Hervey v Hervey

[561] Case 264.-hervey v. hervey. November the 12th, 1739. S. C. Barn. C. B. 103 ; S. C. 2 Eq. Cas. Abr. 669, pi. 20, 21, 22. It was agreed in consideration of 5000 of the portion paid to the father of the defendant, on his marriage, that he should be put into immediate possession of part of the estate; and as to the remainder, it was to be settled on the father for life, with a power for him to make a jointure of such of the lands as he thought proper, not exceeding 600 per arm., remainder to the son in tail, remainder over, and settlement was made accordingly- By a deed of the 5th of May 1725, Hervey the father, before his marriage with the plaintiff his second wife, conveys an estate of 900 per ann. to trustees in trust to pay 200 clear as pin-money to the intended wife; if she survive him, to pay her 300 per annum rent-charge for her jointure. 1 ATK. 562. HERVEY V. HERVEY 353 After marriage, he by a second deed, gives her another 300 per ann. clear. By a deed of the 15th of Jan. 1731, as a further provision for the wife, and in execution .of the power, he conveys all the said premisses to the same trustees to raise the further sum of 100 for pin-money, and the net sum of 600 per ann. as a provision for her in case she survive her husband, in bar of all other provisions before made; and in the settlement is the following declaratory clause : " It is hereby declared and agreed, " by and between, &c., that it is the intention of this deed, and of the preceding ones, " to secure a jointure to his then wife, not exceeding 600 per ann." The plaintiff having survived her husband, brings her bill against his son, and the trustees under the several deeds, to have the benefit of these provisions, all or some of them. The defendant and the trustees decreed to convey to the plaintiff a jointure, not exceeding 600 per ann. but to be made liable to taxes, repairs, &c., and to hold and enjoy the same against the defendant, c., during her life. Edward Hervey the father, by settlement made on his own marriage with his first wife, the mother of the defendant Michael Hervey the son, was tenant for life of the family estate which was very large, with a power to make a jointure on a second wife of 600 per ann. remainder in tail to his first and other sons. On the marriage of the defendant the son, it was agreed that a recovery should be suffered to bar the uses of the former settlement; that in consideration of 3000, part of the portion paid to the father, the defendant should be put into immediate possession of part of the estate, and as to the rest it was to be settled on the father for life, with power for him to make a jointure, of such of the lands as he thought proper, not exceeding 600 per ann. remainder to the son in tail, remainder over, and the settlement was made accordingly. (This settlement was made accordingly by indentures bearing date the 22 and 23 days of July 1715, and in the release there was the usual covenant from Edivard and Michael to make further assurances.} Hervey the father, before his marriage with the plaintiff his second wife, whose maiden name was Mary Carteret, by his deed, dated the 5th of May 1725-, conveyed all the premisses in the settlement contained, limited to him for life, of the yearly value of 900 to trustees (and their heirs during the lives of the said Edward and his intended wife) in trust, in the first place, to pay 100 clear, as pin-money, to the intended wife during the coverture; and upon this further trust, if she survive her husband, to pay the plaintiff 300 per ann. rent-charge to his wife for her jointure, and to permit the defendant to take the profits of the estate, provided he did not interrupt her in the receipt of the 300 per ann. which was declared to be in bar of dower of the wife, or of any jointure on any other land. The marriage took effect. By a second deed Hervey the father gives his wife another 300 per ann. clear, as a further provision by way of jointure. [562] And by a deed of the 15th of January 1731,(1) as a further provision for the wife, and in execution of the power, Hervey the father conveyed all the said premisses to the same trustees in the former deed, to raise, during the joint lives of'the husband and wife, the said sum of 100 per ann. for pin-money, and the net sum of 600 per ann. as a provision for her in case she survive her husband, in bar of all other provisions before made; and in this settlement is the following declaratory clause. " It is hereby declared and agreed, by and between all the parties to these presents, " that it is the intention of this deed, and of the preceding ones, to secure a jointure to " his then wife, not exceeding 600 per ann." No recovery was ever suffered in pursuance of the agreement made on the son's marriage. Mrs. Mary Carteret, now Hervey, survived her husband, and has brought her bill against his son Michael Hervey, and the trustees under the several deeds, to have the benefit of those provisions, all or some of them. Lord Chancellor. The first thing to be considered is the construction of the power under the deed, between Edward and Michael Hervey. It is very plain that this was a power in Edward Hervey to settle a jointure upon any after-wife, and so Mies quoties upon any subsequent marriage; it is a power likewise to settle and assure, that is, to convey a legal estate; but then it is limited in point G. vi.-12 354 HERVEY V. HERVEY 1 ATE. 563. of value, for he could not settle all the manor, but only so -much as would amount to 600 a year, and that only during the natural life of such wife. It is very certain, nor...