Henry Hervey, and Catherine, his Wife, Ann Clutton, Widow of Thomas Clutton, deceased, which said Catherine and Ann are two of the Daughters of Sir Thomas Aston, Bart.(Deceased), Plaintiffs; (1) and Dame Catherine Aston, Widow of Sir Thomas Aston, Sir Thomas Aston, Bart., eldest Son and Heir of the said Sir Thomas Aston, Sir John Chesshyre, Henry Wright, and Andrew Kendrick
| Jurisdiction | England & Wales |
| Judgment Date | 05 June 1738 |
| Date | 05 June 1738 |
| Court | High Court of Chancery |
English Reports Citation: 25 E.R. 975
ON APPEAL FROM AN ORDER OF THE MASTER OF THE ROLLS.
See In re Moore, 1888, 39 Ch. D. 131.
[350] henry hervey, and catherine, his Wife, ann glutton, Widow of thomas glutton, deceased, which said catherine and ann are two of the Daughters of Sir thomas aston, Bart., deceased, Plaintiffs; (1) and Dame catherine aston, Widow of Sir thomas aston, Sir thomas aston, Bart., eldest Son and Heir of the said Sir thomas aston, deceased, Sir john chesshyre, henry wright, and andrew kendrick, Defendants. [See In re Moore, 1888, 39 Ch. D. 131.] On Appeal from an Order of the Master of the Rolls. April 29f/i, Nov. Zlst, 1737; June 5th, 1738. 1 Atk. 361. Sir Thomas Aston, by settlement, reserving to himself a power of revocation, conveys certain estates to trustees for a term of years upon trust, in case he shall have one or more son or sons living at the time of his death, and more daughters than one living at that time, or who shall, in his life-time, be married with his consent, that then it may be lawful for the said trustees, by and out of the rents and profits of the premises, and by such interest, produce, and increase, as shall be made of the same, or by such mortgage or leasing thereof, or such ways and means as to them shall seem meet, to raise, levy, and receive for, and as the portion of every such respective daughter, the sum of 2000, and after such respective sum of 2000 shall be so received and raised, shall and may pay to every such daughter the sum of 2000 at the respective days of their marriage, with the consent of Lady Aston, if living, and being his widow, or if she be dead or married again, then with the consent of the trustees, or the survivor of them, or the executors, administrators, or assigns of the survivor, and also by and out of the rents and profits of the premises, to pay yearly to each the sum of 50 until the age of eighteen, and after that age, and until their marriage, with such 976 HERVEY V. ASTON WEST T. HAED. 351. consent as aforesaid, and during the life, and until the second marriage of their mother, 70 yearly, and from and after their marriage, with such consent as aforesaid, or after the death or second marriage of their mother, the yearly sum of 100, until their respective marriages or deaths, which should first happen, and in case of the death of any of the daughters before they should be married with such consent as aforesaid, then the portion shall cease, and the estate be exonerated thereof; and if raised, shall be paid to the person entitled to the reversion of the estate, the funeral expenses of such daughters so dying before marriage, to be paid by the person entitled to the reversion. Sir Thomas Aston, by his will, directs, that out of other real estates (which he directs should be accounted as part of his personal estate), and out of all other monies to which he was entitled, certain sums shall be raised and paid to his daughters, to be for the augmentation of their portions, provided by the settlement, to be paid to them at such times, and subject to such conditions, provisoes, limitations, and agreements, as their original portions were made subject to; and in case any of his daughters shall happen to die, their additional portions are not to go to their personal representatives. Two of the daughters of Sir Thomas Aston, after his death, having married without the consent of their mother, they were held not entitled either to the original portions provided by the settlement, or the additional portions given by the will.(2) Sir Thomas Aston having issue by his wife, the defendant, Lady Aston, one son, the present Sir Thomas Aston, and [351] eight daughters, by indentures of lease and release, bearing date the 27th and 28th of May 1712, between himself of the first part; Sir John Chetwood and John Crew, of the second [352] part; and Sir Robert Burdett, since deceased, and Sir John Chesshyre, of the third part; conveyed to certain trustees and their heirs, all his manors, lands, and hereditaments, to hold the same to them and their heirs, to the use of himself for life, remainder as to the hall and park of Aston, and other part of the premises in Cheshire, to the use of his wife, the defendant. Lady Aston, during her widowhood, and so long as she should make Aston Hall the place of her usual residence ; and as to the rest of the premises, and also the premises limited to Lady Aston after the determination of her interest therein, to the use of his son, the defendant, now Sir Thomas Aston, for life, remainder to trustees, to preserve contingent remainders ; remainder to his first and other sons in tail male ; remainder to the second and other sons of the settlor, Sir Thomas Aston, by the defendant, Lady Aston, for life, remainder to the first and other sons in tail male, and for default of such issue, as for the premises in the counties of Warwick and Berks, to the use of Sir Robert Burdett and Sir John Chesshyre, for 1000 years, and as to the rest of the premises, as the respective uses thereof should determine, and also the premises in the counties of Warwick [353] and Berks, after the determination of the term of 1000 years, to the use of the first and other sons of the settlor, Sir Thomas Aston, by any other wife, in tail male ; remainder to the first and other daughters of the defendant, now Sir Thomas Aston, in tail male ; remainder to the first and other daughters of the second and other sons of the settlor, Sir Thomas Aston, in tail male ; remainder to the first and other daughters of the settlor, Sir Thomas Aston, by the defendant, Lady Aston, in tail male, with divers remainders over. The trusts of the term of 1000 years were declared to be that in case Sir Thomas Aston, the settlor, should die without issue male by his wife Lady Aston, or having issue male who should die before marriage and before the age of twenty-one years, and should have only two daughters by his wife Lady Aston living at the time of his decease, or who in his life should have been married with his consent; That in that case arid not sooner or before, Sir Robert Burdett and Sir John Chesshyre and the survivor of them, and the executors, administrators, and assigns of such survivor, should take and receive the rents, issues, and profits of the premises limited to them for 1000 years, and by such interest, produce, and increase as should be made or raised by the same or any part thereof, or by such mortgage or leasing thereof, or of any part or parcel thereof, or such ways and means as to them should seem meet, raise the sum of 5000, and the same so raised pay and deliver to or to the use of the younger of such two daughters, when and as soon as she should be married with the consent of the defendant, Lady Aston, if then living and not married again, and if dead or married again, then with the consent of Sir Robert Burdett and Sir John Chesshyre, or the survivor of them, or the executors, WEST T. HARD. 354, HERVEY V. ASTON 977 administrators, or assigns of such survivor ; and upon this further trust that the said Sir Robert Burdett and Sir John Chesshyre and the survivor of them and the executor administrator or assigns of such survivor, should yearly after the death of Sir John Aston the settlor without issue male raise and pay to such younger daughter out of the rents issues and profits of the said premises until her marriage with such consent as aforesaid and during the life of the defendant Lady Aston, and until the second marriage of the said Lady Aston the yearly sum of 100, and from and after the marriage of such daughter with such consent as aforesaid, and after the decease or second [354] marriage of the said defendant Lady Aston the sum of 250 per annum until the said sum of 5000 should be raised and paid; and after providing for the event of there being more than two daughters, and a son and Only one daughter ; it was further declared that in case the said Sir Thomas Aston the settlor should happen to have one or more son or sons of his body by his wife the defendant, Lady Aston, living at the time of his death, and should happen to have more daughters than one living at the time of his death, or who should be in his lifetime married with his consent as aforesaid, that then it should be lawful for the said Sir Robert Burdett and Sir John Chesshyre and the survivor of them and the executors administrators and assigns of such survivor by and out of the rents issues and profits of the said premises so limited to them for the term of 1000 years as aforesaid, or by such ways and means as aforesaid to raise levy and receive for and as the portion of every such respective daughter, the sum of 2000, and after such respective sums of 2000 should be so had received and raised, should and would well and truly pay or cause to be paid unto every such daughter respectively the respective sums of 2000 at the respective days of their marriage with such consent as aforesaid, and also that it should be lawful for the said Sir Robert Burdett and Sir John Chesshyre and the survivor of them and the executors administrators and assigns of such survivor by and out of the rents issues and profits of the said premises so limited to them for 1000 years yearly from and after the decease of the said Sir Thomas Aston the settlor to pay and satisfy to the said daughters the respective yearly sum of 50 a-piece until their respective attainment of the age of eighteen years and after their respective attainment of that age and until their respective marriage with such consent as...
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