affection to him, and alfo that Elizabeth dying without appointing the two hundred pounds under the deed of the 30th of April, he ought to have it paid to him. The defendant Miller claims as affignee of Pindar's mortgage term, which after feveral mefne affignments became vefted in him the 26th of March, 1733, at which time he advanced a further fum to Searles and his wife, and that there is now due to him for principal 13107. besides intereft, and says that he never had any notice, till after the death of Elizabeth Searles, of the plaintiff's claim, nor of the indenture of the 30th of April, 1709. Lord Chancellor: The question is, Whether the articles of the 30th of April, 1709, are for a valuable confideration and binding, or ought to be confidered as voluntary and fraudulent, with refpect to fubfequent creditors or purchasers ? If I was to lay it down as a rule that fuch articles as these are not binding, it would become impoffible for a widow on her fecond marriage to make any certain provifion for the iffue of a former, and the second husband might then contrive to defeat the provifion made for those children. I am of opinion thefe articles ought not to be confidered as a voluntary agreement, and that the plaintiffs are intitled to relief in this court. This is the case of a widow, who has two children by a former husband, and no provifion made for them, and those two children have each of them a child, and the mother being in poffeffion in her own right of freehold estate, leafehold, and copyhold, the fecond husband, if there had been a child born alive, would have been intitled to be tenant by the curtesy of the freehold, and alfo to the leafehold and copyhold immediately upon the marriage. To prevent this, by the articles before the second marriage, 2001. is allowed to be raised by the wife out of the eftate, and in cafe there should be no children of the fecond marriage, then one moiety thereof was to go to the plaintiff Newstead his heirs and affigns, and the other to Sufanna Stokes for life, remainder to Elizabeth Atkinson, her heirs and affigns, the former her grandfon by the first marriage, and the latter her daughter and grandaughter; but if there should be any child or children of the second marriage, then they were to have an equal share with the plaintiffs. Upon the mortgage to Pindar, by the contrivance of fome country attorney, Elizabeth Searles and her husband levied a fine, and in the deed to lead the uses there is a compleat recital of the will, under which the wife claimed, and of her marriage fettlement in fo ample a manner, that the will and fettlement must neceffarily have been laid before him, and he must consequently have had full notice of it as agent for the mortgagee. The children of the first marriage ftand in the very fame plight and condition as the iffue would have done, if there had been any of the second marriage, and even are provided for before them, Suppofing Suppofing there had been ifflue of the fecond marriage, and they had brought their bill to carry thefe articles into execution, upon a decree in their favour, would not the children by the first marriage have been equally intitled to a benefit from. the decree? Taking the cafe with all its circumftances, I think the fettlement no voluntary agreement, but a binding one; the statute of the 13 and 27 Eliz. that make conveyances fraudulent, are voluntary conveyances, made against purchasers upon a valuable confideration, or bonâ fide creditors: But it would be difficult to fhew that fuch a limitation, as in the prefent cafe, has been held fraudulent, and void against subsequent purchafers or creditors. * The prefent is a ftronger cafe, for here are reciprocal confiderations both on the part of the husband and wife, by the provifion under the articles for the children of the fecond marriage. The mortgagees had notice that the lands were liable to thefe articles, and therefore the plaintiffs are intitled to have the benefit of them against the defendants who are affected by notice; and his Lordship decreed an account to be taken of what is due for the principal fum of 2001. and intereft, from the death of Elizabeth the late wife of defendant Searles, and to tax Miller his costs fo far as relates to the mortgage of 2001. and upon being paid what fhall be reported due, ordered the defendants Miller and Searles to convey the freehold, and to affign the leafehold, and furrender the copyhold free of all incumbrances done by them to the plaintiff Newflead, Sufannah the wife of Stokes, and Elizabeth the wife of Atkinson, according to the several estates and interefts therein provided and limited to them by the faid marriage articles. Hardr. 395. Ch. Rep. 275. "Jenkins v. Keymis, 1 Lev. 150. & 237. there Sir Nicholas Keymis, being tenant "for lite, remainder to his fon Charles in tail, in 1641, in confideration of a marriage to "be had between his fon and Blanch Manfell, and 2500 l. portion, levied a fine to the "ufe of Sir Nicholas Keymis for life, remainder to Charles and Blanch for their lives, re"mainder to the heirs of the body of Charles of Blanch begotten, remainder to the heirs "of the body of Charles, with power for Sir Nicholas Keymis to charge the premiffes, "with 2000l. Sir Nicholas and Charles in 1642, joined in a lease and releafe to David "Jenkins and his heirs for 20007. on condition of payment of 2000l. with interest fomé "years after, to be void, Blanch afterwards dies without iffue, Charles Keymis marries another wife, by whom he had iffue the defendant, and dies, the mortgagee dies, and "his heir brought an ejectment, and adjudged the lease and release was no good execu"tion of the power at common law. He then brought his bill in equity on these "grounds; ft, that the confideration of the marriage of Blanch, and the 2500% paid "with her, did not extend to the defendant, being an iffue by the second venter, and fo "the eftate in remainder whereby he claimed was voluntary; (two other grounds not "material to this cafe) but on the first Lord Keeper Bridgman declared that the confi❝deration of 2500 7. paid on the first marriage, should extend to the iffue by the fecond « venter." (B) How (B) How far a feme covert thall be bound by the acts in which the has joined with her husband. June the 18th, 1737. Metcalf v. Ives. Vide title award and arbitrament, under the divifion, For what Caufes fet afide. (C) Concerning the wife's pin-money and paraphernalia. See 2 Tr. Atk. M March the 25th, 1738. Ridout v. Lewis. 77, 78, 79, 104, 105, 217. pl. 173. 3 Tr. Atk. 358. pl. 369, 370, 393,394, 395, 438. at laft. If the wife ac her husband re RS. Lewis had three hundred pounds per annum fettled on Cafe 145. her for pin-money; for several years before Mr Lewis's A. had 300 l. per death he paid her only two hundred pounds per annum, and there annum pin-money, the husband was evidence read, that often, on Mrs. Lewis's complaining of for feveral years being paid fhort, Mr. Lewis told her fhe would have it at laft. before his death The queftion was, Whether she should be let in to have the ar- paid her 2001. only, but promifrears of her pin-money, made a charge on the affets of Mr. Lewis. ed her the should Lord Chancellor: I allow that it is a general rule, when a wife have the whole accepts a payment fhort of what fhe is intitled to, or lets the husband receive what he has a right to receive to her separate cepts lefs, or lets use, it implies a confent in the wife to fubmit to fuch a method, ceive what he has where the husband and wife have cohabited together for any a right to receive time after; but here is no pretence that the pin-money was de- to her separate parted from by the wife, for there is evidence of several pay- confent in her to ufe, it implies a ments eo nomine; and though a wife may come to an agreement fubmit to fuch a with her husband in relation to any thing fhe is intitled to fe- method. But where the pinparately, yet this does not amount to a new agreement, for here money is paid to was a promise the should have it at last, which was an under- her eo nomine, taking to pay the arrears; fhe is therefore intitled to have the her agreement arrears of her pin-money raised by the truftees out of the eftate, relating to her fe which was by fettlement charged with it. with the husband perate eftate a new agreement, His Lordship therefore decreed, that an account fhould be mounts not to a taken of the arrears of the three hundred pounds a year due to and his promifthe defendant, and what shall be found owing on the balance ing the fhould of that account was to be confidered as a charge on the term of an undertaking 500 years created by the marriage fettlement, for fecuring the to pay the arrears. payment of the three hundred pounds a year. have it at laft is (D) How Cafe 146. Mary Lucas in necklace, rings, (D) How far gifts between husband and wife will be fupe ported. July the 12th, 1738. Sarah Lucas, only child of John Lucas, by Mary his first wife, Ifabella Lucas, widow of the faid John Lucas, and MA Plaintiff. Defendants. ARY Lucas, in her laft illness, requested of John Lucas her husband, that her wearing apparel, gold watch, pearl her laft illness re- necklace, rings, ornaments, and feveral pieces of plate, coins, quefted of her husband that her and other things in her poffeffion, and ufed by her, might be giwearing apparel, ven to the plaintiff, and put into the hands of Mrs. Dunfter (a gold watch, pearl friend) for the plaintiff's ufe; which John Lucas promifed, and c. in her poffef- after her death he gave the faid things to the plaintiff, and made fion, and ufed by an inventory and valuation of the fame, to the amount of 1871. her, might be gi- 8s. 6d. and locked them in a ftrong cheft, and after making three ven to her daughter, and put into copies of the inventory, put one into the cheft, and gave the key a friend's hands with another copy to Mrs. Dunfler, and the third to James for her daughter's Lucas his brother, to the intent it might be known what was husband promif- given: In the prefence of feveral perfons he fent the chest, ed, and, after his with the things therein, to Mrs. Dunfler, for the plaintiff's use, and the accepted the fame on the plaintiff's behalf. ufe, which the wife's death, gave the faid things to his daughter, and made an inven John Lucas, after his first wife's death, by articles of the 26th of June 1734, between him of the first part, and Holmes and detory, and locked fendant Ifabella of the fecond part, reciting an intended marriage them in a ftrong between him and Isabella, and that Holmes had agreed to pay him cheft, and gave 2000l. and that he had a daughter (the plaintiff) by a former wife; the key to his wife's friend, the faid Lucas agrees that if he fhould die in the life-time of Isaand fent the bella, and there fhould be any child between them, or that the things therein to plaintiff fhould be then living, that then Isabella fhould enjoy one third of his personal estate, after payment of his debts and funeral expences, and her widow's chamber, according to the antient custom of London; and that the children of fuch marriage, together with the plaintiff, if living, fhould enjoy one third of his perfonal eftate for their respective ufe, and that the provifion made for Ifabella was in full of her dower and thirds. her for his daughter's ufe. Tho' the husband af terwards took fome of the things into his poffeffion again, that is not fuffi. cient to invali date the gift, which was per fect by the for mer act. John Lucas in 1736 died, leaving Isabella his wife, and one only child by her, Ifabella the infant, and alfo his daughter the plaintiff, and by his will of the 10th of June, 1736, directed that the furplus of his eftate and effects, after his marriage contract was duly provided for, and all his perfonal estate, should be divided between his wife and daughters, the plaintiff, and Isabella the infant. The defendant Isabella the widow, infifts on 1000l. South-fea annuities, which the teftator in his life-time transferred to her, and as she says intended thereby to give them to her, and by word of of mouth declared that fhe fhould hold and enjoy them to her own use, and before the transfer promised often to transfer them to her own use, and gave inftructions to an attorney to draw a deed to declare them to her own ufe, who accordingly vested it in trustees, in truft that they fhould transfer the fame to de-' fendant for her own use, but that teftator (on information that it would be better) transferred them to the defendant, and affured her that fuch transfer would effectually secure them to her and which he did as a further provifion. And to make it equal to her fortune. And as to the watch, pearl necklace, and other things claimed by the plaintiff, infists that the teftator voluntarily, and of his own accord, fent for the cheft, and disposed and altered the things therein, as he thought fit, and that he made her a prefent of the fnuff-box, and a pearl necklace out of the cheft. The bill prayed a delivery of the cheft, and the things therein contained, and a diftribution of the estate according to the marriage articles, and the will of the teftator John Lucas. Lord Chancellor: As to the first part of the bill, I am of opinion that the delivery by John Lucas of the things in a chest to Mrs. Dunfter for the use of his daughter, who was the child left by the first wife, according, as he said, to the promise made to his wife in her life-time, is a fufficient delivery, to veft the property in the daughter, and though he did afterwards take fome of the things into his poffeffion again, as the watch and necklace, that was not fufficient to invalidate the gift, which was made perfect by the former act. pass. As to the transfer by John Lucas of 1000l. South-fea annui- Gifts between a ties to his wife in her own name, I am of opinion this is not husband and wife will be supported a good transfer, fo as to affect the marriage articles, by making in this court, any alteration in the grofs eftate of the teftator, the whole of though the law which was liable by the marriage articles to be divided into fuch does not allow proportions, which he could not voluntarily alter; and there- the property to fore this is as much a fraud on the articles, as it would be on the custom of the city of London, yet it is good as against the teftator himself, and to be answered out of his teftamentary share, if fufficient; and in this court, gifts between husband and wife have often been fupported, though the law does not allow the property to pafs: It was fo determined in the cafe of Mrs. Hungerford and in lady Cowper's cafe, before Sir Joseph Jekyll, where gifts from lord Cowper in his life-time were fupported, and reckoned by this court, as part of the personal eftate of lady Cowper. "His Lordfhip declared that the jewels and other things given by the teftator to the plaintiff, and delivered in a cheft to Mrs. Dunfter, for her benefit, are not to be confidered as "any part of the teftator's perfonal eftate, and that what "fhould appear to be the clear personal estate, after payment of "debts, should be divided into three parts; one third to be "retained by defendant Isabella in her own right, by virtue of "her marriage articles; another third to be the teftamentary part 2 66 |