1 Atk. 282.-2 Atk. 1.-Mackenzie v. The Marquess of Powis, 4 Bro. P. C. 328.-Gradock v. Marsh, 1 Ch. Rep. 205.Hurdret v. Calladon, 1 Ch. Rep. 214.-2 Ch. Ca. 217.Brereton v. Gamul, 2 Atk. 240. Lord Loughborough.-If it were made out that the plaintiffs were prevented from trying their cause by fraud, I should think, under the principles of this Court, the defendants ought to be restrained from setting up the fine as a bar; but here the plaintiffs take it for granted, that a bill filed in this Court for any purpose will prevent the statute of limitation or a fine barring.-All legal interests are bound by the fine: If the subject-matter of the suit be of legal jurisdiction, the bringing a suit in equity will not bar the operation of the fine.-If a demand of a debt be made here, if it be a legal debt, this Court being applied to for a discovery, will not prevent the statute of limitations from running; but if it be for payment out of assets, for which this is the proper jurisdiction, there the filing of the bill is the commencement of a proper suit. I do not say that a case may not exist, where the bad faith of parties may make a ground to prevent a fine from barring; but here was only a communication of the truth of the case; the attorney stated all he knew it was not his duty to give notice of the fine. It is not in proof that it was in consequence of this they did not try the cause. It was their own judgment that decided upon it. A legal bar has taken place in consequence of a legal provision, whether that provision be wise or not it must bind. No hardship has occurred, in consequence of which they can say that in conscience the fine should not be set up. This is a legal title, over which this Court has no jurisdiction, and no fraud has intervened. The bill must therefore be dismissed. Lord Commissioner Ashhurst.-I am of the same opinion,where a bill is filed, with a prayer for equitable relief, the policy of the law suspends the statute of limitation; just as in the case of the commencement of an action.-But with respect to a fine the case is different, the bringing an action is not sufficient to bar the operation without an actual entry; no more can the bringing a suit here be so, unless the entry was prevented by fraud. In any other case the filing the bill cannot prevent the bar; and in this case there was no fraud, but a fair disclosure. Lord Commissioner Hotham.-If the filing of the bill is not a sufficient bar, it will stand on the circumstances of the case. It' was a mere bill of discovery, which is not sufficient. If the circumstances were such that there had been an imposition upon the party, I think the Court should interpose; but it was a fair candid conversation. Bill dismissed. 1783. PINCKE V. THORNYCROFT. [ 292 ] 1783. PINCKE v. This decree was reversed upon appeal to the House of Lords, 28th February, 1785 (a). (a) For the proceedings in the House THORNYCROFT. of Lords vide 4 Bro. P. C. Ed. Toml. 92. In addition to the reversal of the decree it was ordered that the plaintiffs should be at liberty to bring an action, &c. and that Edward Thornycroft should not insist on the fine and non-claim, &c. The case of the appellants, which is also in Mr. Cruise's Essay on Fines, 5 Dig. 260, contains a very able discussion of the doctrine upon this subject. For the case of Bond v. Hopkins, 1 Sch. & Lef. 413, Lord Redesdale, in one of the most luminous and elaborate judgments ever delivered, has entered into a full discussion of the cases in which a Court of Equity interferes to prevent an advantage gained at law from being used against conscience, Lords Commissioners, Lord one mode of which consists in enabling the party to try his title at law without the impediment which may against conscience be opposed at law to his proceedings. A court therefore, considering it against conscience to make use of a fine levied pending a suit in equity, will interfere as in the principal case. And this principle is accordingly established with reference as well to the Statute of Fines as to the Statute of Limitations and the Statute of Frauds. Mackenzie v. The Marquess of Powis, 7 Bro. P. C. Ed. Toml. 28. Vide also Pulteney v. Warren, 6 Ves. 79, and the observations of Lord Manners in Blennerhasset v. Duy, 2 Ba. & Be. 104. Loughborough, Ashhurst, and Hotham. Hall, 4th July, 1783. Rent-charge devised to a wife, not a bar of PEARSON T. PEARSON. Lincoln's-Inn THE testator gave by his will ten acres of land to his son, subject to a rent-charge of £10 per annum to his wife for life, and £5 a year to his brother. The bill was filed by the widow for the annuity and her dower; and the only question was, whether the rent-charge to the wife was a bar of her dower, it not being so expressed in the will. Mr. Kenyon and Mr. Lloyd cited Lawrence v. Lawrence, Eq. Ab. 218, 219. (1 Bro. P. C. 591.) Davis v. Edwards (before Lord Bathurst) that rent-charge will not bar dower, unless so expressed. On the other side was cited Villa Real v. Lord Galway, before Lord Camden. (Harg. Co. Lit. 36 b.) dower, unless so expressed, or the circumstances such as to shew it must be so intended. Lord Loughborough.-The law is perfectly settled, and very plain. The gift of an annuity to the wife may be a bar of dower, or may not, according to the language of the will: Arnold v. Kempstead, (cited in the same note upon Co. Lit. 36 b.)(a).— In Villa Real v. Lord Galway, it was held to be a bar, because otherwise The Reporter having been favoured with a very accurate note of Lord Camden's judgment on the point of dower in this case (in which the former cases on the subject are considered) he has added it here. Lord Chancellor stated the testator Mr. Villa Real's will to be as follows: "I give and devise to my dear wife one annuity or clear yearly sum of £200 of lawful British money, to be paid her by two equal half-yearly payments, &c. which annuity I give her during her natural life," &c. And subject to the (a) Since reported 2 Eden, 236. S. C. Amb. 466. payment otherwise the other devises in the will could not take effect. In this case, if the value of the lands should not be sufficient to satisfy payment of the said yearly annuity or yearly sum of £200 to my wife during her natural life, I give and bequeath all and every my messuages, cottages, &c. &c. and also my personal estate as hereinafter mentioned; i. e. "I give and devise," in words comprehensive of all his real estate, "to trustees and their heirs, in trust to preserve and support the contingent uses and remainders from being defeated and destroyed, and for that purpose to make entries; yet nevertheless to permit and suffer my daughter or her trustee hereinafter mentioned, to receive and take the rents and profits of all and singular the premises to and for her proper use and benefit, and to let, set, and demise the same for the best rents, without taking any fines for her natural life, and then in trust for the use and behoof of the heirs of the body of my said daughter, and in default of such issue remainders over. All the rest and residue of my ready monies and personal estate to Lord Galway in trust, to vest the same in the purchase of lands, to be conveyed to the trustees in trust, for the same uses as before limited of his real estates. If the annuity be behind or unpaid, his wife to enter on the said estates, or any part thereof, or into any estates to be purchased, to distrain, &c. till arrears are fully paid and satisfied." The questions upon this will: 1. Whether Mrs. Villa Real is to take this annuity in satisfaction of dower out of her husband's real estate : 2. Whether Mrs. Villa Real is entitled to this annuity clear of the land-tax. At the hearing of this cause two cases were relied upon by each side upon the first point: The first, the case of Pitt v. Snowden, determined by Lord Hardwicke, where, upon a like will, he determined the widow to be entitled both to dower and annuity: The other, the case of Arnold v. Kempstead, where Lord Northington, in a similar case, was of opinion that the widow was entitled only to one, and put to her election. Pitts v. Snowden was thus: Devise to his wife of an annuity of £50 a year payable out of his copyhold and his freehold messuages, with clause of entry and distress, to be made good out of his personal estate. And, subject to the annuity, he gave his freehold messuages to his three children, &c. Arnold v. Kempstead. Testator gave some leasehold estates to his wife for life, and then gave his wife £10 a year, (£20 whereof to be paid within twelve months after his decease) to be paid to her yearly during her natural life, or so long as she should continue a widow, out of the rents and profits of his freehold estates in Queen's Square. No clause of entry and distress. But gave all his freehold estates in Queen's Square to his son, with remainders over. The case now before the Court is more exactly correspondent in the form of the devise to Pitts v. Snowden than to the other case; for in these two there is an express clause of entry and distress, whereas there is no such power in Arnold v. Kempstead; and they more perfectly resemble each other in another circumstance, as the annuity in both is charged upon other funds not subject to dower, as well as upon the dowable estate; whereas in Arnold v. Kempstead the annuity is made to issue only out of the freehold estate subject to dower. These two being alike in all their circumstances, I must admit that Pitts v. 1. Whether if a rent-charge is given to the widow, issuing out of the estate subject to dower with power of distress, this devise shall operate as a bar or satisfaction of her dower. I am of opinion that it shall, because the claim of dower first disappoints the will, and second is inconsistent with it. 1783. PEARSON V. PEARSON. 1783. PEARSON v. PEARSON. satisfy the two annuities and the dower it would prove it was intended to be in bar, otherwise there is nothing in the will to shew such It is admitted that every devisee must confirm the will in toto, if he claims any interest under it; and will consequently forfeit such interest if he impeaches or intercepts any part of it. In this case the will is contradicted by the claim of dower. First, Because it puts the trustees out of possession; for they cannot hold the whole, subject to the annuity and distress, without being in possession of the whole: nor can the annuitant, consistent with the will take possession of any part, because her right of entry into the whole puts her out of possession of the whole, till her right of entry accrues upon default of payment. And though the present case gives the right of entry upon the whole, or any part in more explicit terms than Pitts v. Snowden, yet the general power of entry and distress in Pitts v. Snowden, is tantamount in this particular. The position therefore of the trustees, being co-extensive with the annuities and the distress, it is not possible in such a case to make the land subject to the dower and the rent-charge at the same time, because As annuitant the widow must be out of possession of the whole; as dowress she must be possessed of a part. Hence it follows, that where the testator gives the estate subject to the annuity, as he doth in this case, he must be intended to give subject to the annuity only, and the residue of the rents and profits being given to the devisee, that devise must exclude all charges, except only the annuity. In this view of the matter, the widow by the claim of dower disappoints the will in the most essential part of the testator's plan, by reducing the interest of the devisee, and loading the estate with an additional burthen. 2. The claim of dower, is inconsistent with the will in another light, as it will diminish the annuity itself, which is contrary to the very words of the will. The annuity is either given over and above the dower, or in satisfaction of it. He intended only one, or he intended both, if both, he intended both should be enjoyed in their full extent; the whole annuity and the whole dower, Now can the widow enjoy the annuity as the will has given it if she claims her dower? It is most clear that she cannot : For if she enters into a third right of her dower, she must sink so much of her annuity as that third ought to bear in proportion. That is a violation of the will, and whether the annuity clashes with the dower, or the dower with the annuity, it is equally decisive, for she can never enjoy both, unless both can be reconciled to the will: Nor is there any pretence to say that the whole annuity, by an equitable marshalment, shall be thrown upon the two remaining thirds; because that would in terms contradict the will, which charges the whole, and gives the power of distress on the whole. This is sufficient to shew the testator's intention; it is an intention that does not stand upon a loose presumption, but from the mode of devising in the will itself; and then the case comes within the rule of Noys v. Mordaunt, that no person shall dispute a will that takes under it. This rule is universal and without exception; and a doweress has no more right to be exempted from it, than any other devisce. The cases of Lawrence v. Lawrence, Hitchen v. Hitchen, Lemon v. Lemon, &c. may be all admitted to be good law; the will in all these cases being consistent with the claim of dower. In all these cases the dowable estate was devised generally; and as the testator had not expressed the wife's bequest to be in satisfaction, the Court would not presume it, and the estate passed cum onere. There no violence is done to the will; and the wife takes no more from the devisee than the testator intended she should; nothing being declared to the contrary. But where the dowable estate is so divided that the claim of dower makes a material change in the will itself, as it does here, the widow must be barred by necessary implication. For where is the difference between declaring she shall rot hold both, and devising so that she cannot hold both without disturbing the will? And such intention; and there must be such an intent to make it a bar to dower. The cause stood over in order to enquire into the value of the land; plaintiffs' counsel agreeing, that if it should not be sufficient to answer the annuities and the dower, the widow should relinquish her claim (a). MARSH And therefore if the claim of dower will disappoint the will, she is barred of her dower by necessary implication; which will, according to the doctrine of all the cases, be equivalent to an express declaration. I will now say a word upon the case of Arnold v. Kempstead. There is no power of distress in that will, and yet I do think it substantially within the reason of the other two cases; for the very gift of an annuity to the wife out of the dowable estate does, from the nature of the interest, throw her out of possession, and makes the claim of dower inconsistent with the will. I must not conclude without taking notice of a circumstance that may be urged against my opinion, as a proof of intention in the testator to give both dower and annuity to the wife; and that is, that the annuity is made to issue out of more than the dowable estate, from whence it may be argued that the testator enlarged the fund for payment in order to leave sufficient for the satisfaction of both the demands. I answer, First, That it is totally unknown whether he extended the charge and the remedy with that view; it is at most but conjecture, and it may as reasonably be supposed that he meant only, by augmenting the security, to give an easier and safer remedy for recovering the annuity, as nothing is more common, where a rent-charge is granted, than to charge an estate of ten times the value for the payment of it. Secondly, That this supposed intention is rebutted by a declared intention to the contrary, manifested and expressed in the will itself. I wish these cases could have been reconciled, feeling in myself a modest unwillingness to sit in judgment upon two men greatly superior to myself in learning as well as capacity; but that which in a private man would have been presumption, is an indispensable duty in a judge; the task is imposed upon me by my office, and I undertake it with more ease of mind, knowing that there is a jurisdiction superior to us all, which is able to confirm or reverse my opinion by a final decision. (a) The substance of the following note was subjoined by the Editor in a note to the case of Arnold v. Kempstead, 2 Eden, 236, as he believes it to contain a correct statement of the present doctrine upon the subject, it is here inserted, with the proper alterations. The general doctrine on this subject upon which all the cases agree, has been stated as follows: The right to dower being in itself a clear legal right, an intent to exclude it must be demonstrated by express words, or by clear and manifest implication; the instru ment must contain some provision inconsistent with the assertion of the right to demand dower. Vide cases, cit. sup. Strahan v. Sutton, 3 Ves. 249. Birmingham v. Kirwan, 2 Sch. & Lef. 414. Lord Dorchester v. Earl of Effingham, Coop. Ch. Rep. 319, and cases post. There has, however, been a considerable difference of opinion as to the application of this rule to the case of a devise of an annuity to the widow, flicting 1783. PEARSON 27. PEARSON. |