Butler & Anne Ux' v Duncomb
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1718 |
| Date | 01 January 1718 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 466
LORD CHANCELLOR PARKER.
Case 130.-butler & anne Ux' versus duncomb. [1718.] Lord Chancellor Parker, 2 Vern. 760; 10 Mod. 433; 1 Eq. Ca. Ab. 339, pi. 6. Term created for daughters' portions, commencing after the death of the father and mother, upon trust to raise the portions from and after the commencement of the term. Father dies, leaving a daughter. Decreed the portion is vested, but not raiseable during the life of the mother. Upon the marriage of George Duncomb with Mary, one of the daughters of the late Lord 0. J. Pollexfen, the defendant George Duncomb the father covenanted to settle lands in the articles mentioned (being 400 a year) on George Duncomb the son for life, remainder to Mary his intended wife for life, remainder to the first and every other son of the marriage in tail male, remainder to trustees for five hundred years, upon the trust therein mentioned, remainder to the use of the defendant George Duncomb in fee. The trust of the five hundred years' term was declared to be. that the trustees should, from and after the commencement of the term, raise portions for the younger children of the mar-[449]~riage, viz. if but one younger child, then 3000, if more, 4000, to be raised by the rents and profits, or by sale, demise, or mortgage, and payable at twenty-one or marriage. The marriage took effect, and there was issue a daughter only (the plaintiff Anne), and George the husband died. Afterwards, pursuant to the articles and a decree in this court, the defendant George Duncomb settles the same premisses (being 400 per annum) on his daughter-in-law Mary for life, remainder to trustees for 500 years, the reversion to the defendant George Duncomb himself in fee. The trust of the five hundred years' term is (as before), that the trustees should, from and after the commencement of the term, by rents or profits, sale, demise, or mortgage, raise 3000 to be paid to the plaintiff Anne at her age of twenty-one or marriage ; but there is no provison for maintenance. The plaintiff John Butler, who was but a mercer in Guildford, and of mean circumstances, by stealth and bribery prevails with the plaintiff Anne (when but fifteen, and without the consent of any of her relations) to marry him, and with her brings this bill for the portion. It was urged for the plaintiff, that though the man had been in fault, yet this was now as the wife's suit for her portion, in which the husband joined but for conformity; 1 P. WMS. 450. BUTLER V. DOTCOMS 467 and therefore his indirect practices in procuring the marriage were out of the case. Quod cur' concessit. Next it was insisted, that the 500 years' term was vested in [450] the trustees, presently, on sealing the deed; and was assignable and saleable ; and that a provision for a portion was to be favoured; so that if it could be any ways consistent with the deed, it should be paid at such time as there was occasion for it, and not wait until the death of the parent the mother, who being now but forty-three years of age, the daughter might, at that rate, be sixty years of age, before her portion would be payable. That though the words were, that the trustees from and after the commencement of the term should raise the portion, yet (it was said) there was a legal, and an equitable commencement of the term; it was plain there was an estate of the term subsisting, by which the portion could be raised, and equity would call for it, when there was most occasion, which was upon the daughter's marriage ; and when the payment by express words was appointed to be at the daughter's age of twenty-one or marriage, the other words inconsistent with these, should be rejected as repugnant; that whenever it should be raised, it must carry...
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