Between the Right Hon. Richard Earl of Glengal, and Margaret Lauretta, his Wife, Plaingiffs; and Benjamin Barnard, The Hon. Edward Thynne, commonly called Lord Edward Thynne, and Elizabeth, his Wife, The Hon. Henry Thynne, commonly called Lord Henry Thynne, The Hon. and Rev. John Thynne, Clerk, commonly called Lord John Thynne, William Astell, Margaret Mellish, Widow, and William Tooke, Defendants. (by Supplemental Bill.) Between the same Plaintiffs, and Lady Margaret Butler, Infant Daughter of the Plaintiffs, Defendant
| Jurisdiction | England & Wales |
| Judgment Date | 07 November 1836 |
| Date | 07 November 1836 |
| Court | High Court of Chancery |
English Reports Citation: 48 E.R. 503
ROLLS COURT
S. C. 6 L. J. Ch. (N.S.), 25 Affirmed on appeal, sub nom. Thynne v. Glengal, 1848, 2 H. L. C. 131; 9 E. R. 1042. On question as to portions, see Campbell v. Campbell, 1866, L. R. 1 Eq. 387; Chickester v. Coventry, 1867, L. R. 2 H. L. 83; Dawson v. Dawson, 1867, L. R. 4 Eq. 512; Nevin v. Drysdale, 1867, L. R. 4 Eq. 519; Russell v. St. Aubyn, 1876, 2 Ch. D. 405; In re Tussaud's Estate, 1878, 9 Ch. D. 367. On point as to Statute of Frauds, see Murphy v. Boese, 1875, L. R. 10 Ex. 131.
[769] Between the right hon. richard earl of glengal, and margaret lauretta, his Wife, Plainti/s ; and benjamin barnard, the hon. edward thynne, commonly called lord edward thynne, and elizabeth, his Wife, the hon. henry thynne, commonly called lord henry thynne, the hon. and eev. john thynne, Clerk, commonly called lord john thynne, william astell, margaret mellihh, Widow, and willcam tooke, Defendants. (By Supple-mental Bill.) Between the same Plaintiffs, and lady margaret butler, Infant Daughter of the Plaintiffs, Defendant. June 27, 28, Nov. 7, 1836. U(ts q). \ [S. C. 6 L. J. Ch. (N. S.), 25. Affirmed on appeal, sub nom. Thynne v. Glengal, 1848, 2 H. L. C. 131 ; 9 E. R. 1042. On question as to portions, see Campbell v. Campbell, 1866, L. R. 1 Eq. 387 ; ChiAester v. Cooentry, 1867, L. R. 2 H. L. 83 ; Dawson v. Dawsm, 1867, L. R. 4 Eq. 512 ; Nevin \. Drysdale, 1867, L. R. 4 Eq. 519 ; Russell v. St. Aubyn, 1876, 2 Ch. D. 405 ; In re Tussaiul's Estate, 1878, 9 Ch. D. 367. On point as to Statute of Frauds, see Murphy v. Boese, 1875, L. R. 10 Ex. 131.] A. having invested in stock a sum of money, in pursuance of a settlement, by way of portion for one of his daughters, and having given a bond for the payment of a further sum at his decease, entered into an agreement with B. to make a provision for his unmarried daughter, on her marriage with B. on a basis of equality with the provision made for his married daughter. A memorandum of the terms of the agreement (in which some variations were afterwards made by the parties) was 504 THE EARL OF GLENGAL V. BARNARD 1 KEEN 770. written at the direction of A., by A.'s solicitor, in the presence and with the approbation of B.; and A. gave instructions to his solicitor to prepare a settlement in conformity with the memorandum, subject to the variations, but he died before such settlement was executed, having made a will, by which he gave a share of the residue of his estate to his married daughter. B. married the daughter of the testator, and performed his part of the agreement comprised in the memorandum : and on a bill filed by him and his wife claiming the portion agreed to be settled against the testator's estate, it was held, first, that the memorandum was not a binding agreement within the Statute of Frauds; secondly, that the share of the residue, given by the will to the daughter married in the testator's lifetime, was a satisfaction of that part of her portion which was secured by bond. The bill was filed by the Earl and Countess of Glengal, against the above-named Defendants, to have the trusts of the will of the testator William Hellish, carried [770] into execution under the direction of the Court; and it prayed, in addition to the usual accounts, a declaration that, under the circumstances in the bill mentioned, the sum of £100,000 3 per cent, reduced Bank annuities, which, it was alleged, was agreed by the testator in his lifetime to be secured by his bond and to be settled on the countess and her children, now constituted a debt against his estate, and that the same ought to be paid accordingly ; and that the same might be raised out of the testator's personal estate, and might be settled and assured as the Court might direct, for the separate use of the countess, and for the benefit of herself and her children, upon the same or for the like trusts as were stipulated for, and agreed upon, between the earl and the testator, in contemplation of the marriage between the Plaintiffs. But in case the Court should be of opinion that the Plaintiffs were not entitled to have the said sum of £100,000 3 per cent. Reduced annuities so raised and paid, then the bill prayed a declaration that the provision, made by the testator in his will for his daughter Lady Edward Thynne and her children, was a satisfaction for the bond in the bill mentioned to be dated the 8th of July 1830. It appeared by the bill that, in the year 1830, the testator, William Mellish, had two daughters, Elizabeth and Margaret Lauretta; and that a treaty of marriage having, with hig consent, been entered into between Elizabeth and Lord Edward Thynne, a son of the Marquis of Bath, it was agreed between these parties and their fathers, that the Marquis of Bath, on his part, should provide £10,000 to be made the subject of a settlement, and that Mr, Mellish should immediately transfer to trustees for settlement, £33,333, 6s. 8d. 3 per cent, consolidated Bank annuities, and should, during his life, pay to the trustees an annual sum of £2000, and cove-[771]-nant for the transfer by his executors upon his decease (if Elizabeth, or any child of the marriage, should then be living), to the trustees for settlement, of a further sum of £66,666, 13s. 4d. 3 per cent, consolidated Bank annuities. In conformity with this agreement, the Marquis of Bath, by a mortgage of certain estates in Ireland, secured the sum of £10,000 to the Defendants, Lord Henry Thynne, Lord John Thynne, William Astell, and Benjamin Bernard, the intended trustees of the settlement; and Mr. Mellish transferred to the same persons the £33,333, 6s. 8d. 3 per cent, consolidated Bank annuities, and executed to them a bond, dated the 8th of July 1830, to secure the payment by himself of the £2000 a year during his life, and the transfer by his heirs or executors of the £66,666, 13s. 4d. 3 per cent, consolidated Bank annuities, upon his decease, in case his daughter Elizabeth, or any child of the marriage, should be then living. By an indenture of settlement, dated the 8th of July 1830, and made between the Marquis of Bath, of the first part, Lord Edward Thynne of the second part, William Mellish, and his daughter Elizabeth, of the third part, and the four persons named as trustees, of the fourth part, it was declared, that the trustees should stand possessed of the £10,000, and of the £33,333, 6s. 8d. 3 per cent, consolidated Bank annuities, on trust to pay the interest and dividends to the intended wife, for her life ; and after the death of the survivor of the intended husband and wife, in trust for all, or one or more of the children of the marriage, as the husband and wife should, during their joint lives, by deed appoint; and in default of such appointment, as the survivor of them should by deed or will appoint; and in default of any appointment, in trust 1 KEEN 772. THE EARL OF GLENGAL V. BARNARD 505 for all the children, who being [772] sons, should attain the age of twenty-one, or who, being daughters, should attain that age, or marry with the consent of their parents or guardians. And it was further declared that the trustees were to stand possessed of the annuity of £2000 a year, and of the £66,666, 13s. 4d. 3 per cent. consolidated Bank annuities, secured by Mr. Mellish's bond, in trust (during the joint lives of Lord Edward Thynne and Elizabeth) to pay the annuity and the dividends of the stock to the separate use of Elizabeth, free from the debts and control of her husband, and without power of anticipation ; and after the death of Lord Edward Thynne, if he should die in the lifetime of Elizabeth, to Elizabeth for her life, and after her death (whether Lord Edward Thynne should be then living or not), the annuity and dividends of the stock were to be held in trust for the children of the marriage, as the parents might jointly appoint; and in default of a joint appointment for all the children who, being sons, should attain twenty-one or being daughters, should attain that age, or marry, with such consent as aforesaid, equally. And it was provided that, if there should be no children of the marriage, or none who should acquire vested interests, then the £10,000 should after the decease of the survivor of Lord Edward Thynne and Elizabeth, remain in trust for Lord Edward Thynne, his executors and administrators, for his and their absolute use and benefit; and the £33,333, 6s. 8d. 3 per cent, consolidated Bank annuities, and the annuity of £2000, and the £66,666, 13s. 4d. 3 per cent. Bank annuities should, whether Lord Edward Thynne should or should not be then living, remain in trust for Mr. Mellish, his executors, administrators, and assigns, for his and their absolute use and benefit. The marriage took effect on the same 8th day of July 1830. [773] William Mellish made his will, dated the 2d of November 1833, as follows:- " I give and devise all my real estate, whatsoever and wheresoever, unto William Astell and Benjamin Barnard, their heirs and assigns for ever, upon the following trusts :-As to my freehold and copyhold estates at Woodford and elsewhere in the county of Essex, my freehold estate in the parish of St. George in the East, Middlesex, my freehold house in Church Eow, Hampsteacl, and my land at Eamsay, Huntingdonshire, in trust to pay the rents and profits thereof to my daughter Lady Edward Thynne, for her own sole and separate use...
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