Penny v Watts
| Jurisdiction | England & Wales |
| Judgment Date | 21 April 1849 |
| Date | 21 April 1849 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 1220
HIGH COURT OF CHANCERY
S. C. 2 De G. & Sm. 501; 12 Jur. 993; 19 L. J. Ch. 212.
penny v. watth. March 24, 30, 31, April 3, 21, 1849. [S. C. 2 De G. & Sm. 501 ; 12 Jur. 993; 19 L. J. Ch. 212.] On the marriage of the Defendant with A. B., who, under the will of her former husband, was entitled to certain real estates charged with a legacy of 2000, payable to C. D., a feme sole, the Defendant had notice that C. D., while sole, had released this legacy to A. B., and that A. B. had in consequence devised to C. D. a certain part of the real estates. Held, that the knowledge of these fact& rendered it incumbent on the Defendant to make further inquiries, and affected him with constructive notice of an equitable title acquired by the husband of C. D,, under a subsequent agreement with A. B., to have the devised estate conveyed to him. At the time of the Defendant's marriage with A. B., the husband of C. D. was in possession as tenant of the estate in question. Qutrre, whether this circumstance alone would affect the Defendant with constructive notice of the real interest which the husband of C. D. had in the estate. Issues directed to ascertain the facts on which the title of the husband of C. D^ depended. 1 MAC. lea m. PENNY V. WATTS 1221 The Plaintiff in this case by his original bill, filed the 21st January 1846, and subsequently amended, stated that C. B. Unett deceased, devised his real and personal estate, subject only to the payment of his debts and legacies, to his wife Rebecca {who afterwards intermarried with the Defendant Watts); that the testator by his will gave to his niece Elizabeth Stone (who afterwards became the wife of the Plaintiff), a legacy of 2000, and that she died in 1836, shortly after her marriage, without having received payment of the legacy ; that the Plaintiff, as her repre^ sentative, was entitled to the legacy in question, with interest; that Rebecca Watts, having [151] possessed herself of the whole of the real and personal estate of the testator, to an extent much more than sufficient for the payment of his debts and legacies, nevertheless refused to pay the legacy; that in 1843 she married the Defendant Wattsr upon whom she made a settlement of the said real estates; that the Defendant Watts possessed himself of all the testator's estate and effects which remained undisposed of, and that he was in possession of the rents and profits of the real estates. The bill, after stating that the legacy was well charged on the real estates of the testator, and a pretence by the Defendants that the legacy had been released, prayed an account and payment of the legacy out of the personal estate ; and, if that was insufficient, and any part thereof had been applied in payment of any debt on any security, a declaration that the Plaintiff was entitled to stand as an incumbrancer on the real estate, to the extent to which the personal estate has been applied in payment of any debt or debts due on such security. Mr. and Mrs. Watts filed a joint answer to this bill, denying the Plaintiffs right to the legacy, and containing a passage (the Defendants speaking as to their belief) to the following effect; that during the months of July, August, September, and a part of October 1831, the Defendant, Rebecca Watts, and Elizabeth Penny, then Elizabeth Stone, were residing at Sandgate, in the county of Kent, and that some time during that period, prior to the 30th of August 1831, it was agreed between the Defendant Rebecca Watts, and Elizabeth Penny, who was then of the age of thirty-one years, that Elizabeth Penny should release to the Defendant Rebecca Watts the legacy of 2000 given to her by the will of the testator C. B. Unett, and that the Defendant Rebecca Watts should by her will devise to Elizabeth Penny a part of the real estates devised to the Deieudant Rebecca Watts by the will of C. B. Unett, and that Elizabeth Penny [152] expressed her wish that the estate consisting of the farm, messuage, and lands called Broad ward Hall, which had been the place of residence of the testator, and where Elizabeth Penny had been residing, should be so devised to her by the Defendant Rebecca Watts, and she stated to the Defendant Rebecca Watts that she preferred Broadward Hall property to certain other property in Herefordshire, although the latter was of greater value ; or Elizabeth Penny expressed herself to the Defendant Rebecca Watts in words to that effect, and that the Defendant Rebecca Watts acceded to the wish so expressed by Elizabeth Penny, and agreed to devise to her the estate called Broadward Hall; and that, in pursuance of the agreement so made between them, the Defendant Rebecca Watts, in the month of August 1831, at Sandgate, duly made and signed her will, and devised the last-named estate to Elizabeth Penny, then Elizabeth Stone, and that she, by deed under her hand and seal, released the Defendant Rebecca Watts from the payment of the legacy of 2000, and the interest thereof, and all actions, suits, claims, and demands in respect thereof. In another passage of the same answer, it was stated that the Defendant Rebecca Watts, before her marriage with the Defendant John Watts, informed him, as the fact was, that by agreement between her and Elizabeth Penny, before the marriage of Elizabeth Penny to the Plaintiff, she, Elizabeth Penny, had given up her right to the said legacy, and in lieu thereof she, Rebecca Watts, had by will left her Broadward Hall, part of theestate devised to her by her first husband. The answer subsequently referred to the finding, in a mutilated condition, by the Defendants of the release said to have been executed by Elizabeth Penny. Shortly after this answer was filed, and on the 19th April 1846, the Defendant Rebecca Watts died. The Plaintiff then filed another bill against John Watts, in [153] which, after stating that the Defendant had refused to take out representation to his late wife; but that, in fact, he had possessed himself of her personal estate, as well as of that of the testator, alleged that since the death of Rebecca Watts, he, the Plaintiff, had discovered that she had in 1835, shortly before the mairiage of the 1222 PENNY V. WATTS 1 MAO, A 0. 1M. Plaintiff with E. Stone, given instructions to a Mr. F. Marston, in consequence of which the following agreement was prepared and executed by Mrs. Watts and Elizabeth Stone before the Plaintiffs marriage, that is to say,-" An agreement entered into this 29th day of September 1835, by and between Rebecca Unett of Broadward Hall, in the parish of Clungunford, and county of Salop, widow, of the one part, and John Penny of the same place, bachelor, and Elizabeth Stone of the same place, spinster, of the other part, as follows: Whereas the late Charles Bayley Unett of Broad/ward Hall aforesaid, deceased, did, by his last will and testament, give and bequeath to the said Elizabeth Stone the sum of 2000, and appointed the said Rebecca Unett, his widow, sole executrix to the said will, and which said sum of 2000 has not been paid to the aaid Elizabeth Stone, or any part thereof; and whereas a marriage is agreed upon, and shortly to be had and solemnized by and between the said John Penny and the said Elizabeth Stone, and it is not convenient for the said Rebecca Unett to pay the said Elizabeth Stone, or her intended husband,, the said sum of 2000 ; it is therefore hereby agreed by and between the said parties, that in consideration of the said Elizabeth Stone giving up to the said Rebecca Unett the said legacy of 2000, the said Rebecca Unett shall effectually secure to the said Elizabeth Stone and the said John Penny her intended husband, all her, the said Rebecca Unett's, real estates hereinafter mentioned and described, and in manner and form following. It is, therefore, hereby agreed by and between the said par-[154]-ties, that the said Elizabeth Stone and John Penny relinquish, give up, and release to-the said Rebecca Unett, from the day of the date hereof, the said sum of 2000 and all interest due thereon; and for the consideration aforesaid, and also in further consideration of the said intended marriage, the said Rebecca Unett doth hereby contract and agree, by good and sufficient conveyances in the law, or, by her last will and testament, to seize, invest and secure to them, the said John Penny and Elizabeth Stone, their heirs and assigns for ever, all and every the real estates of her, the said Rebecca Unett, free from all incumbrances, situate, lying, and being within the county of Salop, such seizin to take effect and commence from the day of the death of the said Rebecca Unett and not before ; and all the real estates belonging to her, the said Rebecca Unett, situate in the county of Hereford, she reserves for her life, the life of her brother Humphrey John Stone, and the lives of his two daughters Frances Stone and Susannah Stone, in order to make provision for their maintenance during their lives; and subject thereto, the said Rebecca Unett hereby agrees, and undertakes, by good and sufficient conveyances in the law, or by her last will and testament, to seize and secure to the said John Penny and Elizabeth Stone, all the real estates and shares of real estates of and belonging to her, the said Rebecca Unett, situate within the county of Hereford, to hold to them, the said John Penny and Elizabeth Stone, from and after the day of the death of the said Rebecca Unett, Humphrey John Stone, Frances Stone, and Susannah Stone, their heirs and assigns for ever. And it is further agreed between the said parties, that a deed of settlement, or should it be found most advisable, a will or wills, shall be made and executed by the said parties, to effectually secure the said real estates, and release the said legacy [165] according to the terms and conditions herein written. Witness our hands, Rebecca Unett, Elizabeth Stone. Signed by the said Rebecca Unett and...
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