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of the £200 per ann. should be also paid him, or to whom he should appoint; and that the respondent should have settled on him the said annuity of £200 per ann. to be paid him quarterly for his life, out of the separate trust estates of Dame Ann, subjected thereto by the articles; and that he should have his costs at law and in equity taxed and paid out of the said trust estate. And it was referred to the Deputy Remembrancer to tax the same, and take an account of what was due to the respondent for principal and interest of the £735 and the arrears of the £200 per ann. and it was also decreed, that all the trust estates of the said Dame Ann should stand as a security for the same: and the Deputy was to take an account of the said estates and effects, and of what securities the same did consist at the death of Dame Ann, and certify to the Court, what parts of the trust estates were subjected and made liable to the performance of the articles.

From both these decrees the present appeal was brought; and on behalf of the appellants it was insisted (T. Lutwyche, N. Fazakerly), that the Court should not have established, or given any directions towards the execution of the articles, but the bill ought to have been dismissed; for that it fully appeared by the proofs in the cause, that Lady More was seised by force, and continued under that custody and power, till the time of executing the articles; and that there was no consideration for the same, but only to be delivered from that confinement; she having in fact lived separate from her husband for several years before. That these articles were not performed by the respondent, who was to give security that she should live separate from him without molestation, yet no such security was ever given or offered, neither did the trustees consent, nor was any order of Court obtained, both which circumstances were part of the terms of the articles. That no trial at law ought to have been directed, but the Court should have determined the question upon the proofs, without a trial; the facts on which the appellants relief was grounded, being only proper for the consideration of a Court of Equity. That Dame Ann had by her will made a full and complete appointment of all her trust estates, pursuant to the power given her by her father, to her grandchildren and creditors, without taking any notice of the articles; and if those articles were now to be carried into execution, the several annuitants, creditors, and legatees, would be in a great measure prejudiced, though they were no parties to the suit.

To this it was answered on the other side (C. Talbot, W. Banbury), that married women who had separate estates, were considered in equity as single women with regard to such estates, and had an absolute power of [240] disposing of them in favour of their husbands, or any other person, notwithstanding their coverture; and therefore in the present case, the respondent's late wife having by the articles made an appointment in his favour, her coverture, or his relation to her at the time of making that appointment, were no objection to it. That the fraud and imposition complained of, being founded upon a supposition that the articles were obtained from her by duress, and were not freely and voluntarily executed, that fact was properly triable at law; and it having been tried, and a verdict found for the respondent upon full evidence, there was no ground to alledge that the articles were obtained by any fraud or imposition. That the will of Dame Ann could not controul the articles, under which the respondent, being a creditor, brought his bill of revivor properly against her executor, and the trustees of her separate estate; and it was neither necessary, nor would it have been proper for him to have made her legatees parties to this bill. For if, in consequence of the decree, there should not be assets left to pay the legatees their full legacies, the appellants could not be liable to pay them more than the remaining assets should amount to. And lastly, that Mr. Edmonds's supposed intention to exclude the respondent, could operate no further than to exclude him from taking any thing by virtue of his will or settlement only; but there was nothing in either of them, which disabled Dame Ann from making any appointment in the respondent's favour, that she thought fit to make, and which she had accordingly done by the articles. It was therefore hoped that the decrees would be affirmed, and the appeal dismissed with costs.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed, and the decrees therein complained of, affirmed: and it was further ordered, that the appellants should pay to the respondent £40 for his costs in respect of the said appeal. (Jour. vol. 23. p. 225.)