The Earl of Bradford v The Earl of Romney
| Jurisdiction | England & Wales |
| Judgment Date | 21 February 1862 |
| Date | 21 February 1862 |
| Court | High Court of Chancery |
English Reports Citation: 54 E.R. 956
ROLLS COURT
S. C. 31 L. J. Ch. 497; 6 L. T. 208; 8 Jur. (N. S.) 403; 10 W. R. 414. Explained, Harris v. Pepperell, 1867, L. R. 5 Eq. 4. See Clark v. Girdwood, 1877, 7 Ch. D. 18.
[431] the earl of bkadi.-okd v. the earl ov komney. Feb. 10, 21, 1802. fr. [S. C. 31 L. J. Ch. 497 ; fi L. T. 208 ; 8 Jur. (N. S.) 403 ; 10 W. R. 414. Explained, Harris v. Pepperell, 1867, L. K. 5 Eq. 4. See Clark v. Girdwood, 1877, 7 Ch. D. 18.] On a question of construction of a written instrument, no evidence of the intention of the parties is admissible, though extrinsic evidence may be adduced to shew the position of the parties, the state of the funds and the rights and interests of the parties in them. But in a suit to reform a written instrument, evidence of intention is admissible. Therefore, in a suit raising both questions, the Court, though it received the evidence on the one point, rejected the same evidence when considering the other. The Court will only rectify a deed when the mistake is shewn to be an error common to both parties, and it is essential that the extent of the rectification should be clearly ascertained and defined by evidence cotemporaneous with or anterior to the deed. In June 1819, on the marriage of the Honorable Kobert Clive with Lady Windsor, a settlement was made, by which, in the events which had since occurred, 31,166, 13s. 4d. became divisible amongst the younger children of that marriage, on the death of the survivor of their father and mother ; their interests were to become vested at twenty-one or marriage, with a gift over to the survivors of the share of any child who should die before acquiring a vested interest. There were originally seven younger children, two died in infancy before the year 1853, so that in November 1853, this sum was apparently divisible into fifths. In November 1853 Henrietta Sarah, the eldest daughter of Mr. Clive and Lady Windsor, and who had previously attained twenty-one, intermarried with Mr. Hussey. Miss Clive had, at that time, a vested interest in one-fifth of the fund iti question. On the occasion of this marriage a settlement was executed, bearing date the 24th of November 1853. It was made between Miss Henrietta Sarah Clive of the first part, Mrs. Hussey of the second part, and the Earl of Itomney and two other trustees of the third part. After stating the parties it proceeded directly as follows : - "Whereas a marriage has beeu agreed on and is intended shortly to he solemnized between the said [432] Edward Hussey and the said Henrietta Sarah Clive. And whereas, upon the treaty for the said intended marriage, it was agreed that the sum of 10,000, to which the said Henrietta Sarah Clive is entitled in possession, should be settled upon the trusts and in manner hereinafter expressed, and it was also agreed that whatever other property, real or personal, to which the said Henrietta Sarah Clive or the said Edward Hussey in her right should become entitled to during the said intended coverture should also be settled upon the trusts and in manner hereinafter expressed. And whereas, in contemplation of the said intended marriage, the said sum of 10,000 has, with the privity of the said Edward Hussey, been invested in the purchase of 10,512, 9s. 8d. 3 per cent, consolidated Bank annuities, which sum ia now standing in the names of the said Charles Marsham Earl of Romriey, William Courtenay Morland and Robert Clive, in the books of the Governor and Company of the Bank of England." The indenture then witnessed that the trustees should stand possessed of this sum of 10,512, 9s. 8d. consols in trust, after the marriage, for Mrs. Hussey for her life, for her separate use without power of anticipation; and after her decease to Mr. 30BEAV. 433. BRADFORD V. ROMNEY 957 Hussey for his life, and after the decease of the survivor, for the first son of the marriage who should attain twenty-one ; and if none, then in trust for the daughters of the marriage...
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