Page:The English Reports v1 1900.pdf/338

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COLLES.
MATHEW v. PHILLIPS [1703]

forced to take many journeys, and he at the trouble and expence of many law suits to secure what he could for Sir Simon: After several years, Sir Simon wrote to him to come to an agreement for what estate Sir Simon had left, and to allow Sir Simon a certain yearly sum for his life: And in June, 1695, Sir Simon executed a second solemn revocation of the revocable settlement, having in the month of April, 1688, perfected a writing of revocation, in order, (as indorsed thereon, by the said Simon's own hand) to have liberty to dispose of all but 800l. per annum; and, 1st April, 1696, executed a deed, specifying several debts due to him; whereby, in consideration of respondent's said expences of his seven years service, and 400l. per annum, to be paid him by respondent during his life he assigned those debts to the respondent for his own use, and conveyed to him that small real estate which he had in [352] his power, (under 60l. per annum) and (though not mentioned in the deed) respondent, as a further consideration, actually gave a bond to pay the Lady Eaton 250l. per annum during her life, in case she survived Sir Simon, as she afterwards did for four years; and that Sir Simon afterwards made his will, and therein (taking notice of the extreme undutifulness of Mary) devised all his estate, real and personal, to the respondent and his heirs, subject to several annuities, whereby the remainder in fee of 100l. of the 800l. per annum; expectant upon the death of Martha without issue, was also devised to the respondent: And that Sir Simon's fears were just, for within a fortnight after his death, and about two days before the Irish act against protestants intermarrying with papists took effect, and after the same was passed, Mr. Mathews married Martha (then not above 15 years old) to his son, who had been educated as aforesaid: and that respondent endeavoured to obtain an act of Parliament to prevent Martha (whilst under the power of a popish husband) from joining in a fine and recovery to barr her own issue, or the remainder devised to respondent (which was unanimously agreed to by the House of Commons of Ireland,) but opposed here by appellant and his father, and failed; so that the whole 800l. now above 1000l. per annum, or the produce of it in money, was likely to go from a protestant family, among papists, who were but too rich and powerful in Ireland already: And that Mr. Mathews having found out a part of some imperfect articles, said to be executed between Sir Simon Eaton and Sir Richard Aldworth, in relation to the marriage between young Simon and Mary, in 1672, in Michaelmas term, 1699, (more than 27 years after the articles, and more than 20 years after the marriage-settlement) exhibited a bill in the name of the appellants in the Chancery of Ireland, seeking to impeach and overthrow not only Sir Simon Eaton's will, but his said deed of conveyance and assignment to respondent; and respondent, in affirmance of the decree, shewed that it appeared in the cause, that both the deed and the will were made in England, while respondent was in Ireland, and that his mother knew nothing of the contents of either; that Sir Simon himself dictated the will, (which confirmed the deed) and signed and published the will when of good understanding, in the presence [353] of unexceptionable witnesses, who had proved it beyond all doubt: And respondent insisted, that as to the personal estate, the articles (if in force) could not affect respondent's title under a sale and assignment for valuable consideration during Sir Simon's life; and that the undutifulness of Mary, in marrying & popish husband, was such an undutifulness, and in so considerable a point, as might be a sufficient reason for Sir Simon to dispose by will as he pleased of his personal estate; and that respondent was a purchaser for valuable consideration both of the real and personal estate comprized in the deed, without notice of the articles; this he pleaded to the bill; and insisted upon it as a sufficient defence, if the articles wore such as were intended to have been the rule and unalterable measure of the settlement made six years after: And that the articles were only a declaration of what their intentions were, according as circumstances then stood; and that this was evident from the title of the articles themselves, viz. Articles agreed on the 6th of March, 1672, in order to a contract to be speedily had between young Simon and Mary, in order to a marriage to be solemnized between them in 1678; which respondent insisted shewed them to be then thought imperfect; and that the settlements being deliberately made, upon further consideration, by consent of the parties to the articles, six years after the articles, and yet before the marriage, ought to be construed the completion and perfection of that contract,

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