Warren v Newton and Others

• Jurisdiction: Ireland
• Judgment Date: 10 December 1844
• Date: 10 December 1844
• Court: Rolls Court (Ireland)

Rolls.

WARREN

and

NEWTON and others.

Beresford v. HobsonUNK 1 Mad. 362.

Coster v. CosterENR 9 Sim. 597.

Nichols v. DanversENR 2 Vern. 598.

De Mannville v. De Mannville 10 Ves. 56.

Duncan v. Duncan 19 Ves. 394.

Sturgis v. ChampneysENR 5 My. & Cr. 97.

Aguilar v. AguilarUNK 5 Mad. 414.

Adams v. PierceENR 3 P. Wms. 12.

Elibank v. Montolieu 5 Ves. 737.

Blois v. HerefordENR 2 Vern. 502.

Lord Cartaret v. PaschalENR 3 P. Wms. 199, note d.

Lupton and Wife v. TempestENR 2 Vern. 626.

Jewson v. MoulsonENR 2 Atk. 422.

Burdon v. Deane 2 Ves. jun. 608.

Lumb v. Milnes 5 Ves. 517.

Fitzer v. FitzerENR 2 Atk. 514.

Ex parte Thompson 1 Dea. Bank. Cases, 90.

Berresfod v. HobsonUNK 1 Mad. 374.

Coster v. CosterENR 9 Sim. 597.

Watkins v. WatkinsENR 2 Atk. 96.

Atherton v.NoelENR 1 Cox, 229.

Eedes v. EedesENR 11 Sim. 569.

Elliott v. CordelUNK 5 Mad. 149.

Nicholas v. DanversENR 2 Vern. 671.

Oxenden v. OxendenENR 2 Vern. 493.

Watkins v. WatkinsENR 2 Atk. 96.

Wright v. Mosley 11 Ves. 22.

Williams v. CallowENR 2 Vern. 752.

Oswell v. Probert 2 Ves. jun. 681.

Sturgis v. Champneys 5 M. & C. 97.

Guy v. Pearkes 18 Ves. 196.

Aguilar v. AguilarUNK 5 Mad. 414.

Aterton v. NoelENR 1 Cox, 229.

Haley v. BannisterUNK 4 Mad. 275.

CASES IN EQUITY. 211 1844. .Rolls. WARREN v. NEWTON and others. Dec. 10. ARUNDEL CAULFIELD BEST, by his will bequeathed several annuities A fund was brought to different persons, charged on his estates of Clone, Rathbeagh and. Court, being Acregar ; and amongst them one of £100 per annum to John Humfrey the arrears of an annuity for life, with power to settle it on any after-taken wife for her life, with charged on estate, in remainder to Lucinda C. Osborne, her heirs and assigns for ever ; and real favour of a three others to his sister, to his widow, and the plaintiff. He then married man wo- . devised his estate of Bestfield in trust to be sold, and the proceeds of husband The and and the sale to be invested; and directed a certain debt, mentioned in the - wife both ap plied for the will to be due to John Humfrey, to be paid thereout: and after payment fund: they had of the debt, testator directed that " the sum allotted out of the lands of lived separate for a long peÂ" Clone to discharge the interest payable to John Humfrey, should go riod, but the welt; was " and be divided between his sister, his widow (the plaintiff), and John fa t not in he wife " Humfrey, share and share alike, subject to the several limitations and had a separate estate for life 44 remainders already stated with respect to the several annuities already and a jointure " bequeathed to them respectively." settled on her after her bus The testator afterwards made a contract respecting this property of band's death, ander supported p Bestfield, and some codicils to his will; and it was decided at the hearing her suand of the cause, that under the events which had occurred, those four children, the husband failing annuities, which were to arise after payment of John Humfrey's debt, to contribute to had become payable as from the testator's death, which occurred in their support, although posÂOctober 1826. John Humfrey had married, and settled the annuity of sessed of a suffie £100 on his wife, but had not settled the annuity to which he might tate.ci nt The- es become entitled under the last clause ; and he had since died. Court granted the application The suit in this case was instituted to carry into execution the trusts of the wife, of the will of the testator Arundel Caulfield Best, and to administer the and ordered the fund to be estates devised by him ; and to which suit Richard Carr Boyse Osborne paid to her. (now called Carr Osborne Boyse), and Lucinda Humfrey, otherwise The wife's equity to asetÂOsborne his wife, were made parties. tlement out of Under the decree to account in the cause, both Mr. Osborne and his her own Moses in action, is in wife filed separate charges ; the former stating the title of Mrs. Osborne no respect to the annuities under the will of A. C. Best, and claiming to be entitled founded on, or influenced by, to receive them in her right, as her husband. the misconduct of the husband, Mrs. Osborne, by her charge filed the 19th of February 1840, after and is the sim - stating her title, charged that she was then, and continued to live apart pie result of the rule, that he who seeks equity must do equity. The right of the wife extends to her income, whether it arises from real or personal estate, if that interest be an equitable one. 212 CASES IN EQUITY. from her husband, and that no deed of separation was entered into between them ; and no separate provision having been made for her by her said husband, she claimed to be entitled to the said annuities without the intervention of her husband. By the settlements executed on the occasion of the marriage of Mr. and Mrs. Osborne, the estates of Mr. Osborne were, in consideration of the marriage and of the sum of £5000, the fortune of Mrs. Osborne (£3000 of which was paid at the time, and the remainder subsequently, but the payment of the entire of which Mr. Osborne disputed), charged with a jointure of £500 a-year for Mrs. Osborne, in the event of her surviving her husband. There was a large sum invested to the credit of the cause, arising out of the rents and profits of the estates; and By the final decree in the cause, bearing date the 13th of February 1844, it was ordered that the defendant, Henry Nixon, should, with the approbation of the Master, transfer to the credit of the cause, so much £3 per cent. consolidated Government annuities as should be equivalent to the sum of £363. 9s. 6d., being the amount of one-fourth part of interest money from the time of the death of John Humfrey, up to the 8th day of October 1843, to the defendant Lucinda Osborne, or to the defendant Richard B. Osborne, her husband. Pursuant to this decree, the sum of £363. 9s. 6d. was transferred to the credit of this cause; and the defendant Richard B. Osborne served notice of motion to draw the money, and at the same time, Mrs. Osborne served a cross notice of a similar application. The affidavit of R. B. Osborne, filed the 29th of November 1844, to support his motion, stated that from unhappy differences he and his wife had been for many years separated ; that she had by her influence over their children completely alienated them from him, and prevented him from seeing them or having them with him, as he was most anxious ; that his wife was then in the receipt of a large and sufficient separate property for her maintenance and support, amounting, as he believed, to £400 a-year or more, which was under her father's will settled to her separate use for life, with remainder to her children ; that on his marriage with his wife, a sum of £5000 was stated to have been her fortune, and was to have been paid over on said marriage, which he said he never received ; and that by the settlement executed on their marriage, a jointure of £500 a-year was settled on his wife, after his decease, secured upon his real estates; but that the settlement did not include any of the property now decreed to his wife, nor had he...