The Marquis of Breadalbane and the Trustees of the late Marquis of Breadalbane, - Appellants; The Marquis and Marchioness of Chandos, - Respondents
| Jurisdiction | Scotland |
| Judgment Date | 23 May 1836 |
| Date | 23 May 1836 |
| Court | Court of Session |
English Reports Citation: 7 E.R. 17
FROM THE COURT OF SESSION IN SCOTLAND.
Mews' Dig. v. 1575; x. 1288; xii. 1045; S.C. 2 My. and Cr. 711; 7 L. J. Ch. 28. Cited on point as to law applicable (4 Cl. and F. 55) in Bunbury v. Bunbury, 1839, 1 Beav. 324.
BREADALBANE V. CHAN DOS [1836] IV CLARK & FINNELLY. APPEAL from the court of session in scotland. The MARQUIS OF BREADALBANE arid the Trustees of the late Marquis of Bread-a.lba,ne-Appellants ; The MARQUIS and MARCHIONESS OF CHANDOS - Respondents [May 18, 21, 23, 1836]. [Mews' Dig. v. 1575 ; x. 1288; xii. 1045 ; S.C. 2 My. and Cr. 711; 7 L. J. Ch. 28. Cited on point as to law applicable (4 Cl. and F. 55) in Bunbury v. Bunbury, 1839, 1 Bea,v. 324.] An advance of a marriage portion to a daughter does not of itself by the law of Scotland bar her claim to legitim. Such a claim cannot be barred by implication. A marriage contract, in which the father of the lady agreed' to pay a certain sum of money " as the portion or fortune of his daughter," and which then went on to describe how the sum should be paid partly in his lifetime and partly out o f his estate after his death, was held not to- be capable, without more, of barring her claim to legitim. An heir of entail, who is not so by exclusive destination, must collate the real estate of which he has as such heir become possessed, before he can claim his share of the legitim of the last holder in tail, to whom he is both heir and next of kin. This was a proceeding in multiplepoinding, originally raised at the instance of the trustees of the late [44] Marquis of Breadalbane against the present Marquis and others, for the purpose of settling the distribution of the personal estate of the deceased Marquis. The Marchioness oi Chandos was one of the daughters of the late Lord Breadalbane. The claimants, Lord and Lady Chandos, were married on the llth of May 1819. The marriage settlements were prepared and executed in the English form of an indenture, to which the Duke (then* Marquis) of Buckingham, father of Lord Chandos (then. Earl Temple) and the late Marquis (then Earl) of Breadalbane, were also parties. By this indenture Lady Chandos was provided for, out of the family estates of the Duke of Buckingham, by an annuity, which was to vary in certain events from 2500 to 3500 respectively. This provision was, by an express clause in the deed, declared to be in full of all Lady Chandos's legal rights, as widow, by the law of England. On the other hand, there was no corresponding discharge of Lady Chandos's legal rights with reference to the law of Scotland but the deed of settlement contained the following clauses: " And whereas a marriage is intended to be had and solemnized between the said Richard Plantagenet Earl Temple and the said Lady Mary Campbell; and whereas upon the treaty for the said intended marriage, the said John Earl of Breadalbane agreed that he would pay or secure the sum of 30,000, as the portion or fortune of the said Lady Mary Campbell, in the manner hereinafter mentioned (that is to say), the sum of 10,000, part thereof, to be paid on or before the solemnization of the said intended marriage; the farther sum of 10,000 to be paid at the expiration oi 18 calendar months from the day of the solemnization of the said intended marriage, and to carry [45] interest in the meantime at the rate of 5 per cent, per annum ; and the remaining sum of 10,000 to be paid within six calendar months, next after the decease of him the said John Earl of Breadalbane, with interest from the day of his decease: and it was agreed that the said Richard Marquis of Buckingham should receive from the said John Earl of Breadalbane the said two sums of .10,000 and 10,000, first and secondly hereinbefore mentioned, together with the interest of the said sum of 10,000 secondly hereinbefore mentioned, from the day of the solemnization, of the said intended marriage; and in consideration thereof, should enter into such covenant as is hereinafter contained, for the payment of the said sum of 20,000 within tvro years after the solemnization of the said intended marriage, and to1 pay interest for the same in the meantime; a,nd that the said sum of 20,000, and the interest thereof, should be further secured in the manner hereinafter expressed; and it was agreed that the said sum of 20,000 so to be covenanted to be paid by the said Richard Marquis of 17 IV CLARK & FINNELLY. BREADALBANE V. CHANDOS [1836] Buckingham, and the said sum of 10,000, the residue of the said portion of 30,000 to be secured by the bond of the said John Earl of Breadalbane, and to be payable after his decease, and the several securities for the same, should be vested in the said George Neville and John Viscount Glenorchy, their executors, administrators, and assigns, upon, and for such trusts, intents, and purposes, and with and under and subject to such powers, provisions, limitations, declarations, and agreements, as...
To continue reading
Request your trial
-
Small v The Governor and Company of The Bank of Ireland
...including the observations of Lord Cottenham in the House of Lords in Marquis of Breadalbane v. Marquis and Marchioness of Chandos (1836) 7 E.R. 17 and the House of Lords decision of the former Chancellor of Ireland, Lord Redesdale, in Chamley v. Lord Dunsany 2 Sch. & Lef 690 in support of ......
-
The Marquess of Breadalbane v The Marqaues of Chandos
...... the usual powers of appointing new trustees, the usual clause of indemnity to trustees, .and ... Mary Campbell, the youngest daughter of the late Marquess (then the Earl) of Breadalbane, the ... part, the Lady Mary Campbell, now the Marchioness of Chandos, of the fourth part, and the different ......