Kinaston v Clark
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1741 |
| Date | 01 January 1741 |
| Court | High Court of Chancery |
English Reports Citation: 26 E.R. 526
HIGH COURT OF CHANCERY
Case 162.-langley versus brown, June 6, 1741. [See Evans v. Evans, 1853, 22 L. J. Ch. 1035.] Lord Hardwicke held, there was no ground in this case to relieve either under the head of fraud or mistake ; nor any pretence to set aside the deeds, and dismissed the bill. Judgment was given in this cause. A bill has been brought by the sister and heir at law of Richard Benthall, to be relieved against the deeds executed by Richard Benthall in his life-time, to Mrs. Elizabeth Brown, and for inspection, of the title deeds of Mr. BenthalVs estate, which, after his death, came to the hands of Mrs. Elizabeth Brown, and are now in the defendant's custody, and in case the legal estate does not pass by the deeds, then the plaintiff insists upon her right as heir at law. The material question is, whether deeds executed by Mr. Richard Benthall, an old man, in view and contemplation of a marriage very much to his own prejudice, and O.VI.-17* 522 LANGLEY V. BROWN 2 ATK. 196. greatly to the benefit of Mrs. Elizabeth Brown, the intended wife, shall be established 'in this court, notwithstanding the marriage never took effect; 1050, a debt due from Mr. Richard Benthall to Mrs. Elisabeth Brown for some years before, is recited to be part of the consideration of the following deed of lease and release, dated October 20, 1718. Made between Richard Benthall of the first part, Elizabeth Brown of the second part, and trustees of the third and fourth parts; reciting, that Robert Benthall was indebted to Elizabeth Brown in 1050, and in consideration thereof, he grants to trustees, and their heirs, to the use of Elisabeth Brown for life, then to trustees to preserve contingent remainders, then as and for all manors, lands, &c., or such part thereof as she the said Elizabeth Brown shall think proper, to the use of trustees and their heirs, during the life of such person only as she the said [196] Elizabeth Brown shall, by any writing or writings, executed by her in the presence, dec., or by will executed, &c., either absolutely or conditionally direct, limit, and appoint in trust for such person, &c. And for want of such appointment as aforesaid, to the use of Thomas Wild his executor, dec., for the term of 500 years, without impeachment of waste, subject to the provisoes, powers, &c., herein after declared concerning the same; and from and after the expiration, or other sooner determination of the 500 years term, to the use and behoof of the heirs of the body of the said Elizabeth Brown; and for want of such issue, then to the use of such person and persons, his, her, or their heirs, for such estate and estates, and in such manner as the said Elizabeth Brown, whether sole or married, and with or without the consent of any husband she shall happen to have, shall, by any writing, &c., or by will or writing purporting a will, direct, limit, and appoint, and chargeable with any sum, &c., not exceeding 1000. And it is agreed by and between the said parties, that all and every appointment made by the said Elizabeth Brown, by virtue of the powers in this deed, may from time to time be revoked and a new appointment made. And for want of such appointment, then to the use of the said Elizabeth Brown, her heirs and assigns for ever. A power to Elizabeth Brown to sell the premisses to pay incumbrances. A general warranty by Mr. Richard Benthall, who covenants that he is seised in fee, has full power to grant, that Mrs. Brown and her heirs shall peaceably enjoy; that the premisses are free from incumbrances, except a mortgage of 1200, and the recognizance of 1000, and that he will at his own expence do further acts to assure. The term of 500 years is declared to raise portions out of the estate for the younger children of the said Elizabeth Brown, not exceeding 1000. The deed of appointment of November 3, 1718, recites the powers created by the foregoing settlement in the first place, and then follows the appointment. " Now know ye, that I the said Elizabeth Brown in pursuance of, & c., do by these " presents, dec., appoint, limit, give, and grant all and singular the said manor of " Benthall, and all and every the lands, &c., and the reversion and reversions thereof, " expectant upon my death, in case I shall die before my intermarriage with the said " Richard Benthall, to hold to him the said Richard Benthall, his heirs and assigns " for ever, subject nevertheless, and upon this express condition, that the said Richard " Benthall, his heirs or assigns, shall, within the space of 12 months next after my " decease, pay to my brother John [197] Brown the sum of 300, to Ralph Brown 200, " and to Mary Brown...
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