The Marquess of Breadalbane v The Marqaues of Chandos
| Jurisdiction | England & Wales |
| Judgment Date | 18 November 1837 |
| Date | 18 November 1837 |
| Court | High Court of Chancery |
English Reports Citation: 40 E.R. 811
HIGH COURT OF CHANCERY
[711] the marquess of breadalbane v. the marquess of chandos. Dfc. 6, 7, 8, 1836 ; July 22, 1837. [S. C. 7 L. J. Ch. (N". S.), 28.] 'On a treaty of marriage, carried on in London, between the only son of an English marquess and the daughter of a Scotch earl, the terms of a marriage settlement were embodied in a paper called " proposals ;" which paper was approved by the respective fathers, on behalf of their children. The proposals stipulated that the earl should pay or advance, as the portion of his daughter, certain sums of money, at the times, and in the manner therein specified ; and that, in consideration of those sums and of the marriage, the mare[iiess and his son should concur in charging large estates in England, Ireland, and the West Indies, with certain provisions for the husband, during his father's life, and for the wife and the younger children of the marriage; and, subject thereto, should settle the samo estates upon the marquess and his son successively, for life, with remainders to the issue of the marriage, according to the series of limitations therein specified. The proposals concluded with a proviso, that the settlement should contain the usual powers of appointing new trustees, the usual clause of indemnity to trustees, .and all other usual and necessary clauses. A settlement was then prepared and executed in London, to which the intended husband and wife, with their respective fathers, and certain other persons, as trustees, were parties, and of which the provisions, though different in several particulars, were similar in their general character to the terms contained in the proposals ; and the marriage took effect. Many years afterwards, the earl, who was a domiciled Scotchman, died, leaving a large personal estate: and a suit having been thereupon instituted in Scotland, in which all persons, who were competent to contest the question, intervened, it was .adjudged by the Court of Session, and also, on appeal, by the House of Lords, that according to the law of Scotland the daughter of the deceased earl was entitled to .a proportionate share of her father's personal estate, called, in that law, her Itgitiin, inasmuch as she had not renounced that right by her marriage settlement, or otherwise. Very shortly before this decision of the Court of Session, thu proposals, which had been mislaid, were discovered ; and the present bill was then filed against the husband and wife, alleging that the settlement had been prepared 812 MARQ. OF BREADALBANE V. MAHQ. OF CHANDOS 2 MY. & CK. 712. in pursuance, and on the basis, of the proposals ; that in Scotland, a clause barring kgitim was a usual and necessary clause in the marriage settlement of a child for whom the father thereby advanced a portion; that the proviso in the proposals, was understood, by all the contracting parties, as applying to and comprising such a clause; that as no such clause was to be found in the settlement, as executed, the settlement did not effectuate the intention of the contract, as expressed in the proposals; and that it was in this respect erroneous, and ought to be reformed. The bill prayed a declaration accordingly, and that, in the meantime, the Defendants might be restrained by injunction from proceeding to enforce the decree obtained in the Scotch Court for payment of the sum found due to tlie Defendants on account of the legitim. The Lord Chancellor dissolved the injunction, which had been granted by the Vice-Chancellor, and held: first, that the proviso was to be construed with reference to the subject-matter and objects of the settlement, which was in the English form, and applied exclusively to English subject-matter ; and that a clause barring legitim, therefore, could not be considered as comprehended under it; secondly, that whereas the claim to leyitim could only be barred by an express contract, between the father and the daughter, to that effect, the father, iu approving of the proposals, was acting on behalf of his daughter, and not as a party dealing adversely with her, for the purchase or renunciation of her rights ; thirdly, that there was no sufficient evidence to shew that the proposals constituted the final contract of the parties, and had not been varied by some subsequent agreement, prior to the execution of the settlement. The Court will not reform a settlement, on the ground of mistake, unless the evidence, as to the mistake, and as to the real intention of the parties, is perfectly clear and satisfactory. Whether the Court would entertain such a suit, on the ground of the discovery of matter constituting a new case, after the subject of the suit had been adjudicated upon and disposed of by a foreign tribunal of competent jurisdiction, when it did not appear that the new matter might not still be made available before the foreign tribunal, according to the course of proceeding there, quit re. Early in the year 1819 a marriage having been agreed upon between the Marquess of Chandos (then Earl Temple), the only son of the Duke (then the [712] Marquess) of Buckingham, and the Lady Mary Campbell, the youngest daughter of the late Marquess (then the Earl) of Breadalbane, the arrangement of the terms upon which a settlement in contemplation of that event should lie made was referred, by the fathers of the respective parties, to the Tit. Hon. Thomas Grenville and the Earl of Lauderdale, the former of whom represented the Duke of Buckingham, and the latter the Marquess of Breadalbane. The treaty which followed was carried on in London, where the respective families, of the parties were then residing; and the conduct of it was left entirely to Mr. Grenville and Lord Lauderdale, who, in the course of the negotiations, caused certain terms, of which they jointly approved, to be drawn up in a paper called " A sketch of the proposed settlement," &c. This sketch specified the several sums which, it was intended, should be paid or secured by Lord Breadalbane on the marriage of his daughter, and then proceeded to give an outline of the provisions which, in the opinion of the referees, were proper to lie contained in the settlement, to be made by the Duke of Buckingham, of his real estates, on the marriage of his sou, and of tho-various charges to be imposed on those estates, in favour of the intended wife and the younger children of the marriage. The [713] sketch, having been signed by Mr. Grenville and Lord Lauderdale, was transmitted to Mr. Vizard, an English solicitor resident in London, who was employed in the transaction as the solicitor and professional adviser of Lord Breadalbane ; and the provisions which it contained were soon afterwards embodied by that gentleman, with some trifling variations, and in a more expanded form, in another paper intituled "Proposals for a settlement," &c., a copy of which was sent to Mr. Robson, the solicitor and agent of the Duke of Buckingham and the Marquess of Chandos, for their approval. The proposals began by stating that three sums of 10,000 each were to be advanced or secured by Lord Breadalbane, by way of portion for his daughter on her marriage, and declaring the manner in which, and the times when, they were to be so 2 MY. & CE. 714. MARQ. OF BREADALBANE V. MARQ. OF CHANDOS 813 advanced or secured respectively : they next stated the several terms of years which it was proposed to create out of the Duke of Buckingham's estates in the counties of Bucks, Oxon, Warwick, and Hants, and in Ireland and the West Indies (the yearly income of which estates was stated to he 44,500), for the purpose of providing an annuity of 5000 for Lord Chandos during the life of his father, and pin-money and a jointure for the intended wife, and certain allowances and portions for the younger children of the marriage, in the different events which might arise. They then proceeded to provide for the settlement of the same estates, subject to those trust terms, upon the Duke of Buckingham and Lord Chandos, successively, for their respective lives, with remainders to the first and other sons of the marriage successively, in tail male, with divers remainders over. The proposals then went on to specify, in detail, the particular trusts upon which the several terms of years were to be held by the respective trustees, with a view to the [714] various contingencies therein expressed and provided for ; and, for that purpose, they reserved to the intended husband and wife certain powers of appointment, in different events, over the sums which were to be secured upon, or raised by means of the trust terms. The proposals concluded in these words,-" the settlement to contain the usual powers of .appointing new trustees, the usual clause of indemnity to trustees, and all other usual and necessary clauses." These proposals having been submitted to the Duke of Buckingham and Lord Breadalbane, and approved of by them, subject to some variations, the precise nature of which did not appear, were subsequently returned to Mr. Vizard; under whose instructions a settlement was soon afterwards prepared by an eminent conveyancing counsel in London. The settlement was dated the llth of May 1819, and was made between the Duke of Buckingham of the first part, the Marquess of Chandos of the second part, the late Marquess of Breadalbane of the third part, the Lady Mary Campbell, now the Marchioness of Chandos, of the fourth part, and the different trustees of the fifth, sixth, and seventh parts respectively; and it was duly executed by all parties. It recited, among other things, that, upon the treaty for the intended marriage, it was agreed that Lord Breadalbane should pay or secure the sum of 30,000 as the portion or fortune of Lady Mary Campbell; of which the sum of 10,000 was to be paid on or before the solemnization of the marriage, the further sum of 10,000 at the expiration of eighteen...
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