Thursday, March 20, 2014
Reports of Cases Argued and Determined in the High Court of Chancery ..., Part 2 By Charles Ambler
Lancaster, York, Surrey, Warwick, and Stafford, or elsewhere inEngland, in possession, reversion, or remainder, to Duke John for life, subject to the condition therein-after mentioned, with remainder to Lord Montague for life, with remainder to the first and other sons of Lord Montague in tail male, with remainder tothe second and other sons of Duke John in tail male, with remainder to the daughters of Duk« John in tail, as tenants in common, with cross remainders, with remainder to the heirs at lawof Duke Ralph. He than gave the residue of his personal estate to LordHalifax, Lord Somers, Edmund Dummer, and Thomas Dummer, in trust forthe sole use of his son Duke John, in case he should live to 22; and appointed them executors till his son should attain 22; and after his attaining that age, he made his son Duke John sole executor, but in case his son should die before 22, then his executors were to remain executors in trust, to lay out his personal estate in land, and settle the same to the uses he had devised his real estates. He then devises an exchequer annuity of1,000/. a-year, which was granted for a term of years, to his grandson LordMontague, for so many years as he should live, and after his death, in trust for such person as, at the time of Lord Montague's death, should be heir male of Lord Montague's body, to take lands of inheritance from him by course of descent, for the residue of the term; and in case there should beno such heir male, then in trust for such person as should be heir male ofthe body of Duke John, to take lands by course of descent, for the residueof the term; and in case there should be no such person as should be such heir male, then in trust for Duke John for life, with remainder to such person and persons as should be entitled, by virtue of his said will, to therents, issues, and profits of the real estates thereby devised; provided, and he declares, that all the estates and trusts before devised to or in trust for his son Duke John, were upon the condition and limitation following, that is, in case his son should, within 12 calendar months next after hisdecease, if he should then be of the age of 21, or otherwise within 12months after he should attain 21, suffer a recover?/ of the Warwickshireestate; and should within three months after, declare the use to himself forlife, with remainder to trustees to preserve contingent remaiders, withremainder to Lord Montague, and his issue male, in strict settlement, with remainder to the other sons of Duke John in tail male, with remainder to such uses as he had devised his real estate; *but if he should neglect orrefuse to suffer such recovery, and declare such uses, within such time, andin such manner as aforesaid, then he declared, that the gift or devise of hisreal estate to his son Duke John, should cease and be void, and should goover, according to the limitations thereof therein before made, as if his son was really dead; and the residue of his personal estate, therein before given to his executors, in trust, should be sold by his executors, as if his son had died under 22; and the money laid out and settled as before directed, omitting the use and estate of his son Duke John, or as near to the same uses as deaths of parties in the mean time would admit. Duke John, as soon as he came of age, in YJ11, after the death of his father, suffered a recoveryof the Warwickshire estate, and declared the uses to Lord Somers, LordHalifax, Edmund and Thomas Dummer, and their heirs, in trust to settle and dispose of the premises in such manner as Duke John should by deed or will appoint, and for want of appointment, in trust for Duke John, his heirs and assigns.
* Vide Case in House of Lords, plying with this condition. (1)
D. John not entitled for want of com
(1) See 3 Bro. P. C. edit. Tom. 277. The House of Lords affirmedthe decree as far as related to the Exchequer annuity, and reversedthe residue, and declared that Duke John was not entitled to the benefit ofany devise or bequest, by the will of his father Ralph, from three months after he suffered the recovery, the said John never having complied withthe condition annexed thereto, by re-settling the Warwickihire estate, and that the same ought to go in such manner, and to such persons as limited and directed, by the said proviso, and that said Lord and Lady Beaulieuought to have a satisfaction, out of the assets real and personal of the said Duke John, for what the said Lady Beaulieu would havs been entitled to, had the proviso, in the said will, been taken advantage of and effectually carried into execution.' This judgment of the
House of Lords has been frequently
disapproved of. Lord Eldon, when Soli-
citor-General, said, arguendo in the case
of Wake v. Wake, 1 Ves. Jun. 336.
that he had heard Lord Thurlow Shj,
over and over, "That that case on the
"will of the Duke of Montague shall
u never bind any other, where there is
"the least difference between them."
See also Freke v. Barrington, 3 Bro.
281. Bulterwicke v. Broadhurst, 1
Ves. Jun. 172. S. C. 3Bro.CC. 88.
where Lord Rosslyn said, "That all
"which was decided, by the case, was,
"that, under circumstances, election may
"continue till the whole affair is wound
"up, and the trusts executed." See
Simpson v. Vickers, 14 Ves. 347. Dil-
lon v. Parker, 1 Swanst. 359. and the
able notes on the law of election genet-
ally, and the cases collected on the sub-
ject there, by the learned editor.
See the next case, post, and Forrester
v. Colten, ante, 388. and Sugden on
He afterwards, from time to time, as he had occasion, made mortgages of the Warwickshire estate in fee and for years; in several of them the trustees joined; all of which have been paid off. except two, for 23,000/. and 6,000/.
Upon attaining 22, Duke John proved his father's will; settled accounts with the trustees, and received the balance; redeemed jewels which were pledged by Duke Ralph to the Bank; paid debts, and took assignments of some of the securities to himself; compounded a large debt which was due from the family of theMonks; sold the Exchequer annuity for 25,000/.; and received thepersonal estate of Duke Ralph, and mixed it with his own, and disposed of it without keeping any account; and it was argued to be impossible at this time to take an account of it.
Duke John also received the rents and profits of the real estatedevised; brought a bill in Chancery against one Colley, who was steward ofpart of the devised and settled estates, in which he stated himself to be entitled to those estates by descent or otherwise; procured an Act ofParliament in 1716, for sale of part of the settled and devised estates, and to settle other estates in the stead. Afterwards a bill was brought, to havethe surplus money laid out; which was directed as to so much as arose by sale of the devised estates, to the uses in Duke Ralph's will. He obtained another Act of Parliament in 1722, in confirmation of articles entered into on the marriage of his daughter Isabella to the Duke of Manchester; in which it is recited, that his daughter would be entitled to Montague-house,which was part of the devised estate, after the death of the Duke, and failure of issue male; and the estates settled upon the marriage are to theDuke and Duchess of Manchester, after the death of Duke Johny and failureof his issue male; and in the recital of both the Acts the devised estates are called his estates.
Lord Montague died in the life-time of Duke John unmarried; and about six years after his death, Duke John had another son, George, who died soon afterwards; and at his death Duke John had only two children, viz. the Duchess of Manchester, then married to Lord Beaulieu, her second husband, and the defendant, Lady Cardigan.
Duke John made his will in 1749, and devised all his estates which he or any person or persons in trust for him was or were seised of, and which were in his power to dispose ef, except certain estates in Kent and Bucks, to trustees for 99 years, by rents and profits, or by mortgage, to pay his debts, legacies, and funeral expences; with remainder to his first and other sons in tail; with remainder to Lady Cardigan in strict settlement.