Powys v Mansfield
| Jurisdiction | England & Wales |
| Judgment Date | 17 November 1837 |
| Date | 17 November 1837 |
| Court | High Court of Chancery |
English Reports Citation: 40 E.R. 964
HIGH COURT OF CHANCERY
S. C. 6 Sim. 528; 7 L. J. Ch (N. S.), 9; 1 Jur. (O. S.), 861. See Currant v. Jago, 1844, 1 Coll. 265, n.; Kirk v. Eddowes, 1844, 3 Hare, 517; Campbell v. Campbell, 1866, L. R. 1 Eq. 387; Sayre. v. Hughes, 1868, L. R. 5 Eq. 380; Bennet v. Bennet, 1879, 10 Ch. D. 477; In re Hamlet, 1888, 38 Ch. D. 190.
powts v. mansfield. Dec. 14, 16, 17, 19, 20, 1836 ; Nov. 17, 1837. 1 844j i c0ii 265| n . jftr/. v Ediloweis, 1844, 3 Hare, 517; Campbell v. Campbell, 1866, L. K. 1 Eq. 387 ; Sayrr. v. Hughes, 1868, L. K. 5 Eq. 380 ; Bennet v. Bennet, 1879, 10 Ch. D. 477 ; In re Hamlet, 1888, 38 Ch. D. 190.] Tie proper definition of a person in loco parenMs to a child is a person who means to put himself in the situation of the lawful father of the child, with reference to the father's office and duty of making a provision for the child. A person may stand in loco parentix to a child, although the child lives with and is maintained by its father. Parol evidence is admissible to prove that a person did mean to put himself in loe,o parentis towards a child, so far as relates to the child's future provision ; and evidence of the declarations, as well as the acts of such a person, are admissible for that purpose. If the presumption of law against double portions provided by a person in loco parentis be attempted to be rebutted by parol evidence, it may be supported by evidence of the same kind. Declarations of a person in loco parentis are admissible in evidence upon the question of his intention as to providing a double portion for a child to whom he stands in that relation. A codicil republishing a will makes the will speak as from the date of the codicil, for the purpose of passing after purchased hands ; but not for the purpose of reviving, a legacy revoked, adeemed, or satisfied. 3 MY. & CR. 380. POWYS V. MANSFIELD 965 This case is reported, upon the hearing of the cause before the Vice-Chancellor, in the sixth volume of Mr. Simons's Keports (6 Sim. 528). Sir Richard and Lady Simeon and their son appealed from His Honour's decree. It is desirable to make some additions to the statement of the facts contained in the report of the hearing in the Court below. It appeared that the negotiations for the settlement, made on the marriage of Sir Richard and Lady Simeon, [360] were made with Sir John Barrington, and that Sir John's solicitors were employed by him to prepare the settlement made on the occasion of Lady Simeon's marriage, as well as of Mrs. Powys's marriage, and that Fitzwilliam Barrington did not interfere. The settlement made upon the occasion of the marriage of Fitzwilliam Barrington and his wife was proved in evidence, and bore date the 4th of July 1789. There was also, in evidence, a bond, dated the llth of July 1797, from Sir John Barrington to Fitzwilliam Barrington, for securing to the latter an annuity of 400. Certain diaries kept by Fitzwilliam Barrington, in the lifetime of his brother, were received in evidence de bene esse. By the first witnessing-part of the settlement, made on the marriage of the Plaintiff, Henry Philip Powys, with Julia Barrington, an annuity of 500 belonging to the Powys family, being part of a larger annuity, charged upon the revenues of the Post-office, by letters patent of King George the First, was conveyed to William Browne and Edward Philip Cooper (described as Edward Cooper, Fellow of St. John's College, Oxford, to distinguish him from another party to the deed of the name of Edward Cooper), to the use of themselves for a term of ninety-nine years, to be computed from the solemnization of the marriage, if the Plaintiff' and Julia Barrington, or either of them, should so long live, upon certain trusts therein mentioned ; and from and immediately after the decease of the survivor of them (the Plaintiff and Julia Barrington), and the determination of the term, and in the event that there should thereafter be issue male, either of Sir John Barrington or Fitzwilliam Barrington, who should live [361] to attain the fee-simple of the Swainston estates, or by the happening of any other event, the reversion in fee of Sir John Barrington in those estates should be destroyed or barred, and the charge of 10,000, thereinafter made by Sir John Barrington on the same estates, upon the trusts after declared, should be rendered of no effect, and it should become impossible that the same sum should be raised under the said charge, then to the use, intent, and purpose that Browne and Cooper should stand seised of the annuity, to the use of such one or more of,^be younger children of the marriage as the Plaintiff and Julia Barrington should jointly appoint; and in default of, and subject to such appointment, to tho use of all the younger children of the marriage, in fee, in equal shares as tenants in common, and for default of all such issue, or in case the charge thereinafter made by Sir John Barrington should not be defeated or destroyed, or prevented as aforesaid from taking effect, but should take full effect, and the said 10,000 should become raiseable by virtue thereof, then and in either of the said events, upon trust, and to the use, intent, and purpose, that Browne and Cooper should stand seized of the annuity, after the death of the survivor of them, the Plaintiff and Julia Barrington, to the use of Philip Lybbe Powys (the father of the Plaintiff) for his life, and after his decease to and for the use and benefit of the Plaintiff, his heirs and assigns for ever. Two of the witnesses examined on the part of the Defendants, Sir Richard and Lady Simeon and their son, were Mrs. Williams, a niece of Sir John Barrington, but not one of the daughters of his brother, and Miss (Jane Elizabeth) Barrington, one of his brother's six daughters. [362] In answer to the ninth interrogatory, Mrs. Williams stated that she was staying in the house with Sir John Barrington when he made his will, in the year 1813, and previously to the marriage of Lady Simeon, and that he mentioned to the witness and another niece, who was since dead, the circumstance of his having made his will: and said that, since he had discovered that he had a power of disposing of his estates, he had made his eldest niece, meaning the eldest daughter of Fitzwilliam Barrington, an eldest son, and had given her younger sisters 10,000 apiece, payable on the death of their father; and that, in order to raise these portions, he had appropriated the tithes of some of his Essex property; and that if, at the death of his brother, there should be any deficiency in the fund so to be raised, it was to be charged 966 POWYS V. MANSFIELD 3 MY. ft CR. 363. upon the Swainston property, which he had left to his eldest niece ; and he added that he considered that 10,000 was a good fortune for a gentleman's younger daughter: and that, about the same time, Sir John Barrington took the witness and her late sister and shewed them where he had deposited his will. The witness went on to state that, between that time and the marriage of her cousin, Julia Harrington, Sir John Barriiigton alluded several times, in conversation with the witness, to the aforesaid provision which he had made for the younger daughters of his brother, and usually repeated the observation that he considered 10,000 to be a good fortune for a gentleman's younger daughter ; and that, after the marriage of Julia Barrington, Sir John Barrington mentioned to the witness, on the first occasion of her going to see him after that event, that he had settled 10,000 upon his niece Julia, to be payable after the death of her father, and he repeated the fund out of which this portion was to be paid, namely, out of the accumulations of the tithes; [363] and the witness distinctly understood from him that the 10,000 which he had provided for his niece Julia by his will, and the 10,000 secured by the settlement made on her marriage, were one and the same sum, as he uniformly declared that the fortune of his niece Julia, as well as of each of the younger daughters of his brother, was to lie 10,000. Miss Barrington, in her answer to this ninth interrogatory, stated that Sir John Barrington had had frequent conversations with her on the subject of her sister, Lady Simeon's settlement; that he had often said that he intended to place her in the situation of heir to his Swainston estate. The witness recollected his stating that he had settled 10,000 on her sister Julia, on her marriage with the Plaintiff; that Sir John Barrington had told her that the said 10,000 was the portion or fortune of her sister Julia: and that she had heard from him that he intended to give each of his nieces (the witness and her sisters) a similar sum of 10,000. Another witness, examined on the part of the Defendants, Sir Richard and Lady Simeon and their son, was Thomas Cocks, who was the confidential medical attendant of Sir John Barrington in Essex. Mr. Cocks stated, in answer to the ninth interrogatory, that he was on terms of intimacy and confidence with Sir John Barrington, from about the year 1816 until his death ; that within the last two months of his life he frequently spoke to the witness upon family matters. The witness could not undertake to recollect the particulars of those conversations; but he remembered that the general purport and effect of them was that Sir John Barrington's estate at Swainston would go to the eldest son of his eldest niece, now Lady Simeon, and that he had amply provided for all the younger daughters of his brother after [364] his brother's death, by portions secured on that estate; and the witness thought he understood from him that a fund was to be formed by the accumulations of the great tithes of Hatfield Broad Oak, so as to make up to the possessor of the Swainston estate what he would have to pay in respect of the portions of the younger daughters of Fitzwilliam Barriugton. The witness did not recollect Sir...
To continue reading
Request your trial
- Leow Yong Moey and Others; Lim Soo Siam v; the will dated 4 November 1927 and the codicil dated 27 July 1929 of Leow Chia Heng, deceased
-
Lyddon v Ellison
...other than the eldest; Hall v. Hewer (Ambl. 203); Ex parte Pye (18 Ves. 140); Powys v. Mansfield (3 Myl. & Cr. 359, reversing S. C. 6 Sim. 528); Pym v. Lockyer (5 Myl. & Cr. 29); and the cases cited in 2 Speuce's Eq. Juris, (pp. 400-402). Mr. Follett, for Julia Trevelyan. This is an absolut......
-
Morley v Linkson
...(1 Atk. 361 ; S. C. West, Eep. temp. Lord Hardwicke, p. 350; see cases there cited); Gordon v. Gordon (1 Mer. 141); Powys v. Mansfield (3 My. & Cr. 359); Doe v. Evans (10 Ad. & El. 228); and the 2 HAKE, 579. MORLEY'V. RENNOLDSON 239 following text-books:-1 Story's Equity Jurisprudence, p. 2......
- Fairweather v Fairweather