Duncombe v Greenacre
| Jurisdiction | England & Wales |
| Judgment Date | 15 March 1861 |
| Date | 15 March 1861 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 718
BEFORE THE LORD CHANCELLOR LORD CAMPBELL.
S. C. 28 Beav. 472; 6 Jur. (N. S.), 987; 9 W. R. 429; 30 L. J. Ch. 413, 882; 7 Jur. (N. S.), 650.
[809] buncombe v. greenacre. Before the Lord Chancellor Lord Campbell. Nov. 26, Dec. 13, 1860. [S. C. 28 Beav. 472; 6 Jur. (N. S.), 987; 9 W. E. 429; 30 L. J. Ch. 413, 882; 7 Jur. (N. S.), 650.] Where a married woman was entitled under a will to a legacy charged on land, with power of entry and receipt of rents and profits: Held, that this power did not deprive the legacy of its equitable character, so as to enable the husband to assign it free from the wife's equity to a settlement, but that the Court would, at the suit of the wife, and on the devisee paying the legacy into Court, restrain the husband's assignee from enforcing the legal remedies for the recovery of the legacy. This was an appeal from the decisions of the Master of the Rolls, reported in Mr. SDK Q. P. ftJ.0. BUNCOMBE V. GREEN ACRE 719: Beavan's Eeports (vol. 28, p.. 472), overruling a demurrer to the Plaintiffs bill, and granting an injunction restraining an action commenced by certain of the Defendants against the Defendant Greenacre. The statements of the bill, which was filed by Mrs. Duncombe, were substantially as follows:- John Amies (the Plaintiffs father) byjhis will dated in 1828, devised his real estate to hia son John Amies in fee, subject nevertheless as to his real estate to the payment of the sum of 1000 to hia daughter Anna Elizabeth (the [510] wife of James Duncombe), at the end of six calendar months next after the decease of the testator's wife, Mary Amies, if his daughter should be living at the decease of Mary Amies. And the testator declared, that if default should be made in payment of the 1000 it should be lawful for his daughter to enter into and upon his said messuages, lands, tenements, hereditaments and real estate, or into and upon any part thereof in the name of the whole, and by receipt of the rents and profits thereof, or by demise, sale or mortgage of the same, or any part thereof, or by any other ways and means, to raise, recover and make up the sum of 1000, or such part or parts of the same in payment whereof default should be made, and all the costs, charges and expenses of obtaining and recovering the same. And the testator gave the residue of his personal estate to his son. The testator died in 1837, his widow died in 1853, and the 1000 then became payable. After the testator's death his son sold the real estate to the Defendant Greenacre, charged with the 1000, which Greenacre covenanted with the son to pay. James Duncombe subsequently assigned by deed all his interest in the 1000 to trustees for the Family Endowment Society, by way of security for two sums of 450 and 100, with interest. James Duncombe some time afterwards took the benefit of the Insolvent Debtors Act in England, and subsequently to his insolvency the mortgagees of his interest in the sum of 1000 obtained a decree of foreclosure against his assignee in insolvency. The 1000 remained unpaid, and the trustees of the [511] Family Endowment Society claimed to be entitled to receive the whole of it. The bill then contained the following allegations :- " The Plaintiff was married to James Duncombe in January 1828, and has had two children by him, both of whom are now living. One, a daughter, was born in 1828, and is now the wife of John Vanderberg, and the other James, who was born in 1831, and is now residing in Australia." " The Plaintiff was educated and brought up as the daughter of a gentleman, and maintained in that position until the time of her marriage, and James Duncombe then and for some years afterwards followed the profession of an attorney and solicitor, and was in easy circumstances, maintaining himself, the Plaintiff and her children in comfort and respectability, but since his insolvency he has been and is now in very straitened circumstances, depending upon members of his family for his daily support and maintenance, and wholly unable to support and maintain the Plaintiff." " No settlement was made on the Plaintiff at the time of her marriage, and ahe is now and for a long time past has been dependent upon her brother John Amies for her maintenance and support, and has been for some time past and is now supported and maintained by him at his sole charge." " The society, as claiming through James Duncombe, seeks to reduce into possession the said legacy or sum of 1000 so given to the Plaintiff, and the Plaintiff insists and claims that she is entitled to have the whole or such competent part as this Court shall think fit of the said [512] legacy or sum of 1000 settled upon her and her children." The bill proceeded to state that the society refused to recognize any right of the Plaintiff to have a settlement on herself and her children of any part of the 1000, and had required the Defendant Greenacre to pay the whole to them, regardless of Plaintiffs rights and claims to a settlement thereout, and had threatened and were now about to take proceedings against Greenacre, to compel him to pay to them the legacy or sum of 1000 and interest; and that the Defendant Greenacre alleged that 720 BUNCOMBE V. GREENACRE 2DBG. F. 4 J. 1S. he waa desirous of having the hereditaments charged with the .1000 released therefrom, and that he was willing to pay it to the parties entitled thereto. The Defendants to the bill were Greeuacre, James Buncombe and the trustees of the society, and the prayer was that the 1000 might be raised by sale or mortgage, for a declaration that the Plaintiff had a right to have the 1000 or a part thereof settled upon herself and children; that Greenacre might be at liberty to pay the 1000 into Court; and that, thereupon, the trustees of the society might be restrained from taking proceedings for the recovery of the 1000 or the property on which the same was chargeable, and from receiving it from Greenacre without making a settlement on the Plaintiff. To this bill the trustees of the Family Endowment Society demurred for want of equity. This demurrer having been overruled by the Master of the Rolls on the 5th July 1860, a motion was made on behalf of the...
To continue reading
Request your trial
-
Taylor v Taylor & Others
...Equity Jurisprudence, sec. 1415; Marshall v. FowlerENR, 16 Beavan. p. 249; in re Cutler, 14 Beavan, p. 220; Duncombe v. GreenacreENR, 29 Beavan, p. 578; Newman v. WilsonENR, 31 Beavan, p. ...
-
Druitt v Willens
...Division. DRUITT and WILLENS. Dunscombe v. GreenacreENRUNK 29 Beav. 578; 2 D. F. & J. 509. Daniel v. Freeman Ir. R. 11 Eq. 233. Osborn v. MorganENR 9 Hare. 4324 Box v. Box 2 C. & L. 605. Box v. Jackson Dru. 482; 6 Ir. Eq. R. 55. Scott v. Spashett 5 Mac. & Gor. 599. Watson v. MarshallENR 17 ......
- Anna Duncombe, by her Next Friend v Greenacre and Others