THIRTEENTH YEAR OF THE REIGN OF VICTORIA. 1850.

THE Judges who usually sat in Banco during this Term, were

A., upon the marriage of B., his daughter, covenanted with her husband, C., his executors, &c., by deed or will to give, leave, and bequeath unto B. one full equal eighth part or share (that being an equal share with his other children), of all the real and personal estate of which he should die seised or possessed. B. died in the lifetime of A. A. having, in his lifetime, made some disposition of property in favour of a son, by will devised and bequeathed his real and personal estate for the benefit of his widow and some of his surviving daughters :-Held, that Chad not any cause of action against the executors of A.

THE following case was sent by Vice-Chancellor WIGRAM for the opinion of this Court :

Previously to, and in contemplation of, a marriage *between [*2 Frederick Jones and Mary Way, spinster, the daughter of William Way, a deed of settlement, bearing date the 8th of April, 1826, was made and duly executed between and by the said Frederick Jones, of the first part, the said Mary Way, of the second part, and the said William Way and William Hearn, of the third part, by which deed of settlement the said Frederick Jones conveyed and assigned certain parts of his real and personal estate to the said William Way and William Hearn, upon certain trusts for the benefit of himself, the said Frederick Jones, and of the said Mary Way, and of the issue, if any, of the said intended marriage: and the same deed of settlement contained a certain covenant and agreement on the part of the said Wil

liam Way, the father of the said Mary Way, in the words following, that is to say, "And this indenture lastly witnesseth, that, in consideration of the said intended marriage, and also in consideration of the settlement hereby made by the said Frederick Jones, he the said William Way, for himself, his heirs, executors, and administrators, doth covenant, promise, grant, and agree with and to the said Frederick Jones, his executors, administrators, and assigns, that he the said William Way shall and will, by deed or writing, or by his last will and testament, give, leave, and bequeath unto the said Mary Way one full equal eighth part or share, or such other part as shall be an equal share with all and each of his children and child, of all estates, moneys, real and personal estate, of which he the said William Way shall die seised or possessed."

The marriage between the said Frederick Jones and the said Mary Way was duly had and solemnized, shortly after the execution of the said deed.

At the date of the said deed, and of the said marriage, the said William Way had eight children only, and never had any more. Two of the said William Way's *said children died in their father's lifetime, without issue, and leaving the said Mary Way, then Mary Jones, one of the six only children then surviving of the said William Way.

*3]

The said Mary Jones died in the month of February, 1843, also without issue, and in the lifetime of her father, the said William Way. After the solemnization of the said marriage, and on the 23d of October, 1831, a paper writing, bearing that date, and purporting to be the last will and testament of the said Mary Jones, wife of the said Frederick Jones, was signed, sealed, and published by the said Mary Jones, and was attested in such manner as, at the date thereof, was required by law for rendering valid devises of freehold estates; and such paper writing was in the words following, that is to say:

"This is the last will and testament of me, Mary Jones, wife of Frederick Jones, of Arreton, in the Isle of Wight, surgeon, whereby I do give, devise, and bequeath unto my said dear husband, all my right, title, and interest to which I am or may become entitled to, in possession, reversion, or expectancy, under or by virtue of the last will and testament, or writing, deed, or instrument, signed and executed, or to be signed and executed, by my father, William Way, of Newport and Wootton, in the said island, grocer, in my favour, or for my benefit,to hold to him, my said husband, his heirs, executors, administrators, and assigns, absolutely and for ever; and I do appoint my said husband sole executor of this my will."

On the 5th of December, 1845, letters of administration, with the said paper writing annexed, of the goods, chattels, and credits which were of the said Mary Jones, were granted, by and out of the preroga

[*4

tive court of Canterbury, to the said Frederick Jones, the sole executor named in the said paper writing, and, as the lawful *husband of the said Mary Jones, the sole person entitled to her personal estate and effects over which she had no disposing power, and concerning which she was dead intestate.

The said William Way, the father of the said Mary Jones, never in his lifetime did any act by way of performance of the said covenant and agreement, and died in the month of July, 1846, leaving issue five children only him surviving; and, by his will, duly executed, and dated the 4th of April, 1843, the said William Way, after bequeathing certain specific parts of his personal estate to his widow, devised and bequeathed all his real estate, and the residue of his personal estate, to Thomas How, and Alfred Mew, upon trust, after payment of his debts, for the benefit of his widow and some of his said five surviving children. And the said testator appointed the said Thomas How and Alfred Mew executors of his said will: but the said testator, William Way, did not in his said will mention the said Mary Jones and Frederick Jones, or either of them, or the said covenant and agreement.

The said Thomas How and Alfred Mew duly proved the said will in the prerogative court of the Archbishop of Canterbury, on the 11th of August, 1846.

The said William Way died possessed of some personal estate, and also seised of a real estate of copyhold tenure, held of (a) a manor in which, by the custom thereof, the father is the customary heir of his daughter who has died without issue.

The questions for the court are,

First, Whether Frederick Jones has, under the above-mentioned cirumstances, any good cause of action against the executors of William Way; and, if so,—

Secondly, Whether, if William Way had died possessed of no personal estate, and seised only of the *copyhold estate above mentioned, Frederick Jones could have recovered any substantial damages in such action.

The case was argued in the last Michaelmas vacation.

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J. Brown, for the plaintiff. (6)-Covenants such as this are not unfre

(a) Meaning "being within," &c.

(b) The points marked for argument on the part of the plaintiff, were,—

"That the covenant of William Way, made on his daughter's marriage, to give her a share of his property, was absolute, and that the manner of the gift only was optional:

"That the covenantor might have effected the gift by deed, in his daughter's lifetime, and was bound to do so, if he did not effect it by will:

"That, if the covenant could be performed in part, though not in all, the covenantor was bound to do it:

"That, if even performance of the covenant became impossible, the covenantor's executors must answer for it in damages:

"That the covenant might have been performed by a bequest to the administrator of the daughter.

"With regard to the damages in respect of the copyhold estate, the plaintiff contends that full

quently entered into by trades-people, upon the marriage of daughters: and, in equity, questions sometimes arise whether a disposal of his property by the father in his lifetime is a fraud upon the covenant. In Jarman on Conveyancing, (a) it is said that covenants of this nature "attach only on that portion of property which the covenantor happens to die possessed of, without interfering with his power of squandering or dissipating it in his lifetime, if he chooses. *An unequal dis*6] tribution of property among the children of the covenantor, by his will, to the disadvantage of the covenantee, is the act against which the covenant is immediately directed. The principal point arising on such covenants has been, whether they admit of gifts to a child taking effect in the parent's lifetime. In the case of Jones v. Martin, 3 Anst. 882, more fully, 5 Ves. 266, n., Lord LOUGHBOROUGH thought that a gift, out and out, might be allowed; but he decided (or, rather, induced the House of Lords to decide), that a transfer of stock to a child, with an agreement, though oral, that the father should take the dividends during his life, was void, as being designed to elude the covenant. And, even where the covenant was, in terms, confined to such real and personal estate as the covenantor should die seised and possessed of, it was held by Sir W GRANT, M. R. (following Lord RossLYN's distinction in Jones v. Martin), that the covenantor could not defeat it by a gift posthumous in enjoyment, though not testamentary, as, by a transfer of stock to trustees, with a declaration of trust for the covenantor for life, and, on his decease, for one of his children: Fortescue v. Hennah, 19 Ves. 67." Lord ROSSLYN, in Jones v. Martin, says: (b) "This covenant was stated by the counsel for the respondent to be vague and idle, unmeaning and insecure. It is not, however, an unusual covenant in settlements. Many marriages are entered into on such covenants: and they are not inexpedient. They are entitled to favourable consideration. Such a covenant holds out a prospect that the party who marries into a family, will continue a member of that family; and it provides, as it were, a pledge that he shall be considered, and may consider himself, part of such family, till the death of the person who enters into the covenant. But, then, But, then, it does not confine or restrict the father's *7] powers. He may alter the nature of his property from personal to real; or he may give scope to projects; or indulge in a free and unlimited expense. But he must not be allowed to entertain more par

damages may be recovered in respect of it; that, if a share in it had been given to the daughter in her lifetime, she could have conveyed it to her husband, and would have done so, as appears by her will; that the father might have given the copyhold to one or more of his other children, and personal property, or money, of equal value, to the plaintiff's wife, which would then have come to the plaintiff; that a bequest of a share in the copyhold to the wife's administrator would nave satisfied the covenant, and would have carried the whole interest to the plaintiff, and he was entitled to damages commensurate therewith; and that the will of the wife would, in equity, have made the father a trustee for the plaintiff, even if the share of the copyhold given to her had descended, at law, to the father."

(a) Vol. IX. p. 113.

(b) 5 Ves. 268, n.