE OF CONTENTS. 411 ment of certain sums, to pay the rents to A. for life, and then that his natural daughter should have the same for her life ; and in case she should die, leaving no lawful issue, he bequeathed the premises to his executors, to be sold for the purposes of the will : held the de- vise to the executors not too re- mote. Taylor v. Clarke. Vol. ii. p. 202 5. Appointment by will of a sum of money to several persons upon the death of testatrix's son without issue, or without making any dis- position by will or deed, held to be too remote and void. Grey v. Mon- tagu, ii. 205 6. Bequest of money to testator's wife, and the issue of her body, and failing such issue to such of his heirs whom she should appoint by written will : held, that the subse- quent words did not control the previous limitation, and therefore that a bequest over of the money was void, as being too remote. Houston v. Ives. ii. 216 7'. Bequest of money to A. upon con- dition that he should pay an an- nuity to B. and in case he should die without issue, then to be equally divided amongst such of testatrix's nearest relations which should at that time be living : held, the be-i quest over was too remote. Des- touches v. Walker. ii. 261 8. Bequest of personal, estate to A. during his life, and if he has no heirs, then over: held, the bequest over was void, as being too remote. Bodens v. Lord Galway. Vol. ii. p. 297 See Charitable Uses 1. Exone- ration 1. Limitation 2. PLAINTIFF AND DEFEND- ANT. See Perjury 1. PORTIONS. 1. Term to commence after the fa- ther's death, to raise portions for younger children, in such shares and proportions as he should ap- point, for want of appointment, equally, to sons at twenty-one, to daughters at twenty-one or mar- riage, to be paid immediately after the decease of the father; with survivorship in case of the death of a child before its portion should become due and payable. The fa- ther died without making any ap- pointment: held, the portions vested at twenty-one or marriage during his life. Cholmondeley v. Meyrick. i. 77 2. Sums of money appointed by deed and will to A. for life, and then for her daughters and younger sons, payable in such shares, &c as she should appoint, &c and in default, in trust for all her daughters and 412 TABLE OF CONTENTS. younger sons in equal shares, to be paid at their respective ages of twenty-one years ; and in case any of them die before his or her por- tion became payable to the sur- vivors: held, that the portions vested in the children at twenty- one, during the lifetime of A. Earl of Salisbury v. Lambe. VoL i. p. 465 3. Covenant in marriage articles, that in case the father should happen to die leaving issue male, and one or more younger sons or daughter, to raise portions ; if but one then living 1000/., if two, 1 200/., if three 1500/., to be paid at their respec- tive ages of twenty-one, or mar- riage, in such proportions as the survivors of the father and mother should direct, in default of such direction, equally: held, that the share of a son who attained twenty- one was vested, though he died in the father's lifetime. Rooke v. Rooke. ii. 7 4. Where portions were provided for daughters on failure of issue male, to be paid at twenty-one, or mar- riage, after the death of the sur- vivor of the father or mother; the father having died, and there being on only daughter, who had at- tained twenty-one ; it was held, from the clear indication of the in- tention to postpone the raising till after the death of the survivor, that the portion should not be raised during the lifetime of the mother. Verney v. Earl Verney. Vol. ii. p. 26 5. Exchequer annuities settled upon the husband and wife for their lives, and after their deaths for the chil- dren of the marriage in equal shares, to be assigned and made over to the children at their respective ages of twenty-one years, happen- ing after the death of the survivor of the husband and wife : if any attained twenty-one in their lives, to be paid, assigned, and made over within three months after the death of the survivor, unless sooner directed; with a proviso for sur- vivorship among the children, if any should die before their shares were payable, &c.; and another, that if there should be no child, or all should die before any of their shares should be payable, &c as aforesaid, then for the husband and wife, and the survivor and ex- ecutors, &c. of such survivor: there being only one child who at- tained twenty-one, but died in the life of the mother, who survived the husband: held, first at the Rolls,' and afterwards by the Lord Chancellor, the son's executor, and not the mother's, was entitled to the annuities* Reynons v. Jeffreys. ii.365 TABLE OF CONTENTS. 413 See Ademption 1. Mistake 2. Satisfaction 1. POSSESSION, Effect of length of possession. Vol. i. p. 297 POWER. See Appointment 1, 2, 3, 4, 5. Perpetuity 1, 2. Baron and Feme 1. PLEA. Plea of purchase from one having a reversionary estate, and conse- quently not in possession, over- ruled, because it did not set out how the person from whom the title was deduced became entitled. Hughes v. Garth. ii. 168 See Award L PRACTICE. 1. An appeal or rehearing for costs only, allowed under particular cir- cumstances. Cowperv.Scott. i. 17 2. An original and two supplemental lulls considered but as one cause, and therefore but one deposit ne- cessary, ib. 3. Allowance of a debt in the mas- ter's report, which had been ob- tained by fraud, rectified, the pro- per mode of proceeding being by original bill, not by bill of review ; and held that k was not necessary to pray specifically that. the act of the court should be set aside, plain- tiff having made a sufficient case to obtain that relief under the prayer for general relief. Mana- ton v. Molesworth. Vol. i. p. 18 4. A bill of review, with matter come to the party 's knowledge since the hearing, lies where the plaintiff in the bill has since the hearing dis- covered matter which would vary the decree; and where, if such matter was known to the other party, he was not in conscience obliged to have discovered it to the court. For if the matter was known to the other party, and such as in conscienoe he ought to have discovered, he obtains the de- cree by fraud, and it ought to be set aside by original bill. i. 25 5. Filing a cross bill prevents any objection to the jurisdiction. i.190 See Relator 1. PRESCRIPTION. See Tithes 1. PRESUMPTION. Doctrine respecting. i. 296 PRIORITY. 1. Third mortgagee, having pendente lite, and after the first mortgagee had by his answer submitted (on payment of the money due to hint) to assign to the plaintiff, the se- cond mortgagee, obtained an as- signment of the first mortgage, 414 TABLE OF CONTENTS. decreed to be entitled to hold the estate against the second mort- gagee till he should be paid what was due to him upon both, he hav- ing had no notice of the second mortgage when he advanced his money. Belchier v. Butler. Vol. i. p. 523 2. The custody of the deeds creating a term, accompanied by a declara- tion of the trust of it in favour of a second incumbrancer without no- tice of the prior mortgage, held to give him an advantage over the first incumbrancer, which a court of equity would not deprive him of. Stanhope v. Earl Verney. ii. 81 3. The person claiming under such second incumbrancer, upon pur- chasing the equity of redemption from the mortgagor, was held not to have relinquished such advan- tages by having covenanted to re- tain part of the purchase money to redeem the prior mortgage, as it was also agreed that he might use the money adversariou&ly in case he could not adjust the matter amicably. Stanhope v. Earl Ver- ney. ii. 81 PUBLIC POLICY. Money advanced by plaintiff to the defendant to procure him a com- mission in the marines, decreed to be refunded with interest, plaintiff having, after six months, been dis- covered to have worn a livery, and being thereupon discharged: first upon grounds of public policy, and secondly, as plaintiff had been im- posed upon, defendant knowing that he was incapable of holding the commission. Morris v. M'Cul- lock. Vol. ii. p. 190 See Spiritual Ascendancy I. PURCHASER. See Bankruptcy 1. PleaI. Q. . QUASI TENANT IN TAIL. Quasi tenant in tail of a freehold lease for lives may, by surrender- ing the old lease, and taking a new one to himself, bar the remainders over. Gray v. Mannock. ii. 339 R. REGISTRY. I. Where premises had been sold under a decree, held that the lien of an incumbrancer was not trans- ferred to the purchase-money, so as to be out of the registry act ; and he was therefore postponed to subsequent incumbrancers. Hen* nand v. Moore. i. 327 2. Notice of an unregistered mort- gage hejd to affect subsequent mortgagees, who had registered. Sheldon v. Cox. ii. 224 TABLE OF CONTENTS. ***; 415 RELATOR. In an information at the relation of a lunatic, a proper relator was di- rected to be appointed, who might be responsible for costs of the suit. Attorney-General v. Tyler. Vol. ii. p. 230 RELEASE. A release, ex vi termini, imports a knowledge in the releasor of what he releases, and, therefore, where executors (who had taken the opi- nion of counsel, which they had not communicated) obtained a release of the orphanage share from the husband of a freeman's daughter, they were decreed to account that the parties might elect, the length of time and al- leged loss of vouchers being no sufficient bar to such account. Salkeld v. Vernon. i. 64 See Volunteer 4. REMAINDER-MAN. A party who is plaintiff, has no right, in order to clear his own title, to bring remainder-men before the court, upon a discussion whether a prior remainder-men has title or not ; and therefore a bill as against them dismissed. Pelham v. Gre- gory, i. 518 RENEWAL. 1. Bill for a specific performance of a covenant for renewal dismissed, it being either a covenant for perpe- tual renewal, and if so, obtained without consideration from the les- sor, or else founded upon a mis- take; but there being no proof of its having been improperly ob- tained, a cross bill to have it de- clared void was dismissed with costs. Redshatv v. Bedford Level Company. Vol. i. p. 346 2. Where a leasehold estate for lives was settled upon the husband for life; remainder to the wife for life, with remainders to the children, the husband having renewed by putting iri the wife's life, is to be considered as a creditor upon the estate for the fine and charges of renewal. Lawrence v. Maggs. i.463 RENT. See Lessor and Lessee 1. REPUBLICATION. See Charitable Uses 10. REPUTED OWNER. See Bankruptcy 2. RESIDUARY LEGATEE. Testator gives the residue of his per- sonal estate to his three children* 416 TABLE OF CONTENTS. A. B. and C share and share alike, as tenants in common, and not as joint tenants; but by a codi- cil revokes C. fown being one of his residuary legatees, and gives her a pecuniary legacy instead: held, that this third does not be- long to the two other residuary le- gatees, but shall go according to the statute of distributions. Cres- wdl v. Chessfyn. Vol. Ji. p. 123 See Devise 9. REVOCATION. Testator devises real and personal estate to certain uses, and after- wards by deed conveys it to the same uses until marriage, and then to new uses; providing for his in- tended wile, and the issue of the marriage: after the deed, and be- fore marriage, by codicil attested by three witnesses, and directed to be annexed to his will, he im- poses a forfeiture in case of his wife being disturbed; and after the codicil, marries: held, that the settlement revokes the will, which is republished by the codicil ; that the new uses springing on the mar- riage do not revoke the codicil, nor the marriage, as being contem- plated by the will. Jackson v. Hvrtock, ji. 263 RUNNING HORSES. See Devise 11. 3. SALE. See Appointment 3. Biddings 1. SATISFACTION. A. upon his second marriage, settles land to raise 5O00L for the children of the marriage : having four chil- dren by that marriage, he, by his will, in which he takes no notice of the settlement, gives 1000/. to each of them as his and her portion: held, that they were not entitled to portions under both instruments, and that as they had accepted the provision by the will, they were bound by such acceptance. Byde v. Byde. Vol. ii. jv 19 SATISFIED TERM. See Priority 2. SECRET TRUST. See Charitable Uses 6. 8. SEISIN. See Equity of Redemption 1. Escheat 12. SETTLEMENT. 1. Settlement after marriage, held voluntarily, proof of its having been made in pursuance of a parol pro- mise before marriage failing, and TABLE OF CONTENTS. 417 court of opinion, that even if such promise had been proved to have existed, it would not have sup- ported a settlement made after marriage. Spurgeon v. Collier. Vol. i. p. 55 2. Where a mother who was tenant for life with remainder to her son in fee, who was under age, cove- nanted, on his marriage, that they would settle, within two years, an estate on the heirs male of the marriage ; bill, for a specific per- formance, by decreeing a strict settlement, dismissed: and even if it had appeared that there had been a sufficient covenant for that pur- pose, a great length of time having elapsed, and none of the parties having asserted their rights, the court would not have interfered. Howorth v. Deem. i. 351 3. The court will, from the general frame of a settlement, collect the intent contrary to the express words of a particular clause, and therefore where an estate in N., part of the general estate, was, in default of issue maleof that marriage, limited to the first and other daughters, and terms were created of the whole estate, to raise portions for daugh- ters, payable at certain times, and in certain events; and in case there was no issue male of that marriage, such portions were directed to be augmented; with a proviso, that in case any daughter should be en- titled to the estate in N., before the portion appointed for her should be to be paid, then her portionshould cease, and not be paid: there being an only daughter, and the father having died without issue male after her portion was vested, held, that she ought to be considered as an eldest son, and that she was not entitled to the augmented portion, though the estate vested after it became payable. Earl of Northum- berland v. Earl of Egremont. Vol i. p. 435 4. Where articles were entered into previous to marriage, for settling by the wife's father lands to the use of the husband and wife for their lives, and the life of the sur- vivor, and after the death of the survivor, to the use of the heirs of the body of the husband on the wife, remainder over; and a settle- ment was made after (the marriage reciting the articles, and said to be made in pursuance of the marriage; upon a bill brought by a son of the marriage, the court refijsed to de- cree the articles to fee carried into execution by a strict settlement against a purchaser for a valuable consideration, who had notice of them, on the greundof the articles not being produced, by which alone the court could alter the settlement. CordmeUv.HaekriU. ii.844 418 TABLE OF CONTENTS. SLAVE. Bill by the administrator of the de- ceased for an account of personal estate given by her as a donatio causa* mortis to a negro who had been brought to England as a slave, dismissed with costs. Shanley v. Harvey. Vol. ii. p. 126 SPECIFIC PERFORMANCE. 1. An undertaking contained in a letter from A. devisee of real estate to B. a legatee, to pay interest upon her legacy, which was charged upon the estate according to the rate fixed by an order of court, provided B. would join in a sale, held to be upon sufficient con- sideration, it appearing that several expensive suits, in which A. was engaged would thereby be termi- nated, and the estate bettered; and such undertaking not being waived by no notice having been taken of it in a subsequent agreement to sell, a specific performance was de- creed. Griffith v. Sheffield. i. 73 2. Specific performance of marriage articles refused, on the ground of their being inconsistent, uncertain, and unintelligible. Franks v. Mar- tin, i. 309 See Covenants 1. Settlement 2. SPIRITUAL ASCENDANCY. Grant of an annuity fraudulently ob- tained by a person having a spi- ritual ascendancy over a woman, who was under a state of religious delusion, set aside upon principles of public policy. Norton v. ReMy. Vol. ii. p. 286 , SPIRITUAL COURT. Courts of law and equity supervise the acta of the spiritual court, when they are incidental to their own determinations, and therefore if they prove an act inter vivos, they will consider it as void, and coram nonjudice, as much as if that court had proved a will relative to lands only. Pigott v. Janson. i. 469 See Will 1. SPRINGING USE. 1. It is a certain rule of law, that if such a construction can be put upon a limitation as that it may take effect by way of remainder, it shall never take place as a spring- ing use or executory devise; and therefore a limitation in a settle- ment " to trustees to the use of A. the settlor for life, remainder to B. y his intended wife, for life, (except as thereafter excepted,) remainder to the heirs of the body of A., begotten on B., remainder to A. and his heirs, with a proviso, that if A. should die, and leave such issue as aforesaid, without making any provision for such TABLE OF CONTENTS. 419 child or children in his lifetime, the said trustees should stand seised of one moiety, from and after the decease of A., to the use of such child," held a contingent remain- der, and not a springing use, and therefore barred by a fine levied by A. and B. Carwardine v. Car- wardine. Vol. i. p. 27 2. No case of a springing use ever introduced in the middle of a li- mitation, but it always comes in afterwards, and determines the first gift in fee : and whenever it hap- pens to arise, it displaces the first gift, and changes the uses in favour of other persons. lb. 34 STATUTE. See Act of Parliament. STOPPAGE IN TRANSITU. Where consignee becomes insolvent, consignor has a right to stop the goods at any time before they come to his hands. D'Aquila v. Lam- bert, ii. 75 SUBPCENA. See Escheat 13. SUPPLEMENTAL BILL. See Perjury 1. Practice 2. T. TAXES. See Jointure 2. TENANT FOR LIFE. See Renewal 2. Perpetuity 1, 2. Title Deeds 1. TENANT IN COMMON. See Partition 1. TENANT IN TAIL. See Devise 4. TIMBER. See Trustee 7- TITHES. 1. There cannot be prescription in turn decimando against a lay impro* priator ; but it is not necessary to produce the deed of severance, it is sufficient to shew that it existed; and therefore where defendant, and those under whom he claimed, had been upwards of one hundred and thirty years in the pernancy of the tithes, a bill by impropriator i was dismissed. Fanshaw v. Ro- theram. Vol. i. p. 276 2. At common law, no man could avail himself of a discharge from tithes by grant, but by producing it. 76.295 3. The statute of H. 8. is silent as to the manner in which a person must make out his right to tithes against the church or patentees standing in the place of the church ; and only provides for the assw> 430 TABLE OF CONTENTS. ance and recovery of them, like temporal possessions in the king's court. Vol. i. p. 296 4. Whether a tithe be great or small is determined by the nature of it, and not by the mode of cultivation, or the use to which it is applied : and therefore the tithes of beans and pease, though gathered green by the hand for the food of man, are great tithe, and included under the term decimal garbarum. Sims v. Bennett. i. 382 5. Where an agreement having been made between the rector and inha- bitants of a parish, allotting lands in lieu of the ancient glebe, with some addition, in consequence of the rector's losing certain rights of common by inclosure, and also pro- viding an annual pecuniary com- pensation in lieu of tithes, which upon the successor's declining to abide by, an amicable suit was in- stituted in this court, to which the ordinary (but not the patron, who was the king,) was made a party, and the parishioner, agreeing to increase the stipend, a decree was made by consent to ratify the ar- ticles: held that this agreement, though acquiesced under for eighty years (forty of which, however, the rector against whom the decree was made had remained incum- bent,) was not binding as to the pecuniary composition, the patron not having been a party, and the composition having been made only with regard to the past, and not to the future increasing value of the tithes. Attorney-General v. Ckolm. ley. VoL iL p. 903 TITLE-DEEDS. Title-deeds delivered out of court to tenant for life, except when brought into court under an order for safe custody. Webb v. Lord Lymington. i. 8 TRUST. See Appointment 5. Uses and TBU8T8. TRUSTEE. 1. Trustees lending money on per- sonal security, is not of itself such gross neglect as to amount to a breach of trust, and the legatee, and afterwards his assignee, hav- ing acquiesced in such loan, a bill to charge the trustees was dis- missed. Harden v. Parsons, i. 145 2. Trustee can transmit no benefit but his duty to hold for the benefit of all who would have been en- titled if the limitation had not been by way of trust. Burgess v. Wheate. i. 227, per C. J. 3. A trustee cannot by delaying a conveyance, create a benefit for himself. Burgess v. Wheate, i. 238, per eund. TABLE OF CONTENT* 421 4. The transmutation of possession to a trustee conveys to him the legal burthens, and invests him with the legal privileges. Vol. i. p. 251, per C. S. 5. A joint stock company having permitted a transfer of stock under a forged letter of attorney: held that the company, and not the fair purchaser, should bear the loss. Askby v. BlacktvelL ii. 209 & A trustee, whether a private per- son or body corporate, must see to the reality of the authority em- powering him to dispose of the trust money; for if forged, it is in consideration of law and equity a nullity, and the right remains as before. lb. 302 7- Power contained in a will for the devisees for life, when in posses- sion, to cut down timber, as four trustees, or the survivors or sur- vivor of them should assign, allow of, or direct, all the four trustees being dead: held, that the court would execute the trust by refer- ring it to a master to see what tim- ber was fit to be cut down from time to time. Heweit v. Henett. ii. 332 See Attorney and Cubnt 1. TRUST EXECUTORY. 1. Where the assistance of the trus- tees is necessary to complete a limitation, it is sufficient evidence of the testator's intent, that the court should model the limitations, but where they are already de- clared, the court has no authority to alter them* Austen v. Taylor. Voii. p. 368 2. Devise to trustees of money to be laid out in land, and to be settled as counsel should advise, in trust for A. and his issue in tail male to take in succession and priority, and the interest of the money till laid out to be paid to A., his sons, and issue: held, that A. should only have an estate for life in the lands to be purchased, with remainder to his first and other sons, &c. While v. Carter. ii 366 U. USES AND TRUSTS. 1. No instance where equity has con- sidered an estate as not executed at the same time that law would have considered it as executed. i. 35 2. Limitation to trustees to stand seised, and receive rents and pro* fits to the use of A. is an estate executed in A. lb. 36 3. A. being seised in fee et parte pa- ternd, conveys to trustees, in trust for herself, her heirs and assigns, to the intent that she should ap- point, && and for no other use, intent, or purpose whatsoever : A. 483 TABLE OF CONTENTS. dying without appointment, and without heirs ex parte patern& : held, per Lord Keeper, and the Matter of the Rolls, 1st, that the maternal heir was not entitled; 2dly, that, there being a terre- tenant) the crown, claiming by es- cheat, had not a title by subpoena to compel a conveyance from the trustee, the trust being absolutely determined ; no opinion being given upon the right of the trustee : per Lord Mansfield, C. J. 1st, that the heir ex parte maternd was not en- titled: Sdly, that, from the an- alogy between trusts and legal es- tates, the crown was entitled by escheat, but that, if the convey- ance had barred the crown of its right, as between the maternal heir and the trustee, the former was entitled. Burgess v. Wheate. Vol. i. p. 179 4. When once a trust became the object of equity, the same govern- ing principles were observed in trusts as before in uses. lb. 194, per M. R. 5* The analogy between uses and trusts must be confined to those cases where they are considered as distinct from the legal estate, in other cases they both fall with- in the rules of law. lb. 195, per eund. 6. Crown at law not entitled in case of a use, and according to the analogy between trusts inequity, and uses at law, not entitled to a trust in equity. Burgess v. Wheate. Vol. i. p. 199, per eund. 7* A trust is collateral to the land, and created by contract of the party, and therefore one who comes in in the post shall not be liable to it : but an equity of redemption is inherent in the land, and binds all persons in the post or otherwise. i. 206, per eund. 8. Trust of the legal estate can only be co-extensive with the legal es- tate, lb. per eund. 9. A trust cannot be executed where no intent appears to create it, ex- cept by operation of law ; and can- not result by operation of law but for those for whom it might have been declared by the party creat- ing it. lb. 209, per eund* 10. The opposition between uses and trusts does not consist in any ma- terial difference in the essence of the things themselves, but in the difference of the practice of the court of Chancery. Ib.217,perC.J. 11 . That part of the old law of uses which did not allow any relief to be given for or against estates in the post, does not now bind by its authority in the case of trusts. lb. per eund. 12. Where a court of justice takes cognizance, and compels the exe- TABLE OF CONTENTS. 428 cation of trusts in substantial ownership, the trust becomes the mere form of a legal conveyance. Vol. i. p. 218, per eund. 13. In the case of uses before the statute where the confidence was to an intent that could not be exe- cuted, it never was settled what should be done with the estate. i. 219, per eund. 14*. The Jorum where they are ad- judged, the only difference between trusts and legal estates. lb. 223, per eund. 15. Cestui/ que trust actually and ab- solutely seised of the freehold in consideration of this court, and therefore the legal consequence of an actual seisin of the freehold shall follow for the benefit of one in the post. lb. 226, per eund. 16. Limitation of a trust to the lord, failing the heirs of cestui/ que trust, would have been good, because such a limitation would have been good at law, and is implied in the conveyance of every legal fee. lb. 237, per eund. 17* The difference between uses and trusts does not consist in the principles and rules applied to them, but in the extent of the ap- plication of those principles and rules. lb. 248, per C. S. 18. It is too much to say, that be- cause trusts are considered as imi- tating the possession, that there- VOL. II. fore the creation and instrument of trust is a nullity. Vol. i. p. 250, per eund. 19. The creation of a trust cannot affect the right of a third person. lb. 251, per eund. See Declaration of Trust 1. Trustee 2, 3, 4. Trust Exe- cutory 1. USURY. A. agrees to lend B. 1000/., and for that purpose sells 1000/. stock, which being under par, produces only 923/. : he afterwards lends a further sum of 1400/., part of which being sold out in like man- ner, produces only 1132/. 5s., and takes mortgages for the two sums at 5 per cent. ; in the former case, with a covenant to reduce the in- terest to 4 per cent, if paid within one year ; in the latter case, with a power to the borrower to replace the stock within two years. On a bill brought by A. for a foreclo- sure, the whole money having been allowed in the account by the mas- ter, held, the transaction was usu- rious, and that equity would re- lieve though the money had been paid. Moore v. Battie. i. 273 V. VESTING. See Legacy 1. Portions 1, 2, 3. F F 424 TABLE OF CONTENTS. VICAR. See Chapbl of Ease 1. VOLUNTARY AGREEMENT. Court in general will not decree per- formance of. Vol. ii. p. 17^ VOLUNTARY GIFT. 1. Executor advances sums of money to his daughters pendente lite, to two of them on their marriage, to the others as a voluntary gift, and afterwards dies insolvent, having received assets; on a bill by the legatees, the voluntary gifts were considered fraudulent, but those daughters being also legatees, they were permitted to retain in part of their legacies, subject to abate- ment. Partridge v. Gopp. i. 163 2. No man has so absolute a power over his own property, as that he can alienate it when such alienation tends to delay, hinder, or defraud his creditors, unless it be made on good consideration, and bond Jide. , lb. 167 3. By the 13 Eliz. the only considera- tion as to the validity or invalidity of alienations, depends on the in- tent and conduct of the party mak- ing them, and not on the motive with which they are received. lb. 4. Volunteers are, by the statute, made responsible to the creditors of the giver, though not to the giver himself. Vol. i. p. 168 5. Release from one brother to an- other of certain premises that had been devised to him by his father, executed in consequence of a threat to file a bill, and of assurances that a favourable opinion had been given by counsel, set aside in fa- vour of creditors. Peat v. Powell 76.479 See Settlement 1. W. WILL. 1. Testator having bequeathed his personal estate to his wife, with a contingent disposition to any child she might be enceinte with, by an instrument executed in the East Indies during his last illness, em- powers A. and B. to invest any gold dust, &c. which he had in bot- tomry, &c. as they should think most advantageous, and deliver the same over to his wife, or her assigns, she running all risk: held, that this instrument, though it had been proved in the ecclesiastical court, was merely an act inter vivos, and not a revocation of the will. Pigoit v. J an son. lb. 469 2. Bill by an heir at law, for an issue to try the validity of a will made in England, dismissed, partly on the TABLE OF CONTENTS. 425 ground of his acquiescence, both in the ecclesiastical court, and upon a bill to perpetuate testimony, but principally because the lands lay in Pennsylvania. Pike v. Hoare. Vol. ii. p. 182 3. A will of lands lying in the co- lonies fa not triable in Westminster Hall. Vol. ii. p. 184 See Residuary Legatee 1. Re- vocation 1. Spiritual Court 1. THE END. G. WoodUll, Printer, Angel Court, Skinner Street, London. i . . HI: