Jones v How and Another
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1850 |
| Date | 01 January 1850 |
| Court | Court of Common Pleas |
English Reports Citation: 137 E.R. 790
IN THE COURT OF COMMON PLEAS
See S. C. in Chancery, 7 Hare, 267; 68 E. R. 109 (with note).
COMMON BENCH REPORTS. CASES ARGUED and DETERMINED in the COURT of COMMON PLEAS, in Hilary Term and Yacation, and Easter and Trinity Terms, 1850. By JAMES MANNING, Serjeant-at-Law; and JOHN SCOTT, of the Inner Temple, Esq., Barrister-at-Law. Vol. IX. London, 1857. [1] cases argued and determined in the court or common pleas, in hilary term, in the thirteenth year op the reign of victoria. memoranda. In the last Hilary Vacation, the Eight Hon. Thomas Lord Denman resigned the office of Lord Chief Justice of the Court of Queen's Bench. He was succeeded by the Right Hon. John Lord Campbell, who took his seat in Court on the first day of Easter Term, having first been called to the degree of Serjeant-at-Law, when he gave rings with the motto " Justitise tenax." In Easter Term last, the following gentlemen were appointed Her Majesty's Counsel learned in the Law:-Michael Pendergast, of Lincoln's Inn, Esq.; Henry Bliss, of the Inner Temple, Esq.; Charles Sprengel Greaves, of Lincoln's Inn, Esq.; William Charles Townsend, of Lincoln's Inn, Esq.; Christopher Argyle Hoggins, of the Middle Temple, Esq.; William Carpenter Rowe, of the Inner Temple, Esq.; Thomas Colpitts Granger, of the Inner Temple, Esq.; Peter Frederic O'Malley, of the Middle Temple, Esq.; Barnes Peacock, of the Inner Temple, Esq.; Edwin James, of the Inner Temple, Esq.; Kenneth Macauley, of the Inner Temple, Esq. The Judges who usually sat in Banco during this term, were-Wilde, C. J., Maule, J., Cresswell, J., Williams, J. jones v. How and another. 1850. [See S. C. in Chancery, 7 Hare, 267; 68 E. R. 109 (with note).] A., upon the marriage of B., his daughter, covenanted with her husband, C., his executors, &c., by deed or will to give, leave, and bequeath unto B. one full equal eighth part or share (that being an equal share with his other children,) of all the real and personal estate of which he should die seised or possessed. B. died in the life-time of A. A. having, in his life-time, made some disposition of property in favour of a son, by will devised and bequeathed his real and personal estate for the benefit of his widow and some of his surviving daughters:-Held, that C. had not any cause of action against the executors of A. The following case was sent by Vice-Chancellor Wigram for the opinion of this court:- Previously to, and in contemplation of, a marriage be-[2]-tween Frederick Jones T90 9C.B.3. JONES V. HOW 791 and Mary Way, spinster, the daughter of William Way, a deed of settlement, bearing date the 8th of April, 1826, was made and duly executed between and by the said Frederick Jones, of the first part, the said Mary Way, of the second part, and the said William Way and William Hearn, of the third part, by which deed of settlement the said Frederick Jones conveyed and assigned certain parts of his real and personal estate to the said William Way and William Hearn, upon certain trusts for the benefit of himself, the said Frederick Jones, and of the said Mary Way, and of the issue, if any, of the said intended marriage: and the same deed of settlement contained a certain covenant and agreement on the part of the said William Way, the father of the said Mary Way, in the words following, that is to say, " And this indenture lastly witnesseth, that, in consideration of the said intended marriage, and also in consideration of the settlement hereby made by the said Frederick Jones, he the said William Way, for himself, his heirs, executors, and administrators, doth covenant, promise, grant, and agree with and to the said Frederick Jones, his executors, administrators, and assigns, that he the said William Way shall and will, by deed or writing, or by his last will and testament, give, leave, and bequeath unto the said Mary Way one full equal eighth part or share, or such other part as shall be an equal share with all and each of his children and child, of all estates, moneys, real and personal estate, of which he the said William Way shall die seised or possessed." The marriage between the said Frederick Jones and the said Mary Way was duly had and solemnized, shortly after the execution of the said deed. At the date of the said deed, and of the said marriage, the said William Way had eight children only, and never had any more. Two of the said William Way's [3] said children died in their father's life-time, without issue, and leaving the said Mary Way, then Mary Jones, one of the six only children then surviving of the said William Way The said Mary Jones died in the month of February, 1843, also without issue, and in the life-time of her father, the said William Way. After the solemnization of the said marriage, and on the 23rd of October, 1831, a paper-writing, bearing that date, and purporting to be the last will and testament of the said Mary Jones, wife of the said Frederick Jones, was signed, sealed, and published by the said Mary Jones, and was attested in such manner as, at the date thereof, was required by law for rendering valid devises of freehold estates; and such paper-writing was in the words following, that is to say :- " This is the last will and testament of me, Mary Jones, wife of Frederick Jones, of Arreton, in the Isle of Wight, surgeon, whereby I do give, devise, and bequeath unto my said dear husband, all my right, title, and interest to which I am or may become entitled to, in possession, reversion, or expectancy, under or by virtue of the last will and testament, or writing, deed, or instrument, signed and executed, or to be signed and executed, by my father, William Way, of Newport and Wootton, in the said island, grocer, in my favour, or for my benefit,-to hold to him, my said husband, his heirs, executors, administrators, and assigns, absolutely, and for ever; and I do appoint my said husband sole executor of this my will." On the 5th of December, 1845, letters of administration, with the said paper-writing annexed, of the goods, chattels, and credits which were of the said Mary Jones, were granted, by and out of the prerogative court of Canterbury, to the said Frederick Jones, the sole executor named in the said paper-writing, and, as the lawful [4] husband of the said Mary Jones, the sole person entitled to her personal estate and effects over which she had no disposing power, and concerning which she was dead intestate. The said William Way, the father of the said Mary Jones, never in his life-time did any act by way of performance of the said covenant and agreement, and died in the month of July, 1846, leaving issue five children only him surviving; and, by his will, duly executed, and dated the 4th of April, 1843, the said William Way, after bequeathing certain specific parts of his personal estate to his widow, devised and bequeathed all his real estate, and the residue of his personal estate, to Thomas How and Alfred Mew, upon trust, after payment of his debts, for the benefit of his widow and some of his said five surviving children. And the said testator appointed the said Thomas How and Alfred Mew executors of his said will: but the said testator, William Way, did not in his said will mention the said Mary Jones and Frederick Jones, or either of them, or the said covenant and agreement. 792 JONES V. HOW 9C.B.5. The said Thomas How and Alfred Mew duly proved the said will in the prerogative court of the Archbishop of Canterbury, on the llth of August, 1846. The said William Way died possessed of some personal...
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