Countess Dowager of Shelburne and John Hamilton Fitzmaurice, an Infant, only Son of the Honourable Thomas Fitzmaurice and Lady Mary his Wife (two of Defendants), Plaintiffs; Morough Earl of Inchiquin, and Mary Countess of Orkney and Inchiquin his Wife; and said Thomas Fitzmaurice and Lady Mary his Wife, and Others, Defendants
| Jurisdiction | England & Wales |
| Judgment Date | 03 February 1784 |
| Date | 03 February 1784 |
| Court | High Court of Chancery |
English Reports Citation: 28 E.R. 1166
HIGH COURT OF CHANCERY
Vide S. C. on the Appeal, 5 Bro. P. C. 166, octavo ed.
[338] hilary term, 24 geo. 3, 1784. Countess Dowager of shelburne and john hamilton fitzmaurice, an Infant, only Son of the Honourable thomas fitzmaurice and Lady mary his Wife (two of Defendants), Plaintiffs; morough Earl of inchiquin, and mary Countess of orkney and inchiquin his Wife; and said thomas fitzmaurice and Lady mary his Wife, and Others, Defendants. [3 Feb. 1784.] [Vide S. G. on the Appeal, 5 Bro. P. C. 166, octavo ed.~\-Lady Mary Fitzmaurice having joined her father, the Earl of Inchiquin, in raising 24,000 to pay his debts ; afterwards, upon her marriage, a settlement being made, by which 30,000 was to be raised for the payment of the Earl of Inchiquin's debts.-It was determined by the Court, and affirmed in Parliament, that the 24,000 should be taken as part of the 30,000, and not raised beyond it. The late Earl of Shelburne, by his will, dated 5th of April 1756, gave all his lands both in England and in Ireland, to plaintiff Mary Countess of Shelburne, his wife, for her life, in case she did not marry again; and after her death unto all or any of such one, or more, of his the testator's children, or grand-children, for such estates and interests, and in such shares and proportions, &c., as the plaintiff should by deed or will appoint: and in default of such appointment to his second son, the [339] defendant Thomas Fitzmaurice, in fee.-On the marriage of Lord Inchiquin with Lady . Orkney, several estates in Oxfordshire of the said Lord Inchiquin, of the yearly value of 1500, and in Buckinghamshire, of the yearly value of 1100, were settled on Lord Inchiquin for life, remainder to Lady Orkney for life, remainder to the issue of the marriage in tail general. Lady Mary Fitzmaurice is the only child of the marriage. -Lady Mary Fitsmaurice, then O'Brien, being come of age in 1776, and the father Lord Inchiquin being considerably in debt, Lady Mary joined in suffering a recovery of the Oxfordshire and Berkshire estates, the uses of which were declared to be to Lord Inchiquin in fee, in order that the same might be sold and applied in payment of his debts; and in July 1777, they were accordingly mortgaged by Lord Inchiquin for 1 BEO. C. C. 340. SHELBURNE ( COUNTESS OF) V. INCHIQTJIN (EARL op) 1167 two several sums of 20,000 and 4000.-A marriage being in contemplation between said. Thomas Fitzmaurice, and Lady Mary, by articles of agreement bearing date the 17th of December 1777, between the plaintiff, Lady Shelburne of the first part, said Thomas Fitzmaurice of the second part, the said Earl of Inchiquin of the third part, said Lady Mary, then Lady Mary O'Brien, of the fourth part, and Henry Dagge and John Patterson, of the fifth part; it was, in consideration of marriage, covenanted and agreed in manner therein mentioned; and Lady Shelburne did on her part covenant and agree to limit and appoint (in pursuance of the power given to her by the said late Earl of Shelburne's will) to the said Thomas Fitzmaurice, and his heirs, certain lands in Ireland, of the yearly value of 3000 and upwards, part thereof immediately in possession, and other parts thereof to him after her decease.-And the said Thomas Fitzmaurice covenanted and agreed with the said Dagge and Patterson, as soon after the execution of such deeds by Lady Shelburne as conveniently might be, to convey and assure to them the said Dagge and Patterson all his estate, right, and interest in the said Irish premises, in trust for himself for life, remainder to Lady Mary for life, for her jointure, remainder to first and other sons in strict settlement. And the said Earl of Inchiquin and Lady Mary did on their part, covenant and agree with Dagge and Patterson to convey and assure to them the said estates in Oxfordshire and Buckinghamshire, in trust, by a mortgage of the whole, or any part thereof in fee, or for a term of years, to raise the sum of 30,000 towards discharging the then present debts [340] and incumbrances of the said Earl of Inchiquin, and subject thereto, and also to the payment of 1000 'per annum, to the defendant the Countess of Orkney for her life, to the said Thomas Fitzmaurice for life, remainder to Lady Mary for life, remainder over to their first and other sons in strict settlement.-The marriage took place ; and, in June 1778, the Earl of Inchiquin, and Thomas Fitzmaurice and Lady Mary joined in suffering a common recovery of the Buckinghamshire estate to the use of such person or persons as they should jointly appoint; and by indentures of the 26th and 27th of June 1778, the said Earl of Inchiquin, Mr. Fitzmaurice, and Lady Mary, appointed the said Buckinghamshire estate to trustees, for two thousand years, in trust, to raise by sale or mortgage of the said term, the sum of 23,000 to be paid to Lord Inchiquin, and subject thereto to Lord Inchiquin for life, remainder in trust to pay Lady Orkney 1000 per annum for life, remainder to Mr. Fitzmaurice and_ Lady Mary, and the survivor in fee. The present bill alledged, that the plaintiff Lady I Shelburne had no notice of the former incumbrance of 24,000 on the Oxfordshire estate, and therefore prayed that the said articles might be carried into execution, and that it might be declared that the said sum of 24,000 was to be considered as part of the 30,000 provided by the said articles towards paying Lord Inchiquin's debts and incumbrances,-and that the indentures of the 26th and 27th of June 1778, might be rectified by restraining the trust of the term of two thousand years, to the raising the sum of 6000, and by letting in limitations to the issue male and female of said Thomas Fitzmaurice and Lady Mary in tail-male, &c., according to the articles. Mr. Attorney-General and Mr. Hollist (for the plaintiff) insisted that on the face of the articles, only 30,000 was to be raised upon Lord Inchiquin's estate.-That the plaintiff had no notice of any prior incumbrance, and that she entered on the treaty with the idea that that was to be the sole charge upon the estate. Mr. Solicitor-General [Eichard Arden], Ambler, Scott, and Lloyd (for the defendant Lord Inchiquin), offered to read the evidence of Mr. John Patterson, to prove that the plaintiff had notice of the prior incumbrance of 24,000. and that it was the intent of all parties, that the 30,000 should be raised over and above the [341] 24,000- which being objected to, as tending to contradict a written agreement by parol evi dence,-it was contended for the defendants, that this evidence does not go to contradict, but to explain the articles.-The articles themselves do not import that the 30,000 is to be the only charge upon the estate,-but if otherwise, on the ground of mistake, parol evidence is to be admitted.-It is certain that this Court will relieve against either fraud or mistake:-For either of these purposes, there must be parol evidence.-In many instances this Court has been more liberal in admitting parol evidence in the case of articles, than it would have been in the case of deeds.-Articles are merely the heads of the parties' meaning ; and therefore in the case of articles, the meaning must be resorted to at all events.-Even in conveyances the Court will receive parol evidence where the words will admit of two meanings, or where the extent is doubtful; but in articles, which are executory, the Court has nothing to resort to but the meaning. 1168 SHELBURNE (COUNTESS OF) V. INCHIQUIN (EARL op) 1 BKO. C. C. S42. -And the only case in which they could refuse to hear parol evidence as to articles, is where it goes to contradict flatly the whole substance of them;-but in this case it goes to support the plain meaning of the words, or at least to explain doubtful words.- Eden v. Lord Bute, 7 Bro. Parlt. Ca. 204-445. Uvedale v. Halfpenny, 2 P. Wms. 151. Goman v. Salisbury...
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