Page:The English Reports v1 1900.pdf/1470

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III BROWN.
BUCKINGHAM (EARL OF) v. DRURY [1762]

After hearing counsel on this writ of error, it was ordered and adjudged, that the judgment given in the Court of King's Bench in England, affirming the several proceedings in the Courts of King's Bench and Common Pleas in Ireland, should be affirmed; and that the transcript of the record should be remitted, to the end execution might be had thereupon, as if no such writ of error had been brought into the house: and it was further ordered, [492] that the plaintiffs in error should pay to the defendants in error, £100 for their costs, sustained by reason of the bringing of the said writ of error. (Jour, vol. 25. p. 316.)


Case 4.—John Earl of Buckingham, and Others,—Appellants; Dame Martha Drury, Widow,—Respondent [26th May 1762].

[Mews' Dig. vii. 1252. Reported as Drury v. Drury, 2 Eden, 39, 60, 74. Doubted by Lord Thurlow and Lord Northington; see Milner v. Harewood (Lord), 18 Ves. 275; Caruthers v. Caruthers, 4 Bro. C. C. 499, 507; Drury v. Drury, 4 Bro. C. C. 505 n. Discussed and distinguished in Seaton v. Seaton, 1888, 13 A. C. 67.]
[A woman married under the age of 21, having before such marriage a jointure made to her in bar of dower, is thereby bound and barred of dower, within the stat. 27 Hen. VIII, c. 10. Dower, though a just and honourable provision for the wife, is a right inconvenient to the heir, preventive of the free use and improvement of his lands, and in great estates, a far more ample provision than can be reasonably demanded, or expected. Therefore the legislature in passing the act 27 Hen. VIII. intended, that all women capable of contracting marriage, should be bound by jointures made before marriage, which are presumed to be settled by the advice of parents, guardians, and friends; or if made only by the husband, with their own consents, fairly and without fraud, still it was thought reasonable, that she whom the law allowed to bind herself by the marriage, which is the principal contract, should be bound by a provision which is accessory to that contract, and a condition of it.]

By indenture tripartite dated the 5th of October 1737, made previous to a marriage between the respondent, the mother of the appellants the Countess of Buckinghamshire and Jocosa Catherina Drury, and Sir Thomas Drury, Bart. deceased, who was the father of the said appellants, and made between the said Sir Thomas Drury, then Thomas Drury, Esq. of the first part; the respondent, then Martha Tyrell, spinster, one of the daughters of Sir John Tyrell, Bart. deceased, of the second part; and Joseph Townsend and Thomas Matthews, Esqs. of the third part; after reciting the marriage then intended between the said Sir Thomas Drury and the respondent, it was declared and agreed, that the said Sir Thomas Drury should be entitled to, and receive all the personal estate and effects which the respondent was possessed of, or entitled to, for his own use and benefit; and that all the lands, tenements, and hereditaments, then late of the said Sir John Tyrell deceased, which should descend to, or devolve upon the respondent during the intended coverture, should be settled and assured in manner therein-after mentioned; and also that the respondent, in case she should survive the said Sir Thomas Drury, should have and enjoy an annuity or yearly sum of £600 clear of all taxes and deductions whatsoever, during her life, for and in the name of her jointure, and that the same should be accepted and taken by her in full satisfaction and bar of all dower or thirds of, in, to, or out of, any lands, tenements, or hereditaments whatsoever, whereof or wherein the said Sir Thomas Drury then was, or at any time thereafter during the intended coverture should be seised of any estate or inheritance, and also in lieu and full satisfaction of any share or distributary part of any personal estate which the said Sir Thomas Drury should be pos-[493]-sessed of or entitled to, and which she could or might claim or demand by virtue of the statute for the distribution of intestates estates, or otherwise howsoever. And the said Sir Thomas Drury, in consideration of the said intended marriage, and of the portion which the respondent was possessed of, or entitled to, and which would accrue to him in case the said mar-

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