The Express.
London, England, 1848-08-22 00:00:00

lab) ?intellistna.

1101:18B OF LORDS.
The Lord Chancellor, Lord Brougham, and other peen,
met at II o'clock to give judgment in the following cases, all
of which were argued last ammon.

-
COLT P. SEWSLL AND °TRIM. LIMITATIONS OP 1
EsTATIS IN A DEID.—RIXAINDIES.—RIXOTINISS.—This
was an appeal glom a decree of Srl Edward Eiugden, when
Lord Chancellor of Jr land and was 'rimed during several
days la February, 1847, and then reported in the Bs-
. The main question arose on the validity of certain
Ymtlstlsns in a deed executed by Mr. Peter Daly, in 1762.
He hell three daughters, his only children : one married to
Fianna Kingsland, the second to the Earl of Louth, and
the third to the Earl of Kerry. He was seised of large
weiete, and, for the purpose of settling them tor the benefit
of his dwellers and their issue, he by the said deed granted
Er obis to trnatess for hie own use kw his life, with re-
naleisr—subject to his wife's dower, end to the trusts of a
teem ogle years—to the ass of his three daughters for their
respeative lives, as tenants in ecemarns, with remainder to
the ma of their respective first and ether eons, severally and
weemelody. and their several hells male ; and if any of the
said diensimmedssmid die whim* ism reale her share was to
go
Utile enevivessibring theirvespestive lives.withnmalader
to their OM and NW setasesesesively in Mil male ; and d
ail the dovalsou Aida Ms without Pete .sale then to their

daughters as tenants in common, and the heirs several of
their bodies; and in case any of the daughters of P. Daly
should die without any issue the share or shares of them so
dying should go to the daughters of the survivors as tenant&
in common, and the heirs of their bodies, with divers re-
mainden over and ultimate remainder. in fee to the heirs of
P. Daly. He died soon afterwuds without dispostog of this
reversion, whit*, therefore, descended on his three daughters
as his co-heiresses at law. Lady King'land and the Countess
of Kerry had any Woe, and the Countess of Louth
had no male issue, but had four daughters, the first of whom,
named Matilda, died in 1788, in her mother's lifetime, un-
married and intestate; the second married the Earl of
Howth, and had four daughters and no son ;the third, named
Elizabeth, was married three time' first to a Mr. &well,
samodly to a Mr. Duffield, sal thirdly to a Mr. Russell.
After the marriage with Mr. Sewell a settlement was exe-
cuted, and other deeds subsequently, ealing with the lady's
shares and interests as vested remainders under the said deed
executed by P. Daly. There was issue of that marriage, a
soni T. B. Henry Sewell, who is the respondent in this
daughter,op-
Elizabeth, who married a Mr.
Me', and whose n by that marriage la the appellant
By one of the deeds executed by Lady Elisabeth Sewell and
her husband, Mr. Sewell, dated in 1779, for the purpose of
barring the estate tail in remainder vested in her in the pro.
piety comprised in the deed of 1752, and making a provision
be her and the said two children, and of paying debts, she
and he covenanted with trustees to levy fines of all her un-
divided shares in remainder and reversion in the said pro-
pet, to the uses of trustees for terms of years, for raising
mosey, and subject thereto in trust for herself for her life,
MEd •fter death for her said ion in tail male, with remainder
to her said daughter and her daughters as tenants in Non
yeas. The fines were levied soon after. Lady Elizabeth
Sewell had no other children by any of her husbands. Lady
Kingeland died in 1784; the Counter of Loath died in 1703,
and the Counters of Kerry in 1799, and all three died in-
testate and without disposing of the reversion in lee which
descended to them in the said estates. A partition of the
estates was decreed in 1809, and one-third of them, as the
share of Lady Elizabeth Sewell, was conveyed to the uses of
the previous deeds executed by her. She died in 1838,
having by her will, dated 1834llant. devised all her real castes
to her grandson (the appe) and his heirs He riled the
bill in this suit in 1840, claiming the whole of one-third does
Sewell the said esteem, except the EY'
nufnisiZelliftbertt in
theshore to which she was gadded
under the deed of 1752. The respondent and his chilies,
the prinoi3al defendants, claimed to be entitled to the whole
of his mother's share of the estates. The Lord Chancellor,
on the first hearing of the cause, rent a case for the opinion of
the Court of Common Pleas, and the judges there, in answer
to his lordship's questions, certified-Ist, that st the time of
the execution of the settlement of 1779, Lady E. Sewell was
entitled under the deed of 1752 to a vested remainder in tail
in one-feurtb of her mother's one-third of the estates expec-
tant on the death of her mother and two aunts without
issue male, and to an enlarged remainder in tail in one-
fourth of each of the respective ate-thirds of the aunts ex-
pectant on their deaths without hue ; 2nd, that all the
mutes to which Lady E. Sewell was :sof entitled under the
duo of 1752 passed under and were boand by the settlement
of 1779, and the fines levied in pursuance of it; and, 3rd, that
the whole of the one-third of the estates allotted by the
decree of partition tit Lady Elizabeth was subject to the uses
of that settlement. The Lord Chancellor (of Ireland) in an
elaborate judgment (reported in 4 Drury and Warns),
adopted the certificate of the judges, and decreed accordingly,
holding (on the main question) that the last limitation of
the estates in the deed of 1752, in ease of the failure of issue
generally of any of the daughters of Peter Daly, to the
daughters of the survivors or interim, was a good centime,
remainder, and not void for remoteness; that the said words
" survivors or survivor " were to be read " others or other ;"
and consequently that the limitation over to the daughters
of one of the three daughters of Peter Daly who had issue
was not defeated by her death is the lifetime of another of
them, who died subsequently without issue, but that such
limitation took effect u a cross remainder.
The Lied Chancellor, new moving the judgment of the
house, stated the limitations on which the main question was
raised, and after noticing the objections taken to the decree
in arguments of the appellant's counsel, and referring to
" Jac% c. Fetherston " (2 nucleon), and other cases on the
point, said he concurred in the opinions stated in the certifi'
ate of the judges in Ireland,. and thouht the decree of the
Lord Chancellor there was right upon all the points, and
therefore that the decree should be affirmed, and the appeal
dismissed, with costs.—Lord Brougham went fully into the
law of the case, and came to the same conclusion as the Lord
Chancellor; and the decree appealed from was affirmed,
with costs.
THOREETCROTT O. Cnocxarr AND °THIEL—This was
an appeal from a decree of the Vice-Chancellor of England,
made in 1843, and was argued here on the 14th and 22nd of
March, 1847, and then reported in this journal. It may be
remembered that the question on the appeal was as to the
effect of various mortgage and other deeds of a complicated
nature.—The Lord Chancellor now, after noticing the most
material of these deeds, expressed his concurrence in the
views taken of them by the Vice-Chancellor, and was of
opinion that his Honour's decree, dismissing the bill with
costs, was quite correct, and moved that the same be
affirmed, and the appeal dismissed with costs, which was
agreed to.
LADY EDWARD THYNNE V. THE EARL AND COUNTEPE
OF OLINOALL, ET a CONTRA.—BIABILIAOE SETTLE-
IIIENTE—WILL—PORTIONB-BATISPACTION OP THEM.—
These appeals were brought against a decree of the Master
of the Rolla, made in 1836 and a subsequent order, and were
argued here during several data in April, 1847, and then re-
ported in this journal. The ill was filed in 1834 by the
Earl and Countess of °tenni' against Lady Edward Thynne
and her husband, and others, for execution of the trusts of
the will of William Mellish, the father of the two ladies.—
Mr. Mellish by his will, dated Nov. 1833, devised certain
real estates in trust for his two daughters,
htere, and bequeathed
his personal property to the same trustees, first, to pay an
annuity of 2,0001. to his wife for life, and then he directed
that the residue should be equally divided between his two
daughters and their children in manner then in mentioned.
Before the date of this will, viz., in 1830, Elizabeth, the
elder daughter, had married Lord Edward Thynne. Upon
this occasion Mr. Mellish had provided for her a portion of
100,0001., to be settled for the benefit of Lord and Lady
Edward Thynne and the children of the marriage; one-third
of this sum, viz., 33,3331. 68.8 d., vested in 3 per cent. consols.
was transfered to the trustees of the settlement for the
benefit of Lord Edward Thynne for life, with re-
mainder to his wife for life with remainder to the
children. Mr. Mellish executed his bond to the same trus-
tees to secure the transfer to them, upon his death, of the
remaining two-thirds, viz., 66,6661.13 s 4d., and the payment
to them in the meantime of 2,0001. per annum in trust for
Lady Edward Thynne for her life for her separate use, with
remainder to the benefit of the issue of the marriage. In the
year 1833 the Earl of Olengall proposed to marry Margaret,
the other daughti rof Mr. Mellish. After some conferences
between him and the earl, and their legal advisers, the fol-
lowing arrangement was made: Mr. Mellish was to transfer
100,0001. consols into the names of trustees, to pay the divi-
dends to his said daughter for her life to her separate use,
and on her death without children to revert to her father's
estate; but if there should be children then to go to the
lounger children, as the parents might jointly appoint ; and
if no such appointment to go among them share and share
alike; and if only one child then to such child. Lord Olengall
was to exercise the power contained in the settlement upon
covenaating to charge his *stake with a jointure of 1,2001.
per annum in favour of his wife, and with a sum of 20,0001.
in favour of the younger children, subject to a like power of
appointment among them. The arrangement was afterwards
changed, so far as that Lord Olengall consented that the
sum of 100,0001., instead of being transferred in stock to trus-
tees, should be secured by the bond of Mr. Mellish, as in the
case of the two-thirds of the portion of Lady B. Thynne, and
that the limitations of the said sum should extend to
all the children, and not to the younger children only. He
also proposed to settle on the countess, in case she should
survive him, and there should be no issue of the marriage, a
further jointure of 6,0001., in addition to the 1,2001., bat
Mr. Mellish did not require that, and it was realised to
2,0001. a year. In January, 1834, Mr. Mellish desired his
solicitor, Mr. Tooke, I. prepare deeds in conformity with
these arrangements, and they were accordingly prepared,
end the drafts, approved by counsel, were returned on the
21th of January, 1834. On that day Mr. Mellish was seized
with ilium, and he died on the 27th, witnont having exe-
cuted the proposed deeds. In February, 1834, the Earl of
Olengall executed a deed throwing his estates with the sums
already specified. Other deeds rendered necessary by the
death of Mr. Mellish, were likewise executed, and the
marriage took place en the 19th of February, 1834. The
bill filed soon afterwards stated these matters, and charged
that the agreement of Mr. Mellish to settle 100,400/. on his
daughter was a valid agreement in, all respects, and binding
on his estate, and it prayed that the said suns might be de-
clared to be a debt against biz estate, and that the same'
ought to be paid accordingly out of his estate, and be settled
as the court should direct for the benefit of the countess and
children, according to the stipulations agreed upon by
the parties in contemplation of the said marriage.
But, in case the court should be of opinion
that the plaintiffs were not entitled to have the
100,0001. raised and paid, then the bill prayed for a decla-
ration that the provision made by Mr. Mellish in his
will for Lad Edward Timms and her children wasa satis-
faction for the rum of 66,6661. 13e. 4d. comprised in his bond
as before stated. There are several chlldren issue of the
marriage of Lord lied Lady °Unwell; there is no issue of the
marriage of Lord and Lady Edward Thynne. Lady Thynne
LE her answer to the bill, by her next friend, said that the
arrangement between her father and Lord (Hensell was not
a valid agreement, binding upon her father or his estate, and
that although deeds were prepared, they were not sun nor
signed by him. She further submitted that the provision
made for her is her father's will was not to be considered as
a satisfaction of his bond given to ker, but was a benefit
wholly independents:4oe amount of such bond, and she there-
r fore claimed to be entitled to an absolute sum of 66,6661. 13s. 4d.
which, in addition to the 33,3331.65. Bd. paid at the time of
, the marriage, made up the 100,0001. secured by the
s.ttlimaeat ; and she also claimed one half of the whole
due aim father% lemma gelato. The cause came on for
before the Maw of tie Rags, who, by his decree
wale (a 18818, aimed dig se mei of the bill as prayed a
deineallem dot the sum of 100,01101, proposed to be settled
by tie Nelleter in his lifetime on the Countess of Olengall
and her *Mum, ocinstitutod a debt against the estate of the
adder, &odd be dieedesed • and that the appellant and
her hens Of toy the Wild ;hereafter have) • ere not se-
titled 1111 an equal ohm fa the residue of the testator's esters
in edibles to the Um& secured to them by the bond ef
Kr. Mellish • bee that the one moiety of the residue of his
bereatbsd in trust for the appellant end bar
WWI le be mmillseed as a satisfaction, or to lieu of the
p ads be ems by the bead. The Master of the
Rolls upon Om WWI coming again before him in
1842 urn loft( dinettes', made an order by
which he asiered, amongst other things. that
Lady Thymus sad the Countess of Cliengall were entitled
during their resmelhe lives to the interest and divides& of