Falkland (Viscount) v Bertie
| Jurisdiction | England & Wales |
| Judgment Date | 25 January 1696 |
| Date | 25 January 1696 |
| Court | Lord Chancellor's Department |
English Reports Citation: 23 E.R. 814
HIGH COURT OF CHANCERY
[333] de term. S. hillarii, 1096, in curia cancellari.e. Case 317.-Lucius henry gary Lord Viscount falkland, Son and Heir of edw. gary, an Infant, by his Guardian, Plaintiff; james bertie and elizabeth his Wife, Sir william whitlock, john grout, and others, Defendants. Jan. 25 [1696]. [1J Eq. Ca. Ab. 110, pi. 10 ; Salk. 231; 2 Freem. 220; 3 Ch. Ca. 129, S. C. One devises lands to trustees and their heirs, in trust to pay such of his debts and legacies as his personal estate should fall short to pay ; then in trust for his niece Elizabeth (his heir at law) for her life, in case she within three years after his death should be married to the Lord Guildford, remainder to her first, &c., son by the Lord Guildford in tail male. In default of such issue, or in case the said marriage should not take effect within the three years, then in trust for the Lord Falkland for life, remainder to his first, &c., son in tail male, remainder to his own right heirs. The niece's marriage with the Lord Guildford does not take effect, and after the three years she marries Mr. Bzrtie with the trustees consent. This is a condition precedent, and equity cannot relieve against the non-performance. John Gary, of Stanwell, Esq. having neither wife nor child, and the defendant Elizabeth, now the wife of Mr. Bertie, being his niece and heir at law, on Sept. 10, 1685, he made his will and thereby devised his manor of Stanwell, and divers others manors and lands, being his own real estate (except his manor of Caldicot, which he thereby gave to his kinsman Edward Gary) to Grout, Hall and Whitlock and their heirs, upon trust (inter al'), to pay what debts ajad legacies his personal estate should not extend to satisfy, and then in trust for the honourable Elizabeth Willoughby, the defendant, his cousin and heir, in case she should within three years after his death be married to Francis Lord Guildford, for her life; and after her death, in case such marriage was had, to the eldest son of the Lord Guildford on her body to be begotten, and to the heirs males of the body of such son; and for default of such issue, to all 2 VEEN. 334. FALKLAND (LORD) V. BERTIE . 815 other the sons of the said Elisabeth by the Lord Guild/ord in tail male ; and in default of such issue, or in case such marriage should not take effect within the said three years, then in trust for Anthony Lord Falkland for life, and to his first and other sons in tail male; in default of such issue in trust for Edward Gary, the plaintiff's father, for life, [334] and to his first and other sons in tail male; and in default of such issue, in trust for the right heirs of the said John Gary the testator : and devised to his trustees the leasehold, subject to the same trusts, as are declared concerning the freehold; and devised to them his household goods at Stanwell, that the same might go and be for the benefit of such person, who by virtue of his will should be intitled to his house. (Vide Richards & Al'. v. Lady Bergavenny, ante, p. 324. Offley v. Offley, Pre. Ch. 26.) Sept. 18, 1685, he made a codicil, only directing some other legacies. The 20th of the same month he makes another codicil, reciting that by his will he had appointed the trust of his real estate, to be for the benefit of the honourable Elisabeth Wil-[y^Q\-loughby, in case she should within three years after his decease be lawfully married to the Lord Guild/ord : now his will is, that if the said marriage should take effect before years of consent, and if not afterwards, when of a competent age, ratified, the said Elizabeth Willoughby should have no benefit of the said trust, other than she should have had if the marriage had been never solemnised ; and devises the tuition of his niece to the Lady Wiseman, the Lord Guildford's sister, and soon after died. The marriage between the Lord Guild/ord and Elisabeth Willoughby did not take effect within the three years, and after they were elapsed, she intermarried with the defendant Mr. Bertie, having first by her trustees come to an agreement with Anthony Lord Falkland, and Edward Cary (the plaintiff's father) that they, on the terms agreed on, should permit her to enjoy the estate; but they being both but tenants for life and since dead, the plaintiff, the son and heir of Edward Cary, brought his bill claiming the benefit of the trust, demanding an account of profits, and a conveyance of the legal estate from the trustees. Mr. Bertie and his wife had also brought their bill to the like effect. This cause was heard by the Lord Chancellor Somers, assisted with the two Chief Justices, and this day was appointed for the delivery of their opinions. Lord Chief Justice Treby. I take this will to be designed by the testator for a final and fixed settlement of the estate, and although Elizabeth Willoughby was his niece and heir at law, yet the Lord Falkland was of his name and...
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