Page:The English Reports v1 1900.pdf/550

Mary Erisey, of the estate which remained unsold, in bar of the relief sought by the bill; and by their answer, denied that they ever pretended that the parties came to any new agreement, to vary from the terms of the marriage articles.

Upon arguing this plea on the 21st of May 1726, before the Lord Chief Baron Gilbert, and the rest of the Barons, they all delivered their opinions seriatim, that according to the marriage articles, the estate in question ought to be settled in strict settlement; and that the two settlements having varied from the articles, the same were not an execution thereof; and therefore ordered, that the plea should stand for an answer, with liberty to except.

The appellants having no occasion for a further answer, replied; and witnesses being examined on both sides, the cause was heard on the 6th, 9th, and 12th of December 1726; when the Court was pleased to dismiss the appellants bill without costs.

From this decree of dismission the present appeal was brought; and on behalf of the appellants it was argued (P. Yorke, C. Talbot), that by the marriage articles it was expressly stipulated, that the estate should be limited to Richard Erisey for his life, without impeachment of waste, and that he should have power to make leases; which was a plain evidence of the intent of the parties, that the estate should be settled in strict settlement; and that Richard should be only tenant for life, and have no power to bar either his sons or daughters by fine or recovery. That the settlements took notice of the articles, and were expressly mentioned to be made in pursuance and performance thereof; which words were an evidence that the parties did not intend to vary or depart from the words of the articles, nor had come to any new agreement for that purpose. And it was apprehended, that the limitations in the settlements under which Richard Erisey, by construction of law became tenant in tail, proceeded from the mistake or negligence of the counsel who drew the same, and not from any agreement or design of the parties to vary the terms of the articles; and of this mistake or neglect, the omission of the common limitation to trustees to preserve contingent estates, was a manifest proof. That the respondent was a volunteer under the will of Richard Erisey, who took advantage of the mistakes in the settlements, and suffered a common recovery to bar his issue, although Mary was then living; which was apprehended to be a breach of trust in him. It is objected, that [231] though Courts of Equity have, in like cases, decreed an execution of marriage articles in strict settlement in favour of sons, yet they have not extended it in favour of daughters; who are most commonly provided for by a term of years to raise portions for them, in case of failure of issue male: but to this it may be answered, that the reason seems to be as strong, that the expression of heirs female of the body, contradistinguished from sons, in marriage articles, should have the same construction in favour of daughters, as the expression of heirs male in favour of sons. That in the present case, both were under the contemplation of the parties, because there was no other provision for daughters, besides the limitation intended for them by the articles; and according to the common course, where provision is made for daughters by a term of years, it is always so limited as to be out of the father's power to bar it. It is further objected, that the settlements being made before the marriage, it must be presumed that the parties came to a new agreement to vary the terms of the articles; and that the settlements were made to the satisfaction of Sir Peter Killegrew, he being a witness to the one, and a party to the other. To this it is answered, that the settlements are not only expressly mentioned to be in pursuance and performance of the articles, but the appellants having charged by their bill, that the parties came to no new agreement after the date of the articles to vary the terms of them; the respondent Erisey, by her answer admitted, that she never set up a pretence of any such new agreement. And as to Sir Peter Killegrew's being a witness to one settlement, and a party to the other, he, as most gentlemen in like cases do, relied upon his counsel in framing the settlement, so as to answer the intent of the articles, he himself being a stranger to the form and method of so doing. As to the objection, that after such a length of time, and an acquiescence under the settlements, the appellants ought not now to resort to the marriage articles; it was said, that the appellants were infants, that their title did not accrue until the death of Richard Erisey their grandfather, in January 1722, and