Drury v Drury
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1760 |
| Date | 01 January 1760 |
| Court | High Court of Chancery |
English Reports Citation: 28 E.R. 810
HIGH COURT OF CHANCERY
Doubted by Lord Thurlow and Lord Northington. See Milner v. Lord Harewood, 1811, 18 Ves. jun. 275; Caruthers v. Caruthers, 1794, 4 Bro. C. C. 499, 505, n., 507. See Field v. Moore, 1855, 7 De G. M. & G. 714. Discussed and distinguished, Seaton v. Seaton, 1888, 13 App. Cas. 67. For proceedings in H. L. see Earl of Buckinghamshire v. Drury, 2 Eden, 60.
[39] drury v. drury. 1760-61. [Doubted by Lord Thurlow and Lord Northington. See Milner v. Lord Harewood, 1811,18 Ves. jun. 275 ; Caruthers v. Caruthers, 1794, 4 Bro. C. C. 499, 505, n., 507. See Field v. Moore,-1855, 7 De G. M. & G. 714. Discussed and distinguished, Seaton v. Seaton, 1888, 13 App. Cas. 67. For proceedings in H. L. see Earl of Buckinghamshire v. Drury, 2 Eden, 60.] Determinations of the Lord Chancellor, 1st. That the statute of 27 H. 8, which introduced jointures, extends to adult women only, infants not being particularly named ; and therefore that, notwithstanding a jointure on an infant, she may waive the jointure, and elect to take dower. 2dly, That a covenant by the husband that his heirs, executors, or administrators, shall pay the wife an annuity for her life in full for her jointure, and in bar of dower, without expressing that it shall be charged on any particular lands, or be secured out of lands generally, is not a good equitable jointure within the statute. 3dly, That a woman, being an infant, cannot, by any contract previous to her marriage, bar herself of a distributive share of her husband's personalty in case of his dying intestate : reversed on appeal by the House of Lords.-27th, 28th, and 29th Feb. 1760; 3d, 4th, 6th, and 7th Feb. and 1st June 1761.-S. C. Amb. MSS.; Sewell, MSS. By indenture bearing date the 5th of October 1737, and made between Sir Thomas Drury, then Thomas Drury, esquire, of the first part; the defendant, then Martha Tyrell, spinster, one of the daughters of Sir John Tyrell, baronet, deceased, of the second part; and Joseph Townsend and Thomas Mathews, esquires, of the third part; after reciting a marriage then intended between the said Sir Thomas Drury, and the defendant, it was declared and agreed that the said Sir Thomas Drury should be entitled to, and receive all the personal estate and effects which the defendant was possessed of, or entitled to, for his own use and benefit; and that all the lands, tenements, and hereditaments, then late of the said Sir John Tyrell, deceased, which should descend to or devolve upon the defendant during the intended coverture, should be settled and assured in manner thereinafter mentioned; and also that the defendant, in case she should survive the said Sir Thomas Drury, should have or enjoy an annuity or yearly sum of 600, clear of all taxes and deductions whatsoever, during her life, for and in the name of her jointure, and that the same shoiild be taken and accepted by her in full satisfaction and bar of all dower or thirds of, in, to, or out of, any lands, tenements, or hereditaments whatsoever, whereof or wherein the said Sir Thomas Drury then was, [40] or a* any time thereafter, during the intended coverture, should be seised of any estate of inheritance, and also in lieu and full satisfaction of any share or distributory part of any personal estate which the said Sir Thomas Drury should be possessed of or entitled to, and which she could or might claim or demand by virtue of the statute for the distribution of intestate's estates, or otherwise howsoever. And the said Sir Thomas Drury, in consideration of the said intended marriage, and of the portion which the defendant was possessed of, or entitled to, and which would accrue to him in case the said marriage should take effect, did, for himself, his heirs, executors, and administrators, covenant and agree to and with the said Joseph Townsend and Thomas Mathews, their executors and administrators, that the heirs, executors, or administrators of him, the said Sir Thomas Drury, in case the defendant should survive him, should pay her, during her life, the yearly sum of 600, without any abatement whatsoever, half-yearly; and also that in case any lands, tenements, and 2 EDEN, 41. DRURY V. DRURY 811 hereditaments of the said Sir John Tyrell, deceased, should in anywise descend, remain, accrue, or come to the defendant during her said coverture, then the said Sir Thomas Drury and the defendant should and would immediately thereupon convey, settle, and assure all such lands, tenements, and hereditaments, to the uses after mentioned; that is to say, to the use of the said Sir Thomas Drury during his life, and afterwards to the use of the defendant and her assigns during her life, and after her death to the use of the said Sir Thomas Drury and his heirs and assigns for ever. The deed was executed by the defendant in the presence of Mrs. Elizabeth Kellaway, her guardian, who was also a subscribing witness. The defendant was entitled to a portion not exceeding 2000; she was then an infant, being a month under the age of twenty-one. [41] On the 20th of January 1750, Sir Thomas Drury died intestate, being seised in fee of an estate and mansion-house at Overstone, in the county of Northampton, of the yearly value of about 2600, and of a personal estate amounting to above 60,000. He left the defendant, his widow and the plaintiffs, Mary Ann and Jocosa Catharina, his only children and co-heiresses at law. The defendant, Lady Drury, having taken out letters of administration, and possessed herself of the personal estate, the present bill was filed by the daughters for an account of the rents and profits of the real estate, and of the personal estate, &c. Lady Drury, by her answer, insisted, that as she was an infant when she executed the said indenture of settlement, and at the time of the marriage, she could not, nor ought to be barred by the said indenture, but was at liberty to make her election whether she would accept the said annuity or .waive the same, and take her dower out of the real estate, and her distributive share of the personal estate. The cause was twice argued : first on the 27th, 28th and 29th of February 1760, by the Solicitor-General, Mr. Wilbraham, and Mr. Browning, for the plaintiffs; and the Attorney-General, Mr. Hoskins, and Mr. Comyn, for the defendant; and secondly, on the 3d, 4th, 6th and 7th of February 1761, by the Solicitor-General, Mr. Perrot, Mr. Wilbraham, and Mr. Stainsby, for the plaintiffs; and the Attorney-General, and Mr. Sewell, and Mr. Hoskins, for the defendant. For the plaintiffs. Two general questions arise upon the present case ; 1st, Whether a feme infant can bar her right to dower by an agreement before marriage 1 and 2dly, Whether such agreement can bar her of her share of the personal estate of her husband under the statute of distribution 1 [42] 1st. The common law considered dower as a reasonable provision for the wife out of the real estate of the husband, and totally distinct from her own inheritance. Lord Coke defines it so from Bracton, propter onus matrimonii, &c. Co. Litt. 30 b, ascertained by a writ of dower complete by the husband's death, inchoate upon marriage. Dower, ad ostium ecclesice, was a provision made by the husband of age after marriage. Dower, ex assensu patris, might be by an infant husband. Bract. Lib. 2, c. 39. But in both these cases the wife might refuse, and elect dower at common law : her power, however, arose not from her infancy, but the coverture. Infancy could not be regarded, because since infants might enter into the principal contract, marriage, it was thought consequential that they might bind themselves in every thing attendant thereon. This right to dower being a freehold interest, no provision could bar it by way of collateral satisfaction. Vernon's case, 4 Rep. For she could not give a release before marriage, as she had then no title to dower, and she could not be compelled to levy a fine after marriage : hence great inconveniences were found to arise. It was thought unreasonable that where a person of very large estate married a young woman of little or no fortune, she should be at all events entitled to one third of it. To remedy this inconvenience was one reason of the invention of uses ; and as the wife was not dowable of lands in use, the husband frequently procured an estate to him and-his wife, &c., for a competent provision for her after the husband's death ; but if, after the jointure made, the husband became seised of new lands, she became entitled to dower out of such new acquired lands also ; so that there could be no fixed provision for the wife. When the statute of uses was made, which transferred the use into possession, if some particular provision had [43] not been inserted, the wife would have had both her jointure and dower. The subsequent clauses...
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