Jones, d. Joseph Henry, - Plaintiff (in Error); William Hancock, and Ann his Wife, and Others, - Defendants (in Error): and Long, d. John Joseph Henry, - Plaintiff (in Error); William Hancock, and Ann his Wife, etc., - Defendants (in Error)
| Jurisdiction | England & Wales |
| Judgment Date | 19 June 1816 |
| Date | 19 June 1816 |
| Court | Exchequer |
English Reports Citation: 3 E.R. 1119
ERROR FROM THE COURT OF EXCHEQUER CHAMBER.
See Mews' Dig. v. 339; Rickards v. Rickards, 1843, 2 Y. & C. C. 419; also Milward v. Thatcher, 1787, 2 T. R. at p. 84.
Testator devises his estates to his eldest daughter A. for life, remainder to her first and other sons in tail male-remainder to his daughter F. for life, remainder to her first and other sons in tail male-remainder to the first and every daughter of A., remainder to the first and every daughter of F., and then annexes this proviso or condition.
"But I give, devise, and bequeath all my said estates, above-mentioned, to my
"eldest daughter A. on this proviso, and express condition, that she marry
"a man really and bon fide possessed of a property at least equal to, if not "greater than the one I leave her-and if she marries a man with less
"property than that, in that case I leave her only as much of mine as shall
"be equal to the property of the man she marries, and all the remainder "of my property shall immediately pass over, and be given up to my second "daughter F., to whom in that case I bequeath it."
Held by the House of Lords, concurring in the unanimous opinion of the Judges, that the devise over was void for the uncertainty-the specific portion or share so given over not appearing on the face of, or from the instrument itself.
JONES D. HENRY V. HANCOCK [1816] IV DOW. [145] IEELAND. EKKOB FROM THE COURT OF EXCHEQUER CHAMBER. jones, d. joseph henry,--Plaintiff (in Error); william hancock, and ann his Wife, and Others,--Defendants (in Error): and long, d. john joseph henry,-Plaintiff (in Error); william hancock, and ann his Wife, etc.,-Defendants (in Error). [May 1, 5, 10, 1815. June 12, 19, 1816]. [See Mews' Dig. v. 339 ; Rickards v. Richards, 1843, 2 T. & C. C. 419; also Mihoard v. Thatcher, 1787, 2 T. E. at p. 84.] [Testator devises his estates to his eldest daughter A. for life, remainder to her first and other sons in tail male-remainder to his daughter F. for life, remainder to her first and other sons in tail male-remainder to the first and every daughter of A., remainder to the first and every daughter of F., and then annexes this proviso or condition.] [" But I give, devise, and hequeath all my said estates, above-mentioned, to my " eldest daughter A. on this proviso, and express condition, that she marry " a man really and bond fide possessed of a property at least equal to, if not " greater than the one I leave her-and if she marries a man with less ; " property than that, in that case I leave her only as much of mine as shall " be equal to the property of the man she marries, and all the remainder " of my property shall immediately pass over, and be given up to my second " daughter F., to whom in that case I bequeath it."] [Held by the House of Lords, concurring in the unanimous opinion of the Judges, that the devise over was void for the uncertainty-the specific portion or share so given over not appearing on the face of, or from the instrument itself.] John Henry, Esq., being seized in fee of an estate in the County of Galway, of considerable [146] value, on the 4th day of May in the year 1786 duly made and published his last will and testament, in writing, in the presence of three credible witnesses, who attested the same, which, so far as is material to the present case, was as follows: " I give and bequeath unto Hugh Henry, Esq. my brother, for civilities " shewn me, the sum of 200 sterling, besides 500 and the reversion hereinafter men-" tioned for the trouble he will have in the executorship to which I appoint him. I " bequeath unto Mrs. Ann Magan my sister, for civilities shewn me, the sum of 200 " sterling; and I bequeath unto Daniel M'Gusty of Ship Street, Esq. the sum of 50 " sterling, and chargeable with said legacies. I give, devise, and bequeath all my " estates in the Kingdom of Ireland to my eldest daughter, Ann Henry, begotten by " me on the body of Susannah Egar, the said Ann being born on the 23d of September, " 1783, for and during her natural life; and after her death I bequeath the said estates " to her first and every other son in tail male, the elder to take before the younger; and in default of such issue male, I give and bequeath all my said estates above mentioned to my second daughter Frances Henry, begotten by me on the body of the said Susannah Egar aforesaid, the said Frances being born on the 6th of December, 1785, for her natural life; and after her death, I bequeath my said estates to her first and every son in tail male, the elder to take before the younger; and in failure of such issue male, I bequeath all my said estates to the first and every daughter of my eldest daughter Ann Henry above mentioned, [147] the elder to take before the younger; and in failure of such issue, I bequeath all my said estates to the first and every daughter of my second daughter Frances Henry above mentioned, the elder to "take before the younger. " But I give, devise, and bequeath all my said estates above mentioned to my eldest " daughter Ann Henry aforesaid, on this proviso and express condition, that she marries a " man really and bond fide possessed of a property at least equal, if not greater, than " the one I leave her; and if she marries a man with less property than that, in that " case I leave her only as much of mine as shall be equal to the property of the man she 1119 IV DOW. JONES D. HENRY V. HANCOCK [1816] " marries, and all the remainder of my property shall immediately pass over and be " given up to my second daughter, Frances Henry, to whom in that case I bequeath it. " And it shall also be necessary for the man my eldest daughter Ann marries, in " order to be entitled to the aforesaid property, to take the name and arms of Henry, " unless he be a Lord, or possessed of property of more than double the value of mine. " I devise and bequeath to my second daughter, Frances aforesaid, an annuity of " 300 sterling, chargeable out of all my estates, to be paid her every year out of my " said estates, in two equal and even payments to her and her issue; in failure of such " issue, at her death said annuity shall revert back again and return to my eldest " daughter, Ann Henry and her issue. All I have said in regard to my eldest daughter and " her marriage as above mentioned, I mean and intend shall stand [148] good in regard " also of my second daughter Frances Henry, in case by the death of her eldest sister " Ann she shall before she marries come to be possessed of my estates as aforesaid, and " also the rents, issues, and profits of all my aforesaid estates, except such parts as shall " be necessary for a genteel maintenance and education of my two daughters above-" mentioned, shall be put out at interest till a proper sum be collected for a purchase, " and advantageous opportunity of purchasing land with it shall be found, which land " shall be added to my other estates, 'to the use of my eldest daughter Ann Henry, " which purchased estates shall be considered as a property I leave her, in regard to the " marriage she shall make as before mentioned. " And I will and devise, that in case my two daughters die without issue, that my " estates shall then go to my brother Hugh Henry, Esq. whom I nominate and appoint " as guardian to my children and executor of my will." After the making of the said will, the said Frances Henry, one of the devisees therein named, died on the 1st day of May, 1789, in the lifetime of the said testator; and the said John Henry died on the 17th day of September, 1790, without having altered or revoked the said will, and without leaving any lawful issue ; but leaving two brothers, namely, Joseph Henry his heir, and Hugh Henry his second brother, and the said Defendant Ann, his illegitimate daughter. The said Joseph Henry, the testator's eldest brother, died on the 7th of November, 1796, [149] leaving John Joseph Henry his eldest son and heir at law, who is also heir at law of the testator. Hugh Henry, the younger brother of the testator, died on the 10th February, 1802, leaving Joseph Henry his eldest son and heir at law. The said Ann Henry, after the death of the said John Henry, entered into the possession of the said estates, and was thereof seized under and by virtue of the said will, and being so seized on the 4th day of April, in the year 1803, intermarried with the Defendant William Hancock, at which time the said Ann was of the age of nineteen years and six months. At the time of the marriage of the said Ann Henry, with the said William Hancock, he was possessed of a personal property of the value of 6400 sterling in the whole, and of no other property. With respect to the value of testator's estates, and the comparative value of Mr. Hancock's property, the special verdict hereinafter mentioned finds as follows, namely, that the estates devised by the testator were, at the time of the said marriage, of the yearly value of 1638 19s. 4d. and the fee simple of the said lands was of the gross value .of 38,856. That an estate in the whole of the said lands for life of the said Ann Henry, was of the value of 12,952 sterling, at the time of the marriage, and that an estate in one-sixth part of the fee simple of the said lands was equal in value to the whole of the property of the said William Hancock, at the time of the said marriage, and an estate for the life [150] of the said Ann Henry, in one-half of the said lands, was equal in value, at the time of the said marriage, to the whole of the said property of the said William. Upon the said marriage taking effect, on the 4th day of April, in the year 1803, the said John Joseph Henry, the heir of the said Joseph and of the said testator, as of Easter...
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