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on his wife in bar of dower, will not bar her of her customary part : otherwise it is, if said to be in bar of her customary part. i P. Will. 530. (3)
M. 1727. Lewin and Lewin. If a woman before marriage with a freeman of London, accepts of a settlement upon her, to take effect after her husband's death in case she survives him, of part of his personal estate, (without taking notice of the custom of London,) she is thereby barred of her customary part of his personal estate. 3 P. Will. 16.
T. 1734. Pusey and Desboverie. Lord chancellor Talbot, taking notice of the contrary determinations made by the court in this point, said, it had been of late settled, that where a wife was compounded withal, it should be taken, as if there was no wife; and
consequently that the husband should have one moiety, and the [ 446 ) children the other. [3 P. W. 315. 1 id. 644.] The like was held
by the lord Hardwicke, in the case of Morris and Burrou, in the
year 1737. [Metcalf v. Ives, 1 Atk. 63. S. P. and see Blunden v. Barker. 1 P. Wms. 634. Covenants in the marriage settlement of a freeman of London, that the husband might dispose of the wife's share by will, and also that her executors should release and convey all her interest, &c. to the husband, were held not to vary the general rule that the children should not be entitled to the benefit of a composition with the widow. (4) The wife of a freeman of London shall not take by her husband's will, and also by the custom, unless it be so declared in the will(5); she must disclaim all benefit under the will, if she will have the customary share in contradiction to it (6); but she need not elect to take either by the will or custom till she has seen into the value of her husband's effects; though she may be concluded by her own acts, and by acquiescence, as where she had lived a year or more
after her husband, and accepted an interest under his will. (7)] What shall
11. It is said, generally, by the author of the Law of Testaments, that
any provision made by the father in his lifetime for his children, is advancement within the custom; but a settlement of a
(3) Pre. Ch. 505. S.C. And so as to her distributive share under the statute, she shall not be barred unless express words in the mar. riage settlement exclude her. Whithell v. Phelps, Pre. Ch. 327. But if there are sufficient words in the settlement, the wife will be barred ; it then being as if there was no wife, the children taking one half by the custom and the other half by the statute. Blunden v. Barker, 1P. Wms.644. Cleaver v. Spurling, 2 id. 527.
(4) Knipe v. Thornton, H. 1762, 2 Eden's Rep. 118. The law of the city has fluctuated on this point till of late years. 16.
(5) Kitson v. Kitson, 1712, Pre. Ch. 351.
(7) Harvey v. Ashley, 3 Atk. 616. See Tomkins v. Ladbroke, 2 Ves. 593.
eal estate on a child is no advancement, nor to be brought into a sufficient hotchpot. Law of Test. 194. 204. [1 Ch. C. 160. 235. i Vern. 2. advance
ment. (See 2 P. Wms. 274. Nor though made expressly for the purpose ante, 388, shall it bar him of the orphanage part (Rich v. Rich, 2 Ch. C. 160. 389.] See Civil v. Rich, 1 Vern. 216. 2 Jon. 204. Annand v. Honeywood, 1 Vern. 345.), unless accepted as advancement in bar of the custom (Cox v. Belitha, 2 P.Wms. 272): a lease for years is an advancement. S. C.]
But Mr. Vernon questioneth, whether every provision made by the father for his child be an advancement, or whether only such a provision as is made on the marriage of a child. And he answers, that it seemeth to be only such a provision as is made on marriage, or in pursuance of a marriage agreement. i Vern. 89. (8)
And in the case of Jenks and Holford, M. 34 C. 2. The plaintiff exhibited his bill, setting forth that his wife's father was a citizen of London, and that he had not advanced her in his lifetime, and demanded her customary part, and prayed an account. It was insisted on the defendant's part, that the plaintiff's wife was advanced by her father in his lifetime, he having given her 4001. But the lord chancellor was of opinion, that it could not be any advancement, unless it had been given her as a marriage portion, or in pursuance of a marriage agreement; and the 400l. were not given till a long time after her marriage, and without any agreement that the same should be for her marriage portion, and was a free gift, great part of the sums that made up the 4001. being given at christenings and lyings in. Next, it was insisted for the defendant, that these several sums, howsoever given, ought (if the plaintiff will
come in for his wife's customary part) to be cast into hotchpot: But the plaintiff's counsel denied it; and took a difference betwixt a free gift subsequent to the marriage, and where the same is given in marriage; and compared it to the case of an heiress, where she has lands given her in frank marriage, those must be cast into hotchpot; but otherwise it is of lands conveved or given to her by her father or other ancestor after the marriage. But not allowed by the lord chancellor. And the plaintiff not consenting to cast into hotchpot the 4001. given unto his wife as aforesaid, the bill was dismissed.
1 Vern. 61. (9)
(8) Thus, though Judd's law (an act of common council temp. H. 6.) did not make any provision a bar unless it was an advancement on marriage, yet an advance made after marriage by parents on both sides, to buy a commission, was held an advancement, as appearing to be intended as a marriage portion. Hearne v. Barber, 3 Atk. 213. See Fawkner v. Watts, i Atk. 406. n. 1. Hume v. Edwards, 3 Atk.
H. 1683. Civil and Rich. The custom of the city of London touching orphans was certified to be, that where an heir or coheir had a real estate settled on him or her by the father, the same was out of the custom of the city of London; and though the father should afterwards declare the same to be a full advancement for such child, yet that was no bar to his orphanage part, neither was it to be brought into hotchpot; but was clearly out of the custom. And it was said, that by the custom of the city of London, where a child is married with the father's consent, and there is a portion given in marriage ; such child is debarred from claiming any benefit of the orphanage part; unless the father shall by writing under his hand and seal, not only declare that such child was not fully advanced, but likewise mention in certain, how much the portion given in marriage did amount unto; that so it may appear what sum is to be brought into hotchpot. i Vern. 216.
M. 1685. Annand and Honeywood. The question was, whether money given by the father to be laid out in land to be settled on the son and the intended wife for their lives, with remainders in tail, should be reckoned to be an advancement by part of the personal estate of the father, so as that the son ought to bring the same into hotchpot, to entitle him to a share of the personal estate. Lord chancellor : There is no colour to reckon this any part of the personal estate. 1 Vern. 345. (9 a)
T. 1699. Chace and Box. If any freeman's child be married in the lifetime of his or her father, by his consent, and not fully advanced to his full part or portion of his father's personal or customary estate, as he shall be worth at the time of his decease; such freeman's child so married as aforesaid, shall be excluded and debarred from having any further part or portion of his or said father's personal or customary estate to be had at the time of his decease; except such father, by some writing by him written and signed with his name or mark, shall declare and express the value of such advancement: and then every such child, after the decease of his father, producing such writing, and bringing such portion so had of his father into hotchpot, shall have as much as will make
the same a full child's part or portion of the customary estate which his father had at the time of his decease; notwithstanding such father shall by any writing under his hand and seal declare such child was by him fully advanced. L. Raym. 484. i Eq. Ab. 454.
(9) But it seems the custom on this head is not so restricted, but extends to any other establishment of the child in life. L. of Test. 204. 1 Atk. 403. See also 1P. Wms. 542.
(9 a) Where a grant of a copyhold was made to a son, but the father, at the same time, surrendered it to the use of his will: Held, that it was clear he meant it to remain at his own disposal, and therefore it was not to be considered an advancement to the son, Prankerd v. Prankerd, 1 Sim. & St. R. 1.
Note, it is said to be sufficient if he declare the same by any writing under his hand, or by any thing written by him, although [ 448 ] it be in an almanack, or elsewhere. Green's Privil. of L. 53.
H. 1708. Dean and Lord Delaware. The father's declaring, that the child was fully advanced or not advanced, was of no avail, unless it appeared what the advancement was in certainty ; to the intent it might be known, whether such advancement did amount unto as much as would have belonged to the child by the custom. 2 Vern. 630.
T. 1729. Cleaver and Spurling. If a freeman hath advanced his child on marriage, and the certainty of that advancement doth not appear under the freeman's hand; this is to be taken as a full advancement, till the contrary is shewn: but the freeman's declaration alone, that he hath fully advanced his child, is not of itself sufficient; for at that rate it would be in the power of
every freeman, by making such declaration, to bar his child of the orphanage part. 7 P. Will. 527. (v)
(v) (Elliot v. Collier, 3 Atk. 526. 1 Wils. C.B. 168. 1 Ves. 15. S. P.] Farnham v. Phillips, 2 Atk. 214. & 523. A freeman of London made his will, and divided his estate according to the custom, and the dead man's part he devised amongst his wife and children. Afterwards, in his lifetime, he married one of his daughters, and gave her 10001., which in the marriage articles was called her portion or provision. This the court declared to be a satisfaction of her orphanage share, but not to exclude her from a share of the residue, which at the time of making the will was uncertain.
[A freeman of London by his will charged 15001. on his real estate for his daughter, and also gave her 1500l.out of his personal estate. The daughter would take the 15001. out of the real estate, which is out of the custom, and also claim her orphanage part; but the court in regard the testator had disposed of all his real and personal estate among his children, and intended an equal division, would not suffer the child to disappoint her father's will, but compelled her to abide entirely by the will or by the custom. Cowper v. Scott (1731) 3 P. Wms. 122.
A child of a freeman must abide by the will in toto, or by the custom in toto. Pugh v. Smith, 2 Atk. 13. See Morris v. Burroughs, 1 Atk. 404. 2 Atk. 629. But this is otherwise if the father expressly mentions that the legacy shall come out of his testamentary share. Car v. Car. 2 Atk. 277. 1 P.W.722. S. P. contra, ib. 533. A child is not obliged to elect between a legacy and the orphanage part till after the account is taken. Hender v. Rose, cited 3 P. Wms. 134. n.; and Frederick v. Frederick, 1 P. Wms. 722.
In cases on the custom of London, the effect of advancement is only to remove one child out of the way, and increase the shares of others, but not to increase the part of which the father would have power to dispose. Folks v. Western, E. 1804, 9Ves. 460. Conveyances made to evade the custom are fraudulent, and always set aside in equity. Edmundson v. Cox, (1716) 2 Eq. Ab. 275. pl. 6. See Hall
Child of 12. [The interest which a child has in such orphanage part is age may release the
a mere contingency, and no present right; and therefore a release customary
of it is not valid in point of law; but if founded on a valuable part. (See consideration, shall operate as an agreement, and be binding in 462*. ]
equity. (1) Therefore] the child of a freeman of London, when of age, may, in consideration of a present fortune, bar herself of her customary part. As in the case of Lockyer and Savage, M. 6 G. 2. The father, on his daughter's marriage, agrees to give her 30001.; which she, being of age, covenants to receive in full of her customary share as a freeman's daughter: and though it was objected, that such a future right cannot be released, and that parents might make an ill use of the power they have over their children, in forcing them to give such discharges; yet this was held a good bar of the custom, there being no fraud in the transaction. 2 Abr. Cas. Eq. 272. Str. 947.
But such release, without a valuable consideration, is not good; for in such case, at the time of the release, the children having neither jus in re, nor jus ad rem, the whole being in the father during his life, there is nothing for any release to operate upon. 1 Atk. 402. [And a release of the orphanage part to which a child is forced by a father for the sake of his maintenance merely, and not for advancement in marriage or trade, is void. Heron v. Heron, 2 Atk. 160. Barn. Ch. Rep. 450. See Ambrose v.
Ambrose, 1 P.Wms. 321. [ 449) 13. In the case of Kemp and Kelsey, M. 1720. The plaintiff's Whether
wife was a freeman's daughter; and after her marriage, her father the husband can release. gave her 1001., and the plaintiff executed a release for the 1001.
in full of all his wife's customary part or share which was or might be due to her by the custom of London. The father died. A bill was brought for a discovery of the personal estate, and that upon the plaintiff's bringing the 1001. into hotchpot, they might be let into a customary part of the father's estate. The defendant pleaded the release in bar. And by the lord chancellor Macclesfield: The husband had no power to release a future interest of his wife's. She might survive him; and would then be entitled to it in her own right. Besides, this release is suggested to be fraudulently obtained. And therefore his lordship ordered the plea to stand for an answer, with liberty to except, so as to have an account of the freeman's personal estate, and the benefit of the release to be saved to the hearing, when the question would come more properly, whether the release by the custom was good or not. 2 Abr. Eq. Cas. 267.
v. Hall, 2 Vern. 277. 2 Ves. 591., &c. &c. If a freeman of London has before his death advanced a child, and it is known what such advancement is, it shall be brought into hotchpot, and not otherwise. Bright v. Smith, Freeman's Ch. Cas. 279.]
(1) 1 P.Wms. 636.639. 2 P. Wms. 273.