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1783.

S. C.
1 Cox, 38.

Lords Commis.
sioners, Lord
Loughborough,
Ashhurst, and
Hotham.

Lincoln's-Inn
Hall, July 16.

Personalty given
to trustees to pay

dividends, &c. to

R. at 28, or marriage with consent, and in " case any of the children should die before their shares became due, the share to go to the rest of the children, and their issue per stirpes.-R. married without consent, had a child since dead, and died under twenty eight-held the portion never

vested, but the testator having five children, held that onefifth part of it vested in her

child, and it was accordingly decreed to the

father as representative.

HEMMINGS v. MUNKLEY and others.

WILLIAM CLUTSOM, by his will, gave-five sixteenth parts of the residue of his personal estate to trustees" to lay out the same, and to pay the dividends, &c. to his daughter Rachael, on her attaining her age of twenty-eight years, or day of marriage, which shall first happen, provided his daughter should marry with the approbation of his said executors, or such of them as should be then living." He gave the eleven-sixteenth parts among his other four children; and in case either of his sons or daughters should die before his, her, or their share or shares should become payable, then the part or share, parts or shares of him, her, or them so dying, should go and be paid among all the rest of his children, who should then be living, and the issue of a deceased child or children, (if any) per stirpes, and not per capita, at the same time as their original shares would become due.

Rachael Clutsom married James Curley, one of the defendants, without the consent of the executors, and had a child (to whom Curley is administrator) and died under twenty-eight.

Mr. Kenyon for the plaintiffs, insisted-the portion never vested in Rachael, she marrying without consent, and not attaining twentyeight years of age.

Mr. Scott argued for the defendant, the husband, who claimed as administrator both to her and the child-that it vested on the marriage notwithstanding the proviso, which was only in terrorem, and cited Underwood v. Morris, 2 Atk. 184, and that whether the condition be precedent or subsequent, it will not prevent the legacy vesting, unless it be given over.

Lord Loughborough doubted the authority of the case, and decreed that it did not vest; but there being five children of the testator, he held the infant child of Rachael to be entitled to onefifth of the legacy, under the devise over: (as being "the issue of a deceased child,") and decreed the same to her father, in her right (a).

(a) Vide Scott v. Tyler, post, vol. ii. 431.

1

Earl

Earl of LEICESTER V. PERRY.

BILL for discovery and relief, and to prevent the defendant from setting up a legal title in a trustee, as a defence to a writ of right brought by the plaintiff, to try the title of Penshurst park and other estates. The defendant pleaded that the writ of right had been tried and determined against the plaintiff, which was held a good plea to further discovery (a).

(a) The following account of this case is given by Lord Redesdale in his last edition of his valuable Treatise. p. 206, The remarks subjoined by his Lordship are peculiarly worthy of attention. The bill was brought by a person claiming to be a son and heir of Joscelin, Earl of Leicester; and alledged that the Earl, being tenant in tail of estates, had suffered a recovery, and had declared the use to himself and a trustee in fee; and that the plaintiff had brought a writ of right to recover the lands, but the defendant had possession of the title deeds, and intended to set up the legal estate which was vested in the trustee; and prayed a discovery of the deeds, and that the defendant might be restrained from setting up the estate in the trustee : the defendant pleaded, as to the discovery of the deeds and relief, judgment in her favour in the writ of right; and averred that the title in the trustee, which the bill sought to have removed,

had not been given in evidence, and the plea was allowed. In this case his Lordship observes, the bill was brought before the trial in the writ of right, and the plaintiff had proceeded to trial without the discovery and relief sought by his bill for the purpose of the trial. The plea was subsequent to the judgment. It may be doubted, therefore, whether the averment that the title in the trustee had not been given in evidence on the trial of the writ of right was necessary, as the judgment was a bar, as a release subsequent to the filing of the bill would have been; and if the plaintiff could have avoided the effect of the judgment because the title in the trustee had been given in evidence, it should seem that that fact, together with the fact of the judgment, ought to have been brought before the Court by another bill in the nature of a bill for a new trial, either as a supplemental bill, or as an original bill, the former bill being dismissed.

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1783.

Lincoln's-Inn Hall, July 26. Lords Commissioners, Ashhurst and Hotham.

In the marriage

settlement, by
which a life estate

was given to the
wife, there was a
power to raise
£10,000 for
younger children;
the settlor, by

will (reciting that

he had made no

portions of

Sir JOHN BORLASE WARREN, CAROLINE his

Wife, and the Trustees of his Marriage Settle-Plaintiffs.
ment、

ARNOLD WARREN, AUGUSTUS PARKINS, and

FRANCES his Wife, which ARNOLD and

FRANCES are younger Children of JOHN Defendants (a).
WARREN the Testator.-FRANCES HURST

the surviving Trustee of the Term, and others

JOHN WARREN, Esq. father of the plaintiff, Sir John Borlase Warren, by indenture of lease and release, after marriage, dated 1st and 2d July, 1754, conveyed his estate to trustees, to the use of himself for life, remainder to trustees to preserve contingent remainders; remainder to his wife for life, remainder to trustees for a term, to raise £10,000 for younger children: remainder to his eldest son in tail; remainder over to other sons, &c.-In the settlement was a power reserved to him to settlement on the raise money, but subject to the wife's life estate, and the provision wife) provided for the children; and also a proviso, that in case he should, in £5,000, if [306] his life-time, give to any of his younger children any sums of but one younger money towards his or their portions and advancement, and declare child, £2,000 the same by writing, to be in part of his or their portions, each if more. There being two they should go pro tanto, in satisfaction thereof.-By his will, 14th of November, 1758, reciting that he had made no provision for his wife by settlement or otherwise, he declared it to be his will that the trustees should pay her £600 per annum for life, in bar of dower, and if he should have one younger child only, they should raise £5,000 for such one child, if more £2,000 each, which he charged on his personal estate, and in default thereof upon the settled estate. He died in 1763, leaving plaintiff his eldest son, and two of the defendants his younger children. The prayer of the bill was to declare the will well proved, and that the two younger children should be declared to be entitled to only one of the two provisions, and that upon payment to them of £5,000 each, Hurst should be decreed to assign the term.

younger children,
decree that this
provision by the
will is in part
satisfaction of the
portion by settle-
ment, and only
£10,000 shall be
raised.

This cause was argued before the late Lord Chancellor on the 11th, 12th, and 14th June, 1782.

Mr. Mansfield for the plaintiffs.-The younger children set up a claim to both the provisions. The testator, in making the provision by will, had forgotten the settlement. This appears clearly, for he gives his son exactly the same interest in the estate he had by the settlement; but recites that he had made no provision for

(a) The facts of this case are much more fully stated, 1 Cox, 41.

his wife, for whom in fact he had provided. He orders the interest of the £2,000 to be applied by way of maintenance, and for the education of the children. He had no estates but what were settled. There was a power in the settlement to raise money, without which there would have been no fund out of which to raise the charges; and that power was subject to the provisions for the wife and children. In* Hartop v. Whitmore, 1 P. W. 681, a less sum advanced in the life-time, was held a satisfaction. In Thomas v. Keymish, 2 Vern. 348, in a charge on certain lands by marriage settlement, and afterwards an equal portion charged on other lands, this was held a satisfaction.-This case is stronger against double portions than any other.

Mr. Hardinge, on the same side, cited Lee v. Cox & D'Aranda, 3 Atk. 519. Copley v. Copley, 1 P. W. 147. Rawlins v. Powel, ib. 297. Clark v. Sewell, 1 Atk. 96. † Ackworth v. Ackworth, 19th July, 1773. Jesson v. Jesson, 2 Vern. 255.

Mr. Attorney-General, for the younger children.-The portions must be accumulative; the intent certainly is not clearly expressed, but it appears from the state of the family: he was a man of very large property. As to the execution of the power, Mr. Mansfield admits it would be good if the children were unprovided for, but a court of equity goes further, and will hold it well executed for younger children, unless it goes to the disherison of the heir at law, the same rule prevailing as in the case of supplying surrenders. The will here is within the limitation of the power. Though in this case there is not a valuable consideration, it is sufficient to its

This case is very inaccurately stated in 1 P. W. and although more correctly, yet imperfectly, in Precedents in Chancery 541; the words of the will, as taken from the record, were as follow:-I further will, devise, give and bequeath "to my daughter Dorothy Whitmore £300, if she should be then living and un“married, or married by and with her said mother's full consent, first had and "obtained in writing, but if married, when it is appointed to be paid her, and "that without her mother's full consent first had and obtained in writing, then "and in such case, 'I hereby will and bequeath her only £200, and that to be "paid her at the age of twenty-three years," and made his wife (the defendant) executrix. The daughter married Young the bankrupt, in the life of the father, without consent (though after a treaty and offer of £200 portion, which had been refused); the husband after marriage applied for her fortune; the father offered him £200, and the defendant Sarah said, if she survived her husband, and had it in her power, she would give her another £100. The husband would not then accept it, but afterwards wrote a letter for it, and it was paid to Flemming for his use, who gave a receipt for it. Young became a bankrupt, and the plaintiff was his assignee, and filed a bill for the legacy.-Bill dismissed.

↑ Ackworth v. Ackworth.-Before marriage, a sum of money, partly belonging to the husband, partly to the wife, was settled to the use of the husband for life; remainder to the wife for life, remainder to the children, to be equally divided among them. There were several children, and the money amounted to only £2,400 among them. The father afterwards made his will, and gave each of the children £2,000, and the residue of his estate among them. Lord Bathurst decreed, that what they took by the will should be in lieu of their portions under the settlement.

1783.

WARREN

v.

WARREN.

[ 307 ]

1783.

WARREN

2.

WARREN.

[308]

[ 809 ]

being a good execution of the power, that it is for a person having a meritorious consideration. When he made his will his fortune was not diminished, there was no reason therefore to diminish the portions of the younger children. There are several cases where portions being to be raised by a settlement, and the money is afterwards paid eo nomine, the settlement has been held to be satisfied; but those cases do not apply to this; £10,000 was to be raised by the settlement, £4,000 by the will, how can this be a satisfaction? If it was a debt being less, it would be no satisfaction; so held in Rawlins v. Powel, that if the second portion is larger, it shall be a satisfaction. It follows, that if the second portion be not as great, or greater than the former, it is not a satisfaction. As to his having forgotten the provision; he recites, that he had not provided for the wife; he might have forgotten the provision for the wife, without having forgotten that for the children, there are no such introductory words to that clause. The interest of the £4,000 is to be paid towards the education and maintenance ;-he was conscions this was not sufficient, but must be supplied from elsewhere, which could only be from the settled fortunes. As to Lord Hardwicke's language, that it is hard a party should take two portions, where one only is intended; it appears by Shudal v. Jekyll, 2 Atk. 516, that it does not apply, where the intent is to give both.

Lord Chancellor. A great number of cases have been cited to shew that the Court leans against double portions: but I have not found that it would do as a distinct rule, that where a parent has made a provision by will for a child, whom he has afterwards provided for in marriage, it is primâ facie a satisfaction. If it is so primâ facie, the Court should on all occasions examine whether there be ground enough to repel the presumption. Several of the cases appear to be repugnant to the rule. What is there to shew the extent of the parent's bounty? It would be difficult to reconcile Thomas v. Keymish, as reported by Freeman (vol. ii. 207.) If the rule is differently laid down, it must be subject to exceptions. It is important to consider the rule, because if there be no rule, the question will be, whether the presumption that he had forgotten the settlement will be sufficient. If there be a rule, it is much fortified by the apparent forgetfulness; but, without the rule, it is difficult to say, he did not mean it accumulatively. Suppose there to be such a rule, there is another question of some consequence, whether parties have not a right to contract in contradiction to it. Here they have so contracted, if he shall advance portions in his life-time, and guard it by writing. It is hard to say, that if he had advanced money without such a declaration, that he should not give it augmentatively. The argument is, that this is by will not in his life-time. It is not in the terms of the deed to be sure. Being a provision it might be held, that unless he guarded it by writing it

would

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