Page:The English Reports v1 1900.pdf/1471

riage should take effect, did for himself, his heirs, executors, and administrators, covenant, promise, and agree to and with the said Joseph Townsend and Thomas Matthews, their executors and administrators, that the heirs, executors, or administrators of him the said Sir Thomas Drury, in case the respondent should survive him, should pay her, during her life, the yearly sum of £600 without any abatement whatsoever, half yearly and also that in case any lands, tenements, or hereditaments of the said Sir John Tyrell, deceased, should in any way descend, remain, accrue, or come to the respondent during her said coverture, then the said Sir Thomas Drury and the respondent should, and would immediately thereupon, convey, settle, and assure all such lands, tenements, and hereditaments, to the uses aftermentioned; that is to say, to the use of the said Sir Thomas Drury during his life, and afterwards to the use of the respondent and her assigns, during her life, and after her death, to the use of the said Sir Thomas Drury, and his heirs and assigns for ever.

This deed was excuted by Sir Thomas Drury and the respondent, in the presence of Elizabeth Kellaway, the respondent's then guardian; and she was a subscribing witness thereto and the marriage was solemnized soon after, with the privity and approbation of the said Elizabeth Kellaway; and the respondent on such marriage was entitled to a portion not exceeding £2000: but she was then an infant, under the age of 21 years.

On the 20th of January 1750, Sir Thomas Drury died intestate, being seised in fee simple of a real estate of the yearly value of £2600, and particularly of a mansion-house at Overstone in the county of Northampton, where he resided in the summer season, with a park and offices, outhouses, gardens, and appurtenances thereto belonging; and he was also at his death possessed of, or entitled to, a very considerable personal estate, to the amount of £60,000 or upwards; and at his death left the respondent his widow, and the appellants, the Countess of Buckinghamshire, and Jocosa Catherina Drury, his only children and co-heiresses at law, being both then infants: whereupon they became entitled to all the real estate of the said Sir Thomas Drury, as coparceners in fee, and to the whole of his personal estate, subject to the payment of the said annuity of £600 to the respondent during her life, and subject to the payment of all the other debts and engagements of the said Sir Thomas Drury.

Soon after the death of Sir Thomas, lotters of administration of his personal estate were granted to the respondent, and she possessed the same, or great part thereof; and afterwards insisted, [494] that as she was an infant at the time of the execution of the aforesaid indenture of settlement, and at the time of the solemnization of her marriage, she was not bound to accept the provision thereby made for her, but that she was entitled to dower out of all the real estate of Sir Thomas Drury, and to her distributive share of all his personal estate.

And therefore the appellants, the Countess of Buckinghamshire (then Mary Ann Drury, spinster) and Jocosa Catherina Drury, (both then infants, by their next friend,) in Trinity term 1759, exhibited their bill in the Court of Chancery, against the respondent; stating the said settlement and marriage, and the death of Sir Thomas Drury intestate, leaving the said widow, and the said appellants, his only children, and that he was seised and possessed of, or entitled to such estates as aforesaid, and that the respondent, as his administratrix, had possessed his personal estate, and had also entered on the real estate, and received the rents and profits thereof; and praying, that an account might be taken of the rents and profits of the real estate received by the respondent, and also of the personal estate of Sir Thomas Drury, and the interest and profits thereof, and an account of his debts and funeral expences; and that the clear surplus of his personal estate, after payment of his debts and funeral expences, and other necessary charges, might be brought into court, and placed out at interest for the benefit of the appellants during their minority; and that proper persons might be appointed to receive the arrears, and the growing rents and profits of the real estate, and also the personal estate, during the minority of the said appellants; and that out of the rents and profits of such real estate, and the interest and produce of such personal estate, the said annuity of £600 might be retained by, or paid to the respondent for the time past and to come; and that a suitable allowance might be made for the maintenance and education of the appellants, for the time past and to come; and that the savings of the appellants yearly income, after deducting what should be so paid for their maintenance and education, might be from time to time placed out at interest, and improved for their respective benefit, during their minority.