1792.

FINCH

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FINCH.

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gave by her will £20,000 to her daughter, she must have meant it as a gift, not to her daughter but to her son, to whom she gave the estate, subject to the charge. Where there are gifts in two instruments, they must both operate, unless there is evidence to shew the intention to be otherwise, Goodfellow v. Burchett, 2 Vern. 298. Devese v. Pontet, (Mr. Finch's Pre. Ch. 240. n.) Warren v. Warren, (ante, vol. i. p. 305.) But this being a case of mere bounty, is more like the case of legacies than that of portions, and in the case of legacies, where two sums are given in different instruments, they must both prevail, Ridges v. Morrison, (ante, vol. i. p. 389,) and Hooley v. Hatton, there cited in the note.

Mr. Solicitor-General, Mr. Mansfield, Mr. Mitford, and Mr. Campbell, for the defendant.

The questions are reduced to three :

1. Whether the plaintiff is entitled to the Brinsworth and Rotherham estates?

2. A question arises out of this, whether, if entitled to the estates, she is to take them exonerated of the charge?

3. Whether she is entitled to two sums of £20,000 each, or to one only?

The first and last of these questions depend on all the trans

actions.

Miss Finch must make out, that it was the intention of the mother that she should have the estates as well as the £20,000.

If the plaintiff has any right, it must be under the voluntary settlement of 1759, by which Elizabeth Finch, in consideration of natural love and affection, agrees to assure to Savile Finch all her estates in Yorkshire, and the son agrees to pay off the mortgage debt, and to pay to his sister, when he should be in possession of the estate in Kent, £20,000, for and as her fortune.

The Brinsworth and Rotherham estates were part of the Yorkshire estate which passed under this voluntary settlement. The second settlement only varies this as to the rents and profits. The question is, whether the Brinsworth and Rotherham estates were not within these agreements; and it seems to have been the intent of the parties that it was, and that Miss Finch was to receive £20,000 for her interest in those estates. Then comes the will, whereby she charges and makes subject all the estates to the payment of £20,000, as and for a fortune for her daughter, and directs it to be paid in six months after her decease; and among the enumeration of the estates which are subjected to the charge, are all her freehold manors, messuages, lands, tenements, tithes, and hereditaments whatsoever; now she had no tithes but in Brinsworth and Rotherham: and subject to the charges, she gives all her real estates to the son. She therefore intended he should take all the estates, upon paying the £20,000. How is it possible.

then

then to argue, that giving it as a fortune, she meant this to be a second fortune? Suppose the whole effect of the first agreement not to be done away by the second, it cannot be conceived that Mrs. Finch meant, after having settled the Brinsworth and Rotherham estates, that Miss Finch should both take them and the £20,000; she might, if she chose to abide by the agreement, take either the £20,000 or the estates, but that was the utmost; she could not take both. Then in 1766 Mrs. Finch died; the plaintiff was not then very young: the meaning of the family in the transaction was then very well known. The present bill was not filed till 1791, when the meaning of the parties was not so well known: but they had not been left in ignorance what it was.

Then as to the mortgage to Sitwell, it is certain that where two persons entitled to different interests in an estate, mortgage it to a third person, and the equity of redemption is reserved to one of them only, it may vary their interest. It is necessary for this purpose to look into the recitals of the deeds.

It is true that if a man mortgage his wife's estate, and reserve the equity of redemption to himself, he shall still continue seised jure uxoris; but it is not so if, by the recital, it appears that the intent of the parties is different.

The intention of the mother was, that Miss Finch should receive £20,000 for her interest in Brinsworth and Rotherham, and that the son, paying that sum, should take all the estates. She did receive £20,000, and gave a release for it, and never thought of claiming the other £20,000 till 1791.

She, by her intermediate acts, and by joining in the security, put a construction on the transaction, and has bound herself by a limitation for a valuable consideration: therefore, we submit she has no title to the Brinsworth and Rotherham estates.

If we are wrong in this point, the prayer of the bill to have the estates exonerated, is also wrong: the utmost claim she could have would be for a pro rata contribution.

2. With respect to the two sums of £20,000 all the cases turn on the intention of the parties. That of Mrs. Finch appears, from the transactions, to be clear. The principle is laid down in Copley v. Copley, 1 P. W. 147.

Mr. Attorney-General in reply.

The plaintiff is heir at law of a considerable family, who has not other provision but what she seeks by this bill.

There are two questions

First, as to her claim to a life estate in Brinsworth and Rotherham.

Second, as to her claim to the two sums of £20,000 each.

As to the former, the question is, whether there is any indication, from the transactions, that her life estate, to which she is otherwise clearly entitled, is defeated. There is clearly no deed

revoking

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FINCH.

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revoking that under which she claims, but it is said that, from a variety of transactions, it is to be implied that she has desisted from her claims. But in the mortgage made in the mother's lifetime, the equity of redemption is reserved to the plaintiff as well as the mother and Savile Finch; in the deeds after the mother's death, the equity is indeed reserved to Savile Finch; but a mistaken recital, that he was entitled to the equity of redemption, will not alter her estate. Then with respect to the two agreements between the mother and son, the plaintiff, not being a party, cannot be bound by them. But it is said she is bound by the deed of mortgage to Sitwell, and that she has raised an equity against herself by her non-claim, and by permitting the equity of redemption to be reserved to Savile Finch: but she knew nothing of the reservation of the equity of redemption, but left it to her brother's solicitor. She was doing a kindness to her brother by postponing her own £20,000, her claim to the life-estate in Brinsworth and Rotherham never arose till after the death of Savile Finch, yet under these circumstances it is argued, that the deed of 1757 is to be overturned. Then as to the deed of 1759, Brinsworth and Rotherham could not be included, Savile Finch being already in possession of those estates; so that there can be no inference, from any of the transactions, that she gave up her interest. Then the gift of the estate by Savile Finch to his widow, being a general gift of it, includes Brinsworth and Rotheram, which were the property of Mary the plaintiff; Judith the defendant cannot, under the cases of Noys v. Mordaunt, 2 Vern. 581. and Streatfield v. Streatfield take that, and also take under Savile's will.

The real point is, as to the sums of £20,000. This has been variously treated, as a case of double portions, and, as appearing from the transactions, that she was not to have both.

The cases, especially (d) Copley v. Copley, are all different from this; they are cases where the child is a purchaser of the first obligation, and that obligation personal as to the party making the second gift; and as that doctrine has been treated, it may be reasonably presumed, that the party in making the second gift looked to and meant to discharge the previous obligation.

At the time that Elizabeth Finch was giving to her son a considerable estate, she lays him under an obligation to give his sister a portion; but she was under no obligation to provide any sum as a portion for Mary, who was not a purchaser under any deed executed by her. Shifting an obligation to another person (where there is one) and even increasing it, does not operate as a satisfaction, Hanbury v. Hanbury, (ante, vol. ii. p. 529.) A little matter will serve to rebut the presumption arising from a similarity of sums, or the one being greater than the other.

(d) Also Walpole v. Lord Conway, Barnard. 159. Hinchcliffe v. Hinchcliffe, 3 Ves. 516.

It is said that the will is in execution of the deed of 1758, but that was executed, Savile having come into possession; and Mary's claim to the £20,000 had been recognized by all the mortgages down to the time of his death. The Court this day gave judgment.

Lord Commissioner Eyre.

This cause was, in its outset, so involved and entangled in the transactions of more than a century, that even Mr. AttorneyGeneral's very clear and distinct manner of stating the case, hardly made it intelligible: but the discussion which it has undergone, has cleared away a great part of the confusion which had overspread it, and we now see the case reduced to its true merits, and these lying within a very narrow compass.

There are two principal questions: first, Whether the plaintiff is entitled to a further sum of £20,000, over and above the £20,000 devised to her by her mother, and charged by her upon the estates devised to her son Savile Finch? And, secondly, Whether the plaintiff is entitled to a life-estate in the lands in Brinsworth and Rotheram, part of the Yorkshire estate belonging to this family?

The second question, if it should be determined in favour of the plaintiff, will raise a subordinate question, viz. Whether the plaintiff is entitled to have her life-estate in those lands, exonerated from the whole, or from any part of the mortgage debt of £17,000-£5,000-and £3,000, to which these lands, together with other lands comprised in the mortgage-deeds, are at present liable.

The first of these questions required nothing more for the solution of it, than that the facts should be distinctly seen and understood. Those which bear upon this point are very few: In the year 1759, Mrs. Elizabeth Finch, who had, in the year 1757, made a settlement of her estates at Brinsworth and Rotheram, part of her Yorkshire estate, upon her son for life, with remainder to his issue in tail, with remainder to the present plaintiff for her life; and having probably delivered up the possession of those estates to her son, was disposed to give up to him the rest of her Yorkshire estates: and she entered into an agreement with him, by which she undertook to convey to him the estate and family house at Thrybergh, and all the rest of the estate of which she was then possessed, and to deliver up to him the actual possession, upon certain terms and conditions not necessary to be particularly mentioned, and upon this stipulation, which has given occasion to this first question, viz. That her son should pay to the plaintiff Mary a sum of £20,000, as soon as he should come into possession upon her death, of her Kentish estates.

There was a reservation, upon which nothing turns, by a sort of postscript to this agreement, to Mrs. Finch, of a part of the Yorkshire estate called Bramley, and there was a subsequent agree

ment,

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[51]

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ment, upon which nothing turns as to this question, regulating the time and manner of his son's taking possession of these estates.

We may collect, that the son was actually put into possession of the estates under these agreements, no conveyance appears to have been made, and probably there was no conveyance in pursuance of the agreement.

Matters rested thus till the death of Mrs. Finch. By her will she devises all her estates, in general words, to her son Savile Finch, and bequeaths £20,000 to the plaintiff her daughter, and charges all her estates devised to her son, with that sum of £20,000; that sum, after her death, was paid, and the plaintiff executed a release to Mr. Savile Finch, of the sum of £20,000 to which she, was entitled under the will of her mother, taking no notice of, and probably not being then apprized of any claim she might have to another sum of £20,000 under the agreement of 1759.

It does not appear when Mrs. Mary Finch the plaintiff was first informed of the existence of that agreement of 1759, without which the weight of the argument, drawn from her acquiescence in the receipt of one sum of £20,000 cannot be ascertained. To consider this lady's claim in the light the most favourable for her, I will suppose it recently made, that is, soon after the death of her mother; a very weighty observation was made by Mr. Mansfield upon the effect and operation of the agreement of 1759, that the plaintiff was neither party nor privy to that agreement, her mother might at any time have released it, and perhaps might have prevented its ever taking effect, by suffering a recovery of the Kentish estates, and disposing of them by her will. After the death of the mother (and taking it for granted that the condition, upon which this sum of £20,000 was to be paid to the daughter, was performed) that is, that the Kentish estates were come to the possession of the son, upon the death of his mother, still the daughter had no remedy at law to enforce the payment of this sum of £20,000, and it appears to me to be very questionable, how far the daughter, as against the son (party to the agreement) and as executor of the mother (the other party to the agreement) she herself being a stranger to it, could, even in a court of equity, have compelled the payment of this money to herself; and that it would be difficult to say out of what fund it should be raised.

If a court of equity would have compelled the payment of it, it would have been because it was intended by the mother for a provision, and because it was the only provision for a daughter, and because it was reasonable to presume that the mother having done nothing in her life-time to alter or release the agreement, had, in effect, given to her daughter this sum of £20,000, possibly, upon these grounds, a court of equity might raise a trust for the daughter, of the benefit of this agreement, upon the possession or estate, of the son.

An