Page:The English Reports v1 1900.pdf/578

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I BROWN.
JEVERS v. JEVERS [1735]

brother, he would give it to a younger son: and it appeared by a letter from Thomas Vernon to his father, dated the 9th of April 1707, that he knew his father had by his will devised this rectory to the respondent George; and instead of insisting upon any promise of its being given to him, he made it his humble desire to his father, that he would devise the same to him upon his paying thirteen years value for it; and in his letter proposed the form of a codicil for that purpose. Accordingly Sir Thomas, after being greatly importuned by his son Thomas on this subject, did by a codicil give this rectory to him, upon condition of his paying the respondent George fourteen years value for the same; but this condition not being complied with, the rectory remained to the respondent George. Admitting however, that if the testator Thomas Vernon had made a settlement pursuant to the articles, he might afterwards have defeated the limitations by a common recovery; yet as he did not think fit to do so, his covenant remained in force, and the appellant as his devisee and executrix ought to perform the same, especially as ample provision was made for all his daughters, and as the appellant was to have an estate for life in the [272] lands to be purchased, and as she had admitted a sufficiency of assets. But, supposing it to be only a voluntary covenant on the part of the testator Thomas Vernon, to make the purchase of £350 per ann. mentioned in the articles, yet it would affect his assets; and he having charged his real estate with the payment of his debts, and the appellant having admitted assets, it was but the ordinary justice of the Court that the covenant should be satisfied out of assets, since there was indisputably enough to satisfy all other creditors. It was therefore prayed, that the appeal might be dismissed, and the decree affirmed.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed, and the decree therein complained of, affirmed. (Jour. vol. 24. p. 26.)


Case 34.—Henry Jevers,—Appellant; Margaret Jevers, and others,—Respondents [18th April 1735].

[Mew's Dig. vii. 215.]

[A. on his marriage entered into articles, whereby he covenanted to settle his whole estate upon himself for life, with remainder to his first and other sons in tail. No settlement was made pursuant to these articles; but A. when his eldest son attained twenty-one, prevailed on him by threats, promises, etc. and under a total ignorance of the articles, to join in a settlement, whereby the estate was limited to different uses, and a power given to the father of making a jointure. This settlement was set aside as against the eldest son for fraud, and the articles were established. And the father having, on his marriage with a second wife, given a bond conditioned for making her a jointure, this bond was also set aside as against the heir, and the wife was put to seek satisfaction for the penalty of the bond, out of her husband's personal assets.]

Grounds and Rudiments of Law and Equity, p. 19. ca. 17. 2 Eq. Ab. 54. ca. 13. cited in both books by the name of Ivers v. Ivers.

John Jevers, the appellant's father, being seised in fee of several lands, tenements, and hereditaments in the county of Clare in Ireland, by articles, dated the 19th of April 1692, in consideration of a marriage then intended, and shortly after had, between him and Ellen Fitzgerald, and of £1000 marriage portion, did, amongst other things, covenant with Augustine Fitzgerald, esq. the lady's father, to limit and settle all and singular the premises to and upon him the said John Jevers for life; remainder to the first and every other son of the marriage in tail male; with divers remainders over; and without any power of making a jointure on any second wife he might marry.

There was issue of this marriage the appellant, the eldest son, and several other sons and daughters. But the articles were never carried into execution, nor any settlement made pursuant thereto; and the appellant's mother dying during his

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