Barron v Constabile

• Jurisdiction: Ireland
• Judgment Date: 19 April 1858
• Date: 19 April 1858
• Court: Rolls Court (Ireland)

Rolls.

BARRON

and

CONSTABILE.

Hervey v. Hervey 1 Barn. Ch. Rep. 103.

Zouch v. Woollston 2 Bur. 1136.

Biggs v. SadleirUNK 10 Ir. Eq. Rep. 522.

Brown v. Thornton 6Ad. & El. 185.

Chesner v. NoyesENR 4 Camp. 12.

Ex parte Church 1 Dowl. & Ryl. 324.

Boyle v. WisemanENR 10 Exch. 647.

Green v. GreenENR 2 Jo. & Lat. 529.

In re Chambers a minorUNK 11 Ir. Eq. Rep. 518.

The Queen v. Kenilworth 7 Q. B. 652.

Alison v. Furnival 1 Cr, M. & R. 292.

Rex v. PiddlehintonENR 3 B. & Ad. 460.

Hervey v. HerveyENR 1 Atk. 561.

Smith v. WoodwardENR 4 East, 585.

Cox v. AllinghamENR Jac. 337.

Liebman v. Pooley 1 strak. 167.

Erringham v. RudellUNK 2 m. & R. 138; S. C., Lew. C. C. 167.

Appleton v. Lord Braybrooke 6 Man. & Sel. 34.

Brown v. ThorntonENR 6 Ad. & El. 185.

Green v. GreenUNK 2 J. & Lat. 541.

CHANCERY REPORTS. 467 of the 18th of April 1810, for the purposes of sale or otherwise. But the Court, having regard to the evidence in the cause, and the viva voce examination of Francis Ford, Esq., doth decline to order that an injunction do issue to restrain the respondent from cutting turf for sale on the remainder of the said demised premises ; and it is further ordered that the petitioners and respondent respectively do abide their own costs; and the Court doth make no rule on the cross notice. Rolls Motion Book, 401, f. 99. 1858. Rolls. STEVENSON MOORE. Order. Feb. 8, 9, 11, April 19.' THE petition was filed to raise the arrears of a jointure on certain By a deed, lands in the county of Waterford. The petitioner had been the executed while he was un married, a man had an estate for his life in certain lands, and a power to charge them with any sum of money not exceeding the yearly sum of £600, as a jointure for his wife. He married twice, and by his will he devised the lands to his second wife for her life, subject to a rentcharge of £300, to be paid to his only daughter by his first marriage, who was entitled to the lands under the said deed ; and in case of the death of his daughter without lawful issue, he devised the entire rents of the lands to his wife for life ; and in case his daughter should survive his wife, he devised the entire lands to her for life, and then to her heirs for ever. Held, first, that the power authorised an appointment in favour of the second wife. Secondly, that the will was in Equity a valid appointment in her favour, of such annual sum, not exceeding £600 a-year, as the net rental of the lands would amount to, over £300 a-year. An affidavit of a respondent put in issue marriage articles, and stated their contents, " as by the same when produced and proved will appear." The articles were lost, but their loss was not stated in the affidavit.-Held, that secondary evidence of their contents was not admissible. The articles had been executed at Genoa, and a copy of them had been registered at the British Consulate there, by an officer whose duty it was to compare the registered copy with the original.-Held, that the copy of the registered copy was not admissible in evidence. After the cause had been heard, the book containing the copy of the articles was, on the application of the respondent's solicitor, forwarded to the Judge, but he refused to admit it in evidence without a re-hearing. A husband, tenant for life of his estate, with a power to charge a jointure for a second wife, by articles executed on his first marriage, covenanted that in case there should be a child or children of that marriage, he would assign the wife's fortune, as also his own property in lands and money, among such child or children in such manner as he (the husband) by deed or will should appoint. But, in case the wife should survive the husband, that an annuity should be paid to her out of his estate, which was stated in the articles to be the absolute property of the husband ; and it was agreed that if the wife's fortune should not be paid, the articles should be void.-Qucere, whether the articles amounted to a contract by the husband which precluded him from charging a jointure for a second wife ? 408 CHANCERY REPORTS. 1858. second wife of Pierce Francis Barron. By a deed bearing date the Rolls. 10th of March 1826, the said lands were conveyed to Morgan Barron, BARRON to the use of Pierce F. Barron (who was then unmarried), for life, CONSTABILE with remainder to his issue, subject to a power of appointment, and Statement. power was given to him to appoint a jointure, not exceeding £600, "for the wife of the said Pierce Francis, in case she should survive him." On the 13th of June 1826, Pierce F. Barron married Anne De Stankar, his first wife, at Genoa. Articles were executed on that marriage, which were alleged by the respondent to amount to a contract on the part of Pierce F. Barron not to exercise the power to charge a jointure in favour of any after-taken wife. The articles were alleged to have been lost, but the loss of them was not put in issue by the answering affidavit, which referred to the articles "when produced and proved." A copy of them was ,registered at the British Consulate at Genoa, and it was proved that it was the duty of an officer of the Consulate to compare the registered copy with the original articles. There was issue of the first marriage of Pierce F. Barron, one daughter, the Countess Constabile, who, with her husband the Count Constabile, were respondents. The first wife of P. F. Barron died in 1828, and in 1838 he married the petitioner. On the 23rd of June 1842, he made his will, by which he devised the lands to the petitioner for life, subject to an annuity of £300. to his daughter the Countess Constabile. He died in 1846, leaving no issue by the second marriage. The defences set up by the respondent were, first, that the power did not authorise the appointment of a jointure to the second wife ; secondly, that the will was not a due execution of the power to jointure ; thirdly, that the articles of the 13th of June 1826 amounted to a contract by the husband not to execute the power to jointure. The terms of the power and will are stated at length in the judgment, infra, pp. 470, 471, 472. The respondents alleged that the articles had been lost, and tendered a copy of the registration of them at the British Consulate at Genoa. They proved by the solicifor of the executors of Pierce F. Barron, who was examined at the hearing, that he had searched for the original among the CHANCERY REPORTS. 469 executor's papers which were in his possession ;' but he could not say 1858. that all the papers of Mr. Barron, who had died at Aix-la-Chapelle, olls. ARRON were in his possession. The witness also stated that he had applied B v. to Mr. J. B. Hearn, the solicitor of Morgan Barron, the trustee of CONST ABILB the deed of the 18th of March 1826, for permission to search among the papers of Morgan Barron, for the original articles, but Mr. Hearn told him that he would not let him search, because he had not the deed. The witness also proved service of notice on the petitioner, very shortly before the hearing, asking for permission to search among her papers. Statement. Mr. F. Fitzgerald and Mr. Hemphill, for the petitioners, argued Argument. that the power to jointure authorised an appointment in favour of the petitioner, as P. F. Barron was unmarried when the deed of the 10th of March 1826 was executed ; and that the will was in Equity a valid execution of the power : Hervey v. Hervey (a). That the articles referred only to lands which were the absolute .property of P. F. Barron, and could not be construed to be a contract not to charge these lands in which he had only a life estate : Zouch v. Woollston (b). They also contended that the copy of the registration of the articles was not admissible, as it was a copy of a copy, and a proper search had not been proved for the original : Biggs v. Sadleir (c); Brown v. Thornton (d); Chesner v. Noyes (e); Ex parte Church (f) ; Boyle v. Wiseman (g). Mr. Brewster and Mr. R. Foley, for the respondents, argued that the will did not amount to a valid execution of the power, and that Pierce F. Barron had contracted by the articles to settle all his property on the issue of the first marriage, and had thereby incapacitated himself from executing the power : Green v. Green (h); In re Chambers a minor (i). As to the admissibility of the copy of the registration of the articles of the 13th of June 1826, they (a) 1 Barn. Ch. Rep. 103. (b) 2 Bur. 1136. (c) 10 Ir. Eq. Rep. 522. (d) 6 Ad. & El. 185. (e) 4 Camp. 12. (f) 1 Dowl. & Ryl. 324. (g) 10 Exch. 647. (h) '2 Jo. & Lat. 529. (i) 11 Ir. Eq. Rep. 518. 470 CHANCERY REPORTS. 1858. cited 18 & 19 Vic., c. 42 ; The Queen v. Kenilworth (a); Alison Rolls. v. Furnival (b); Rex v. Piddlehinton (c). BARRON V. CONSTABILE The MASTER OF THE ROLLS. April 19. The petition in this case was filed for the purpose of recovering Judgment. the arrears of a jointure claimed by the petitioner under the will of her late husband Pierce Francis Barron ; and which will, it is alleged by the petitioner, is a due execution of a jointuring power granted to the said Pierce Francis Barron by a certain deed of the 10th of March 1826. The petition states that an indenture, dated on the 10th of March 1826, was made between James Barron, of the first part, the said Pierce Francis Barron, second son of the said James Barron, of the second part, and Morgan Barron, of the third part ; which indenture recited that said James Barron was seised in fee of the lands of Drumgoury and Knockanalten, in the county of Waterford, and that he had agreed to convey the said lands to the said Morgan Barron and his heirs, upon the trusts thereinafter mentioned ; and after such recital it was witnessed that the said James Barron, for the considerations therein mentioned, conveyed to the said Morgan Barron and his heirs the said lands, in trust, to permit the said Pierce Francis Barron and his assigns, from the date thereof, to receive...