Page:The English Reports v1 1900.pdf/1461

The only estate of which George French, Esq, father of the appellant Ellin, and first husband of the respondent, was absolutely seised in fee, consisted of about 315 acres of land; the rest of his estate, being partly lands purchased in the names of other persons, in trust for himself, and partly reversions or remainders in fee, expectant on the determination of estates for life.

Mr. French being thus seised and entitled, made his will, dated the 17th of September 1689; and thereby devised all his real and personal estate to his executors, in trust for the payment of his debts, legacies, and children's portions; and subject to those trusts, he devised his real estate to his eldest daughter in tail, with remainder in tail to his other daughters successively. The testator then gave £500 a-piece to his younger daughters, payable after his debts and other legacies should be satisfied; and subsequent to the payment of debts, legacies, and children's portions, he devised one moiety of his estate to the respondent, his wife, during her life; and appointed her and several other persons executors of his will.

The appellant Ellin, who was the testator's second daughter, becoming entitled to his estate by virtue of a certain condition or limitation in bis will; a marriage was proposed by the executors, to Dennis Daly, sen. between her and the appellant Dennis his son; and the estate being, on that occasion, represented in a very favourable light, and the incumbrances thereon to be inconsiderable, certain articles were, on the 28th of April 1701, entered into between the executors, on behalf of the appellant Ellin, and Daly the father, on behalf of the appellant Dennis, for the settlement of this estate; and by these articles, the respondent (who was a party, as one of the executors) reserved to herself, in lieu of dower, the lands of Frenchbrooke, containing 606 acres, though she was only entitled to [479] dower of 315 acres; those being all the lands which her husband was legally seised of during the coverture.

After the execution of these articles, Mr. Daly the father discovered, upon enquiry, the particular situation of the testator's estate; and consequently, that he had been greatly imposed upon, as well by the reservation to the respondent, in lieu of her dower, as by the amount of the incumbrances, the interest whereof exceeded the yearly rent of the lands. Much altercation ensued between the parties on this discovery, and the marriage of the appellants was for some time suspended; but at length a compromise took place, by the executors agreeing to some alterations in the articles, particularly, that the respondent should be left to recover her dower according to law; and these alterations being expressed in an indorsement upon the articles, the marriage took effect.

The appellants, a considerable time after their marriage, apprehending that all the incumbrances upon the estate were satisfied, applied to the respondent for possession of the lands of Frenchbrooke, and for an account of the rents and profits thereof since the testator's death; but she insisting on holding the same in lieu of her dower, the appellants in August 1711, exhibited their bill against the respondent, in the Court of Chancery in Ireland, to be relieved in this manner; stating, that by articles previous to her marriage with the testator, she was to have a jointure of only £20 per ann. having brought him no larger portion than £150); that she could have no pretence to dower