made by the trustees of the estates, devised to them, to the uses, &c. in the will; and immediately after such settlement, to limit the same to his wife for her life, in case she should survive him for her jointure, and that he and his wife, as soon as they should become seised of the said estates for their lives, would by fine, &c. convey the same to the use of Belchier, or as he should appoint, for the lives of Aleyn and his wife, and the survivor of them: in consideration whereof, Beichier covenanted to pay the following annuities, &c. viz. to the wife, for the joint lives of her and her husband an annuity of 60l. for her separate use, an annuity of 607. per annum to Aleyn it he should survive his wife, and 100l. a-year to the wife if she should survive him, and to the wife's son by a former husband 100 guineas at twenty-one, and 5l. a-year in the mean time for maintenance. A settlement was afterwards executed by the trustecs, and Aleyn limited the estates to his wife for her life under the power, subject to the mortgage made by the trustees to Belchier, and afterwards Aleyn and his wife conveyed their life estates by a fine to a trustee for Belchier. Belchier insisted that the settlement was a good and effectual settlement, and was made upon a good and valuable consideration and was not void, and that he was entitled to the benefit of it.

The remainder-man stated, that lie was advised, that in case the power of jointuring was executed by Edward Aleyn for any other purpose than for a fair jointure for his wife, such execution was contrary to the intention of the testator, and a fraud upon the remainder-man.

It was decreed, "that the deed of appointment was not to be supported in this court any further than to charge the premises with the annual sum of 100/. agreed to be paid by the deed of 1st August to Jane Aleyn the wife of Edmund," and directions were given accordingly.

No. X.

Scroggs v. Scroggs.

Reg. Lib. B. 1754, fol. 496 (a).

The trust in the agreement before marriage was "to permit euch son or sons of their bodies, and the heirs-male of such sons, to receive the rents during all such time as the trustees should have in the premises, as the plaintiff's father, together with the trustees or the major part of them, or together with the survivor of them should appoint." By the settlement the eldest son was in every event to have 100l. a-year, and children were substituted for sons. The settlement was executed when the plaintiff, the eldest son, was two and one-half years old, and he had lost his sight. The plaintiff stated that his father wanted him to sell his reversion, which he would not do, and that then the father made a bargain with the second son, to whom he appointed: That the fa.her represented to the trustee that the eldest son had threatened to sell his reversion, and was very undutiful, &c. The plaintiff insisted that the variation in the settlement, as there was then no other son, and he had lost his sight, was to warrant an appointment to a daughter in case there was no other son.

The father and mother denied any knowledge of the variation, and stated the disorderly life of the son, and his marriage to a woman of no fortune. The father stated that he applied to his son to join in the sale of the estate for his own benefit.

The father's answer, in which he represented the Duke of Somerset, the surviving trustee, as a perfectly consenting party to the appointment, was flatly contradicted by the Duke himself, who stated, that he believed that the father had misrepresented the son to him, and that if he had been apprised of all the cireumstances, he would not have executed the appointment. There appeared to be a dispute between the father and eldest

(a) Vide supra, p. 330.

son

son about another estate, belonging to the son, of which the father had received the rents during the son's minority.

It was decreed, "that the deed of appointment be set aside, and that it be delivered up to the plaintiff to be cancelled, and that neither the defendant Edward Scroggs (the second son) nor any of his issue do insist on or make use of the deed of appointment, or the contents or operation of it, in any court of law or of equity; and his Lordship doth declare, that the settlement executed after the marriage hath unwarrantably departed from the marriage articles, by limiting the estate to the use of such child or children as should be appointed, instead of limiting the same to such son or sons, &c. and that the same ought to be rectified; and his Lordship ordered a new settlement to be executed accordingly," and the father was decreed to pay the costs.

No. XI.

Phelp v. Hay (a).

Rolls, 18th May 1778,

14th March 1747.-By the agreement made previously to the marriage between the Rev. Abraham Phelp and Ayliffe Tufton, After reciting, that upon the treaty for the marriage it was agreed that Ayliffe Tufton should have power, as well before as after such marriage, either to make an absolute sale of her lands and chattels, and with the monies raised by such sale to purchase other lands and chattels any where in England, and convey unto the trustees therein named, their heirs, executors, &c. or unto. such other persons as the said Ayliffe Tufton and her mother should nominate, as well all such lands and hereditaments wherein the said Ayliffe Tufton then had an estate of freehold or inheritance in fee simple or fee tail, or for terms of years, or otherwise howsoever, as also such lands and chattels which might be purchased as aforesaid, to and for the use and benefit of the said

(a) Vide supra, p, 357, 369,

Abraham

Abraham Phelp and Ayliffe Tufton and the issue of their two bodies in such manner and form, and by and after such rates, shares, and proportions either jointly with the said Abraham Phelp, or alone, separate, and apart from him as the said Ayliffe Tufton should think proper and fit to do.

9th and 10th February 1749.-By indentures of lease and release, and by, a fine, Mr. and Mrs. Phelp (the marriage having been solemnized) conveyed her 6th part of certain real estates unto Sir George Hay,his heirs and assigns for ever, in trust nevertheless, to the use of the said Abraham Phelp, and Ayliffe his wife, and their assigns during their lives, and the life of the longer liver, remainder to the use of such person and persons, and for such estate and estates as the said Ayliffe Phelp should in manner thereby required, appoint; and in default of such appointment, in trust to, and for the use of the right heirs of the said Ayliffe Phelp for ever. Note. The fine was declared to be to the use of the said Sir George Hay and his heirs, in trust nevertheless, to, for, and upon the uses and trusts before expressed.

13th Feb. 1755.--By an indenture between Ayliffe Phelp, then the widow of the said Abraham Phelp of the one part, and the said Sir George Hay of the other part. After reciting the articles of 14th March 1747, and the indentures of the 9th and 10th of February 1749, and the fine levied accordingly. And also reciting, that by the indenture of release, a greater power was given to the said Ayliffe Phelp of disposing and limiting her said lands and estates than was given, or intended to be given, to her by the said articles made previous to her marriage, it being the intention of such articles, and of the parties thereto, that the said Ayliffe Phelp should limit, settle, and assure her said lands and estates unto, and upon the issue of the bodies of them the said Abraham Phelp and Ayliffe, in case they should have any such; and the said Ayliffe Phelp having then three children by the said Abraham Phelp, to wit, Charles Tufton Phelp her eldest son, Jane Phelp her daughter, and James Phelp her youngest son, it is witnessed, that for the settling and assuring the said sixth part of the said premises upon the children and issue of the said Ayliffe Phelp by the said Abraham Phelp, according to the said articles of agree.

men

ment, the said Ayliffe Phelp, by virtue of the power unto her given, as well by the marriage articles as by the indenture of release, did grant, limit, direct, and appoint that the said Sir George Hay, and his heirs, should from thenceforth stand seised of the said undivided sixth part of the said premises, and that the said fine and the uses thereof should cnure to the use of the said Ayliffe Phelp and berassigns for life, remainder, to the use of the said Charles Tufton Phelp, James Phelp, and Jane Phelp, or to any or either of them, their, his, or her heirs, and assigns in such manner and form, and by and after such rates, shares, and proportions, and charged and chargeable with such sum and sums of money, unto and amongst any or either of them the said Charles Tufton Phelp, James Phelp, and Jane Phelp, and at such time and times as she the said Ayliffe Phelp should by any deed, or by her will to be duly executed in the presence of, and attested by three or more credible witnesses, give, grant, devise, limit, direct or appoint; and for want of, and in default of such appointment, to the use of the said Charles Tufton Phelp, James Phelp, and Jane Phelp, and his and their several and respective heirs and assigns as tenants in common, and not as joint tenants.

Charles Tuften Phelp died under age, and without issue.

19th May 1772 --The said Ayliffe Phelp, by her will, duly executed declared her will and meaning to be, and she did thereby by virtue of the proviso aforesaid direct and appoint, that the said Sir George Hay should stand seized of the said sixth part of the said estates, in trust by mortgage to raise and pay thereout to testatrix's daughter, Jane Phelp, her executors, administrators, and assigns, within six months after testatrix's deccase, the sum of 2000l. and subject thereto, to the use of the said testatrix's son James Phelp, and his assigns for life; remainder to the said Sir George Hay and his heirs during the life of the said James Phelp in trust to preserve contingent remainders, with remainder, after the decease of the said James Phelp, to his issue in general tail; and in default of such issue, to the use of testatrix's daughter Jane Phelp for life; remainder to the said Sir George Hay and his heirs during her life, in trust to preserve contingent remainders, with remainder after the decease of the said Jane Phelp to her issue in general