Page:The English Reports v1 1900.pdf/574

be defective in value with regard to the portion, as well as in not providing for younger children; and to be in no degree equal to a settlement, which was proved in the cause to have been required by the Court of Aldermen, and to have been accordingly made upon the marriage of Mr. Leukner with Jane, one of Leonora's sisters, and whose portion was no more than equal to her's; and the estate which was now come to the respondent Sir John under these settle-[266]-ments, was not worth near so much as the fortune which his father acknowledged to have received with Sir John's mother, viz. £25,000. It was reasonable, therefore, that the Court of Aldermen should insist upon the promise to take the freedom, as well to secure a provision for the younger children, as to increase that which was proposed to be made by the settlement for the wife and the eldest son of the marriage, and the licence to marry was granted upon that express promise. That this promise was evidently part of the marriage-agreement, because it was made in open court, upon application for licence to marry, and was entered in the same act of court with such licence and the direction of the court touching the settlement, which altogether constituted one intire and complete agreement; and Thomas Frederick, by desiring afterwards at the same court to be admitted to his freedom, further confirmed his first engagement: that this contract was transacted in the most solemn manner, and made upon the most meritorious consideration, and being made upon the marriage of an orphan, ought to receive the most liberal construction in favour of her and her children; besides, it was just and reasonable in itself, and being a promise made in a Court of Record, was stronger than if a covenant for that purpose had been inserted in the deeds. That all agreements made upon a valuable consideration, are, in equity, considered as performed at the time, when, according to the tenor of them, they ought to have been performed, and are deemed to have the same consequences; because the party contracting, or any claiming voluntarily under him, ought not to profit by his own neglect or default, nor should those for whose benefit such contract was made be sufferers by that default. That the appellant's attempt to overturn all these solemn proceedings, was the more extraordinary, when it was considered, that in lieu of the present reasonable division of the estate, under which the appellant himself had so very large a share, he would establish his grandfather's will, which bore upon the face of it so great and unnatural an inequality: and his directing that even the small legacies thereby given to his eldest son and daughters, should be upon express condition of their not contesting his will either in law or equity, and giving releases of all claims upon his estate, was the more severe, because they could have no claims upon any other account than this, which they now so justly insisted upon, and which was allowed them by the decree, and shewed the testator's consciousness that there was a foundation for such claim. That as the decree was just in itself, and agreeable to the rules of equity, so it was apprehended to have received confirmation from the acquiescence of all parties for near ten years, and also from the assent of the appellant himself, upon his applying to the court, after attaining his age of twenty-two, for his share of the estate under the decree. But if it should now be reversed, the respondents might be ordered to perform that which, by reason of their marriage-settlements, was become impossible, and which would throw themselves and their families into the utmost confusion. If, on the contrary, the decree should be affirmed, every branch of the [267] family would remain in the same condition they had been in for near ten years past, the several marriage-settlements would be in peace, and all persons claiming under them would enjoy the benefits and provisions thereby stipulated. As to the objection that the appellant was an infant at the time of pronouncing the decree, and yet had no day given him to shew cause against it on his coming of age, it was said to be an objection against the constant and uniform practice of the Court; for all decrees relating to personal estates and matters of account, where it is necessary to make infants parties, are always absolute, without allowing the infant a day to shew cause; and it would introduce the greatest confusion to have this method broke into. But this objection was still more extraordinary in the present case, where the appellant, long after attaining his age of twenty-one, had applied for and obtained an order to carry the decree into execution. It was therefore hoped that the decree would be affirmed, and the appeal dismissed with costs.