Page:The English Reports v1 1900.pdf/639

Issue being joined in the cause, several witnesses were examined on both sides: and those for the appellant gave evidence in support of the appellant's bill, to the effect already stated.

On the 1st and 4th of July 1763, the cause was heard before the Lord Chancellor Northington, when his Lordship took time to consider thereof; and on the 11th of December 1764, his Lordship was pleased to decree, that the appellant's bill should stand dismissed, without costs, as to the personal undertaking of the Earl of Powis to pay the two annuities of £200 a-year each; but without prejudice to the appellant's claim of £200 a-year, under the will of her father, out of his personal estate.

From this decree the present appeal was brought, and on the appellant's behalf it was said (C. Yorke, W. de Grey, C. Sayer), that the late Marquis of Powis, her father, devised his estate both real and personal to trustees for payment of his debts, legacies, and annuities, and gave to them an annuity of £200 in trust to pay the same to the appellant only during her life, to make some suitable provision to support and keep her from wanting necessaries, and not for payment of her [363] debts which she had unhappily contracted; and the testator having left a large real and personal estate, which the respondent the Earl admitted himself to be in the enjoyment of, the same were assets of the testator, out of which the appellant's annuity of £200 ought to be paid from his death during her life; because this annuity was a charge upon his real estates, prior to the Earl's title, which was only derived to him under the will of the Marquis the son, who took the same under the will of his father, subject to this annuity. The son died during the litigation of the father's will, and before he had an opportunity of fulfilling the same. The respondent, the Earl, obtained probate of the will, as assignee of Baker's legacy of £1000 without notice being given to the appellant, who had a preferable right to such probate, being his eldest daughter, and devisee of the annuity of £200; by this means he had possessed himself of the personal estate of the appellant's father, to the amount of £13,000 and upwards, after payment of all the debts and legacies; and thereby held the Powis estate of £10,000 per ann. The Earl ought therefore in equity, to fulfil the testator's intentions in favour of the appellant, the only survivor of that noble family, by payment of the small provision of £200 a-year, out of the fortune which he enjoyed through the bounty of the appellant's brother, with whom it was admitted he had not even a personal acquaintance. That the Earl having prevailed on the appellant to refuse the place of Dame d'Honneure to the Queen of France, under a promise to pay her the annuity of £200 left by her father, with an additional one of the like value, he ought in law and conscience to perform his part of this agreement; for as the Earl made such offer, in consequence of which the appellant was induced to act to her own detriment, she became a fair purchaser of the annuities in question, whether the Earl received any benefit or not. That the Earl having a disputable title to the Powis estate, and holding it only under the will of the last Marquis, proposed to marry Miss Herbert, niece to the appellant, and heir at law to both Marquises, thereby to unite the two titles to the estates; but not being able to effect his intention without the consent of Lady Henrietta Beard the mother, and of the appellant, and Lady Arundell and Lady Charlotte Williams, who were the aunts and nearest relations of Miss Herbert, then an infant, he applied to the appellant to consent that Lady Herbert of Cherbury, a relation of his own, might be appointed her guardian, with an intent that she, in that capacity, might consent to the marriage; and to induce the appellant to give her consent, his Lordship promised upon his honour, not only to pay her the arrears and future payments of the annuity given her by her father's will, but to give her a further annuity of £200 for her life. Upon this promise the appellant consented to the appointment of Lady Herbert as guardian, and thereupon the marriage was had; by which an end was put to all litigation on the part of Miss Herbert, as to the validity of the last Marquis's will; and such consent being the compromise of an intended law-suit, was a good consideration to support a promise in [364] law, whereof the promisee might claim the benefit either by an action at law, or a suit in equity, as the nature of the case required. That upon the death of Mr. Goostrey, the surviving executor of the Marquis, the son in 1757, the right of administration devolved on the appellant, as his only surviving sister and