The Earl of Westmeath v The countess of Westmeath
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1821 |
| Date | 01 January 1821 |
| Court | High Court of Chancery |
English Reports Citation: 37 E.R. 797
HIGH COURT OF CHANCERY
[126] The Earl of westmeath . The Countess of westmeath. March 20, 21, 22, 1820; May 24, 29, 1821. Injunction to restrain proceedings at law for recovering an annuity secured to the wife by a deed of separation, not containing any covenant to indemnify the husband from her debts, refused. By indenture dated the 17th of December 1817, between the plaintiff of the first part, the defendant the Countess of Westmeath of the second part, and W. Sheldon, a trustee, of the third part ; reciting a deed executed in May 1812, upon the marriage of the plaintiff and defendant, by which he had covenanted to secure to her a jointure of 3000 per annum out of his estates in Ireland, but that no provision had been made for the issue of the marriage ; and reciting that disputes and differences had for some time past existed between the plaintiff and defendant, and had arisen to such a height that they were on the point of separating, but by the intervention of mutual friends, the defendant had consented to live and cohabit with the plaintiff, after he should have executed this deed ; and reciting, that there wasthen issue between them one daughter only, the plaintiff covenanted to convey certain estates to the use of Sheldon, his executors, &c., for ninety-nine years with remainder to the use of trustees for two hundred years, with remainder to the use of the plaintiff for life, with remainder to the use and intent that the defendant might in case of surviving the plaintiff receive a jointure of 3000 per annum, with remainder to trustees for one thousand years, with other remainders for the benefit of the issue of the marriage, 798 WEHTMEATH (KARL of) V. WE8TMKATH (oOUNTKSS of) JACOB, 127. with the ultimate remainder to the plaintiff in fee. The trusts of the term of ninety-nine years were, and it was declared that the defendant had agreed to live with the plaintiff, upon the express condition, that in case it should unfortunately happen, that by a renewal of such disputes and differences as had [127] nearly caused such separation as aforesaid, the defendant should find herself compelled to cease to cohabit with the plaintiff, or live apart from him, Sheldon should, out of the rente and profits, or by sale or mortgage, raise such annual sum as should then by the advice of their mutual friends be agreed upon, as a proper and sufficient sum for the separate maintenance of the defendant, which was to be paid as she should appoint, and in default of appointment, into her own hands for her separate use. The plaintiff agreed in that event to execute such articles of separation as were usual in such cases, and necessary for the security and comfort of the defendant and he covenanted to permit their daughter and such other child or children as they might have between them, to be and reside with their mother the defendant, and to be educated under her care and superintendence ; the trustee was empowered to raise money for their maintenance and education, by means of the ninety-nine years' term. It was declared that the term and the provision thereby agreed to be made were not to become void by reason of any subsequent raconciliation, but the payment only was to be suspended, and to be revived if at any future time any other separation should unfortunately take place; but such separation only to take place in case of ill usuge or gross abuse from the plaintiff to the defendant. The trusts of the term of one thousand years were to raise portions for younger children. By another indenture dated the 30th of May 1818, and executed in August in that year, between the plaintiff and defendant of the cne part, and trustees of the other part; after reciting that the plaintiff had, at the particular instance and at the sole desire of the defendant, agreed to live separate and apart from her, and to allow to her during their joint lives, a separate mainten-[l28]-ance for her and her child or children, the plaintiff demised several estates in Ireland to the trustees, their executors, &c., for ninety-nine years, if the plaintiff and defendant should so long live, upon trust out of the rents and profits, or by sale or mortgage, to raise 1300 per annum ; and after six years an additional sum of 300 per annum, to be paid as the defendant should appoint, and in default of appointment intD her own hands for her separate use; and subject thereto, in trust for the plaintiff. The 300 per annum was to be raised for the maintenance of their daughter, and of the child of which the defendant was then encient; if one of the children died, 250 only was to be raised, which was to cease in case of the death of both. The deed contained covenants on the part of the plaintiff for payment of the 1300 and 300 per annum to the trustees, that he would not intermeddle with the monies to come to the hands of the defendant by virtue thereof; and that she should have power by deed or will to dispose of the arrears and savings of the annual payments, as well as of her jewels, and whatever other personal property she might acquire, or which might devolve upon her. He also covenanted that the defendant might, notwithstanding her coverture, live separate and apart from the plaintiff, as if she were sole and unmarried, and that she should from thenceforth be freed and discharged from the power, command, restraint, controul, authority, and government of the plaintiff, and might live and reside in such place and places, and in such manner as to her should from time to time seem meet; and that he would not molest or disturb her in her manner of living, or require or by any manner or means whatever, either by ecclesiastical censures, or by taking out any process, or by commencing or inatituting any suit whatever, compel the defendant to cohabit or live with him ; and that he would not for that purpose or otherwise use any force, violence, or restraint to her [129] person, or sue or molest, or cause to be sued or molested, any person or persons for receiving, harbouring, lodging, protecting, or entertaining her, but that she might in all things live as if she were sole and unmarried, without his restraint or coercion, or that of any other person or persons by his means, privity, or procurement. There was no clause for indemnifying the plaintiff from the defendant's debts. Subsequently to this deed, in November 1818, Lady Westmeath was delivered of a son. The bill filed in June 1819 against Lady Westmeath, her children, and the trustees, JACOB, 130. WESTMEATH (EARL of) 1). WESTMEATH ( COUNTESS ()[') 799 prayed that these deeds might be delivered up to be cancelled, or that so much of them as provided a separate maintenance for the defendant, and for the children, might be declared void, and an injunction in the mean time, the plaintiff being willing to live with and support...
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