Page:The English Reports v1 1900.pdf/573

But the respondents have thought fit to make three objections to this appeal: I. That several parts of the testator's personal estate, which they have respectively received under the decree, have been since settled upon the respective marriages of the testator's daughters; and that part of what the widow, in her life-time, gave to the respondent Sir John Frederick out of her share, which was allotted to her under the decree, was settled upon his marriage; and that it would be a great hardship to break into these settlements. II. That Sir Thomas Frederick, the appellant's late father, had done many acts whereby he testified his consent to, and approbation of the decree. And, III. That the appellant himself, since he had attained the age of twenty-two, had signified his consent to the decree, and the reports and proceedings subsequent thereto, by his moving the Court of Chancery for an order to have his share assigned to him.

In answer to the first objection, it was said, that nothing done subsequent to the decree during the appellant's infancy, by any agreements made between the respondents, could alter or vary the justice of the case from what it was when the decree was pronounced; but that with regard to the appellant, the merits of the case must be considered as they appeared to be at the hearing of the cause: and the rather, as all the respondents very well knew, that the decree under which they had their distribution, contrary to the testator's will, was made against the appellant, then an infant; and that though no day was given him to shew cause against it, after he should come of age, yet that he would nevertheless have the liberty of an appeal against it, upon which that decree might be reversed, if it should not appear to be just and right. But however, the appellant voluntarily offered that such parts of the testator's estate, distributed under the decree, as upon the respective marriages of the respondents his daughters, should [265] appear to have been really and bona fide settled to the use of their respective husbands and children, and such part thereof as was given by Leonora his widow, in her life-time, to the respondent Sir John Frederick, or distributed to him under the decree, and should appear to have been really and bona fide settled on his marriage for the benefit of his wife and children, should remain and be enjoyed according to such respective settlements; provided, that this offer should be without prejudice to the appellant, in relation to the rest of the estate in question. By this concession of the appellant, a considerable part of the testator's estate would remain to the respondents his daughters; and the respondent Sir John would retain thereout £1000 per ann. contrary to the testator's will, besides above £1300 per ann. which he enjoyed under the testator's marriage-settlement. So far was the appellant from being desirous of breaking through any of those settlements which had been respectively made on good and valuable considerations, although he considered it as parting with so much of his own estate. As to the second objection it was said, that as to any acts done by the appellant's late father, which might imply his consent to, or approbation of the decree, nothing could thence be inferred to prejudice the right of the appellant to any part of the estate given him by the will of the testator his grandfather. And as to the third objection it was insisted, that the appellant's moving the Court of Chancery for such part of his grandfather's estate as remained in the hands of his executor, could not be construed into any approbation of the decree; because so much was certainly due to the appellant in all events, and might be received by him without prejudice to his controverting the decree as to the residue. Besides, the appellant was but lately returned from his travels abroad, and was unacquainted with the circumstances of the case; but afterwards apprehending himself aggrieved by the decree, the order made upon that motion had never been carried into execution.

On behalf of the respondents it was urged, (P. Yorke, C. Talbot) that the settlements made previous to the application to the Court of Aldermen, were not in their nature, nor were intended to be final, but subject to their approbation, and to be varied and altered as they thought proper. That they were considered by all parties only as proposals, and especially by Sir John Frederick and his son, and therefore Sir John offered to make up and enlarge the same to the satisfaction of the Court; and this was the stronger, because the relations had no power to dispose either of the person or fortune of the orphan, without the consent of the Court. That these settlements, considered by themselves alone, would appear to