The Most Honourable George Thomas John, Marquess of Westmeath, - Appellant; The Most Honourable James William Brownlow Cecil, Marquess of Salisbury; Henry Widman Wood, Esquire; the Honourable and Reverend Gerald Valerian Wellesley; William Sheldon, Esquire; the Most Honourable Emily Anne Bennet Elizabeth, Marchioness of Westmeath; and Lady Rosa Nugent, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1831 |
| Date | 01 January 1831 |
| Court | High Court of Chancery |
English Reports Citation: 5 E.R. 349
COURT OF CHANCERY.
Mews' Dig. iv. 150; vii. 986. S. C. (Westmeath v. Westmeath) 1 Dow & C1. 519. Among the numerous cases in which this case has been dealt with, it may suffice to refer to Wilson v. Wilson, 1848, 1 H. L. C. 538; 5 H. L. C. 40 (and see the notes to that case in 1 Wh. & T. L. C. 7th ed. pp. 577, 597, 611); Cartwright v. Cartwright, 1853, 3 De G. M. & G. 982; H. v. W. 1857, 3 Kay & J. 386. And see Rowell v. Rowell, [1900] 1 Q. B. 9; and Marlborough (Dowager Duchess of] v. Marlborough (Duke of), [1900] 17 T. L. R, 137; Macan v. Macaw, [1900] ib.131.
[339] IKELAND. COURT OF CHANCERY. The Most Honourable george thomas john, Marquess of westmeath, - Appellant; The Most Honourable james william brownlow cecil, Marquess of salisbury ; henry widman wood, Esquire ; the Honourable and Eeverend gerald valerian wellesley ; william sheldon, Esquire ; the Most Honourable emily anne bennet elizabeth, Marchioness of westmeath; and Lady eosa nugent, - Respondents [1831]. [Mews' Dig. iv. 150; vii. 986. S.C. (Westmeath v. Westmeath) 1 Dow & 01. 519. Among the numerous cases in which this case has been dealt with, it may suffice to refer to Wilson v. Wilson, 1848, 1 H. L. C. 538 ; 5 H. L. C. 40 (and see the notes to that case in 1 Wh. & T. L. C. 7th ed. pp. 577, 597, 611) ; Cartwright v. Cart-wright, 1853, 3 De G. M. & G. 982 ; H. v. W. 1857, 3 Kay & J. 386. And see Rowell v. Rowell, [1 900] 1 Q. B. 9 ; and Marlborough (Dowager Duchess of] v. Marlborough (Duke of), [1900] 17 T. L. R, 137; Macan v. Macaw, [1900] ib.131.] By a deed dated in 1817, after reciting that disputes had existed between W., and E., his wife, and that they had been on the point of separation, it was witnessed, that in consideration that the wife had consented to cohabit with the husband, he had covenanted with S. (a trustee) to convey estates to his use, etc. for ninety-nine years, etc. The trusts of this term were, that in case the wife should find herself compelled by a renewal of the disputes, to cease to cohabit with her husband, or live apart from him, that a sufficient annuity for her separate maintenance should be raised out of the rents, or by sale or mortgage of the term ; and in that event the husband agreed to execute articles of separation. The deed contained no covenant by the trustee, indemnifying the husband against the debts of the wife. After the execution of this deed, the husband and wife continued to live together. [340] By an indenture in 1818, made between the husband and wife and trustees, after reciting that the husband, at the desire of the wife, had agreed to live separate and apart from her, and to allow her a separate maintenance, the husband demised the estate to trustees for a term, to raise provisions for the wife and an infant daughter ; and the husband covenanted that the wife might live separate and apart from him, and free from his authority and control, etc. This deed contained no indemnity against debts. The parties continued to live in the same house, although they slept in separate 349 ' V BLIGH N. S. WESTMEATH V. SALISBURY [1831] rooms, and met at board, and appeared in the world as man and wife until June, 1819, when they finally separated. In 1822, the trustees in the deed of 1818, distrained upon the tenants of the land charged with the annuity to the wife. Upon bill filed in equity and appeal, held, that the deeds were void ; the first, as providing for a prospective separation ; and the second, because there was a reconciliation. In the year 1812, a marriage was duly had and solemnized between the Appellant and the Respondent Emily Anne Beniiet Elizabeth (Cecil), who thereupon became Marchioness of Westmeath. By settlement made upon the occasion of the marriage, the Appellant secured to the Respondent the Marchioness of Westmeath a jointure of £3000, and an annuity of £500, in the nature of pin-money. By a deed bearing date the 17th of December, 1817, and made between the Appellant of the first part, the Respondent the Marchioness of Westmeath of the second part, and the Respondent William Sheldon of the third part; after reciting the deed of marriage settlement, bearing date the 29th of May, 1812. and entered into upon the marriage of the Appellant with the Respondent the Marchioness of Westmeath, by which he covenanted to secure to her a jointure of £3000 per annum out of his estates in Ireland, but that no [341] provision had been made for the issue of the marriage, and that disputes and differences had for some time past existed between the Appellant and the said Respondent, and had arisen to such a height, that they were on the point of separating, but that, by the intervention of mutual friends, the said Respondent had consented to live and cohabit with the said Appellant, after he should have executed the deed now in recital, and that there was then issue between them one daughter only, namely, Lady Rosa Nugent, one of the Respondents : it was among other things witnessed, in consideration that the Respondent the Marchioness of Westmeath had consented to live and cohabit with her said husband, he the Appellant for himself etc. covenanted with the Respondent William Sheldon, to convey certain estates to the use of the Respondent William Sheldon, his executors, administrators, and assigns, for ninety-nine years, with remainder to the use of trustees for two hundred years, (the term in the marriage settlement of 1812, and upon the trusts therein declared,) with remainder to the use of the Appellant for life, with remainder to the use and intent that the Respondent the Marchioness of Westmeath might, in case of surviving the Appellant, receive a jointure of £3000 per annum, with remainder to trustees for the term of 1000 years, with other remainders for the benefit of the issue of the marriage, with ultimate remainder to the Appellant in fee ò and the trusts of the term of ninety-nine years were and it was declared, that the Respondent the Marchioness had agreed to live with the Appellant upon the express condition, that in case it should unfortunately happen, that by a renewal of such disputes and differences [342] as had nearly caused such separation as aforesaid, the Respondent the said Marchioness should find herself compelled to cease to cohabit with the Appellant or live apart from him, the said Respondent William Sheldon should out of the rents, issues, and profits, or by sale or mortgage of the said estates, 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 Respondent the Marchioness of Westmeath, which should be paid as she should appoint, and in default of appointment, into her own proper hands for her separate use : and the Appellant thereby 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 Respondent the Marchioness : and he thereby also 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 said Respondent the Marchioness of Westmeath, and to be educated under her care and superintendence ; and the trustee was by the said deed empowered to raise money for their maintenance and education by means of the said term of ninety-nine years : and it was by the said deed declared, that the said term and the said provision so agreed to be made, as well as for the said Marchioness by way of separate maintenance, as for the education of the Respondent Lady Rosa Nugent and any other child or children who might be born, were not to become void by reason of any subsequent reconciliation, but the payment only was . 350 WBSTMEATH V. SALISBURY [1831] V BIIGH N. S. to be suspended, and was to be revived if at any future time any other separation should unfor-[343]-tunately take place, but such separation only to take place in case of ill usage or gross abuse from the Appellant to the said Marchioness ; and the trusts of the term of 1000 years were by the deed declared to be to raise certain portions for younger children. This indenture was executed by all the parties thereto. After the execution of the deed of the 17th of December, 1817, the Appellant and the Respondent, the Marchioness his wife continued to live together, and in the early part of the year 1818 the Respondent the Marchioness became pregnant a second time. By another indenture, which was dated the 30th of May, in the year 1818, though not executed until the 10th day of August in that year and made between the Appellant and the Respondent the Marchioness of Westmeath of the one part; and the Respondents the Marquess of Salisbury, by his then style and title of Lord Viscount Cranborne, and Henry Widman Wood, Esquire, of the other part; after reciting that the Appellant had, at the particular instance and at the sole desire of the Respondent the Marchioness his wife, agreed to live separate and apart from her, and to allow to her during their joint lives a separate maintenance for her and her child or children, the Appellant demised several estates in Ireland to the Respondents the Marquess of Salisbury and Henry W. Wood, their executors, administrators, and assigns, for ninety-nine years, if the Appellant and the said Respondent, the Marchioness his wife should so long live, upon trust, out of the rents and profits, or by sale or mortgage, to raise £1300 per annum; and after [344] six years, an additional sum of £300 per annum, to be paid as the...
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