Page:The English Reports v1 1900.pdf/1472

To this bill the respondent put in her answer; and thereby said, that she had possessed so much of the personal estate of Sir Thomas Drury as she was able, but that she had not received any rents or profits of his real estate; and she insisted, that as she was an infant when she executed the said indenture of settlement, and at the time of her marriage, she could not, nor ought to be barred by the said indenture; but was at liberty to make her election, whether she would accept the said annuity, or waive the same, and take her dower out of the real estate of Sir Thomas Drury, and her distributive share of his personal estate under the statute; and she submitted to account for such part of the personal estate of Sir Thomas as had been possessed by her, and for the interest and produce thereof, having all just allowances: and [495] she thereby said, that if the court should be of opinion, that she was at liberty to waive the annuity of £600 and to claim such rights as she was by law entitled to, in and to the real and personal estates of Sir Thomas Drury; then she thereby waived the annuity, and claimed to be entitled for her life to a third part of the real estates late of Sir Thomas Drury, as her dower, and also to be entitled absolutely to a third part of the clear residue of his personal estate, and the interest and produce thereof. But if the court should be of opinion, that she was bound by the said indenture, notwithstanding she was an infant at the time of executing the same, then she claimed title, by virtue of the said indenture, to a clear annuity of £600 from the time of the death of Sir Thomas Drury, payable half-yearly, during her life, the first payment to be made on the 25th of March 1759; and she also claimed a suitable allowance for the maintenance of the appellants her daughters, from the death of their father to that time, and also for such further time as she should maintain them.

This answer being replied to, depositions were taken in the cause, whereby it appeared, that the respondent was born on the 23d of December 1716, and intermarried with Sir Thomas Drury on the 11th of October 1737.

The cause was heard before the Lord Chancellor Henley, on the 27th, 28th, and 29th of February 1760, and the 3d, 4th, 6th, and 7th of February, and 1st of June 1761, on the last of which days his Lordship was pleased to decree, that it should be referred to the Master, to take an account of the personal estate of Sir Thomas Drury, come to the hands of the respondent; and of his debts and funeral expences, which were to be paid out of his personal estate, in a course of administration: and his Lordship declared, that the respondent being an infant at the time of her executing the indenture of the 5th of October 1737, was not barred of her dower in the intestate's real estate, nor of her share of his personal estate under the statute of distributions; and therefore his Lordship ordered, that so much of the bill as sought to bind the respondent by the said agreement, should stand dismissed; and that the clear surplus of the said intestate's personal estate, after payment of his debts and funeral expences, should be divided into three equal parts, whereof one third part was to be paid to, or retained by the respondent, as her share thereof under the said statute; and the other two third parts thereof were to be invested in the purchase of three per cent. Bank annuities, in the name and with the privity of the accomptant general, in trust in the cause, for the benefit of the appellants the Countess of Buckinghamshire and Jocosa Catherina Drury respectively, until they should attain their age of 21 years; and he was to declare the trust thereof accordingly, subject to the further order of the court: and if the said two third parts belonging to the appellants respectively, or any part thereof, had been thentofore invested in government securities, the same were [496] to be transferred to the said accomptant general, in trust in the cause, for the said appellants respective benefit; and he was to declare the trusts thereof in like manner: and the appellants were to be respectively at liberty to apply to the court for further directions relating thereto, as there should be occasion: and directions were given, concerning the allowances for the maintenance and education of the appellants; and a receiver who had been before appointed of the intestate's real estate, under an order made in the cause, was to be continued until the further order of the court, and to pass his accounts before the Master, and to pay one third part of the clear yearly rents of the said intestate's real estate, from time to time as the same should be received by him, to the respondent, in lieu and satisfaction of her dower; and the other two third parts of such clear yearly rents from time to time as the same should be received, into the Bank, with the privity of the said accomptant general, to the account of the cause; and directions were given for placing out such two third parts of the said rents from