Between Mary Ann Colyear, Plaintiff; and The Rt. Hon. Martha Sophia, Countess of Mulgrave, Widow, The Hon. Edward Phipps, The Rt. Hon. Thomas Charles, Earl of Portmore, The Governor and Company of The Bank of England, Williams Henry Surman, Andre Libert Romain Viollet, and Harriet Frances, his Wife, John Ambrose Clerk, and Juliana Catherine, his Wife, and Edward Roger, and Eleanor, his Wife, Defendants. (by Bill of Revivor and Supplement.) Between the same Plaintiff, and Jonathan Brundrett, and Frederick Waller, Defendants
| Jurisdiction | England & Wales |
| Judgment Date | 05 August 1836 |
| Date | 05 August 1836 |
| Court | High Court of Chancery |
English Reports Citation: 48 E.R. 559
ROLLS COURT
S. C. 5 L. J. Ch. (N. S.), 335. See In re D' Angibau, 1880, 15 Ch. D, 242; In re Flavell, 1883, 25 Ch. D. 93.
[81] Between mary ann colyear, Plaintiff; and the rt. hon. martha sophia, Countess of Mulgrave, Widow, the hon. edward phipps, the rt. hon. thomas charles, Earl of Portmore, the governor and company of the bank of england, william henry surman, andre libert romain viollet, and harriet frances, his Wife, john ambrose clerk, and juliana catherine, his Wife, and edward roger, and eleanor, his Wife, Defendants. (By Bill of Rew-vor and Supplement.) Between the same Plaintiff, and jonathan brundrett, and frederick waller, Defendants. Mai/ C, 7, August 5, 1836. [S. C. 5 L. J. Ch. (N. S.), 335. See In re D'Amjihau, 1880, 15 Ch. D. 242 ; In re Flavell, 1883, 25 Ch. D. 93.] A father, who had four natural daughters and a legitimate son, entered into an agreement with his son, evidenced by certain deeds, whereby the father covenanted to transfer the sum of £20,000 to a trustee, for the benefit of his four natural daughters, and the son covenanted to pay the debts of the father. The son paid some of the father's debts, and died before the covenant on the part of the father was performed, having by his will given the whole of his property to his father who became the soil's personal representative. A demurrer to a bill filed by one of the natural daughters, and praying to have the agreement executed against the estates of the father and son, was allowed. Where two persons for valuable consideration as between themselves, covenant to do some act for the benefit of a mere stranger, that stranger cannot enforce the covenant against the two, though either of the two might do so against the other. The original bill was filed in the month of October 1834, by the Plaintiff, who was one of the four natural daughters of the Earl of Portmore, against the [82] Countess of Mulgrave, and the Hon. Edward Phipps, the representatives of the Earl of Mulgrave, who was the surviving trustee under the settlement, made on the marriage of the Earl of Portmore, against the Earl of Portmore, the Plaintiff's father ; her three sisters with their husbands, and other parties ; and it prayed that the Plaintiff' and the Defendants, her three sisters, might be declared to be entitled, under a deed dated the 19th of August 1818, to a lien on the personal estate of Brownlow Charles Colyear, deceased, to the extent of £20,000 ; and that the Defendant, the Earl of Portmore, might admit assets sufficient to answer that lien, or that the usual accounts might be taken of Brownlow Charles Colyear's personal estate, and that it might be declared that the sum of £19,350, 5s. 9d. 3J per cent. Reduced annuities, in the pleadings mentioned, formed part of the fund on which the Plaintiff and the Defendants, her sisters, had such lien ; and that the deficiency of the sum of £20,000 might be paid by the Earl of Portmore, out of the assets of Brownlow Charles Colyear, with the consequential directions. The Earl of Portmore answered the bill, but died on the 18th of January 1835. A bill of revivor and supplement was filed against Jonathan Brundrett and Frederick Waller, his executors, and the original bill was amended. The pleadings extended to an enormous bulk and it was ultimately arranged that a demurrer should be filed to the amended bill and bill of revivor, as the least expensive mode of determining the question between the parties. In pursuance of this arrangement, the Defendants, Jonathan Brundrett and William Frederick Waller, filed a general demurrer to the 560 COLYEAR V. THE COUNTESS OF MULGRAVE 2 KEEN 83. bill for want of equity. The facts stated by the bill, so far as they are material, and have reference to the questions argued upon this demurrer, were as follows:- [83] In the year 1810, Thomas Charles Viscount Milsingtoii was, under his marriage settlement, entitled in possession to a rent charge of £500 a year, to continue during the joint lives of himself and his father; and to the interest of £5000, and also of £19,350, 5s. 9d. 4 per cent Bank annuities, to continue for his own life; and expectant upon the death of his father, he was entitled for his life to the rents and profits of certain freehold and leasehold estates, and to the dividends of £38,483, 9s. 3 per cent. Bank annuities. His wife had died, having left an only child, Brownlow Charles Colyear, then an infant, who under the same settlement was entitled, subject to his father's life interest, to the £5000 and £19,350, 5s. 9d. 4 per cent, annuities; and, subject to the life interests of his father and grandfather, Brownlow Charles Colyear was entitled to the £38,483, 9s. 3 per cent, annuities, and to certain estates for the interest limited to him by the settlement. On the 14th of March 1810, Lord Milsington, by deed, and for some consideration, assigned to Alexander Bruce the rent charge of £500 a year, his life interest in the £5000, and £19,350, 5s. 9d. 4 per cent, annuities, and his expectant life interest in the £38,483, 9s. 3 per cent, consolidated Bank annuities. Lord Milsington had seven natural children, the Plaintiff in the present suit, and three other daughters, and three sons. Mr. Colyear, his only legitimate child, attained his age of twenty-one years on the 4th of August 1817, and in the following month made a will, by which ha gave the whole of his property to Lord Milsington, his father. [84] Lord Milsington was very much in debt, and Mr. Colyear, his son, had considerable property, which he derived from his maternal grandfather, the Duke of Ancaster. In August 1818, Lord Milsington and Mr. Colyear entered into the arrangement under which the Plaintiff claimed relief. Lord Milsington and Mr. Colyear, at that time, concurred in desiring to make a provision for the natural daughters of Lord Milsington, and for the payment of Lord Milsington's debts. The intention was to make the sum of £19,350, 5s. 9d. 4 per cent. Bank annuities, which was comprised in Lord Milsington's marriage settlement, and the interest in which had been already assigned to Mr. Bruce, available as a provision for the natural...
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