Page:The English Reports v1 1900.pdf/773

Previous to the marriage of the appellant with Lenox Smith, widow, who was seised and possessed of a considerable real and personal estate, certain indentures of lease and release were executed, bearing date the 17th and 18th of March 1698, whereby the real estate, of the value of £1000 per anu. was settled to the use of the wife, for her natural life; remainder to the issue of the intended marriage; remainder to the survivor of the husband and wife in fee. And by this deed Sir Lyon covenanted,

that the said Lenox should convert to her own use, all or any of the rents and profits of the said premises, after the intermarriage, during her life, at her pleasure; and that he would permit and suffer her, after the marriage, to take and dispose of the rents and profits of her copyhold estate, and all or any part of her personal estate, to such uses as to her should seem meet, without giving any account thereof to him and that he would not, during her life, intermeddle therewith, without her consent.

In April 1699, Cuthbert Harrison, esq. the father of Dame Lenox, died intestate; whereupon she obtained letters of administration, and possessed his personal estate.

On the 11th of July 1706, Dame Lenox, in pursuance of the power reserved to her by the above settlement, executed a deed poll, whereby she gave all her personal estate to the respondent; who thereupon executed a deed, declaring that the said deed of gift was made to her in trust only, and for the benefit of such person and persons, and that the said personal estate should be distributed in such manner and proportion, as Dame Lenox, by any writing under her hand, attested by two or more credible witnesses, should appoint. Accordingly, Dame Lenox, by another deed of the same date, and attested by three credible witnesses, directed and appointed a distribution of her personal estate to be made to several of her friends and acquaintance, in manner therein particularly mentioned; she then gave certain pecuniary legacies to three several charities, and directed that if her personal estate should fall short to make up the charities, proportionable abatements should be made in them; and if there should happen to be any surplusage, the same should be applied in augmentation of the charities.

[8] In a few days afterwards Dame Lenox died; whereupon Sir Lyon took out administration to her, and also administration de bonis non, of the said Cuthbert Harrison, her father; and on the 10th of October 1706, he exhibited his bill in Chancery against the respondent, for an account of Dame Lenox's personal estate come to her hands and the respondent filed a cross bill, to have the trusts of Dame Lenox's deed of appointment established, and carried into execution.

Both these causes were heard together, before the Lord Chancellor Cowper, on the 9th of February 1707, when the Court, inter alia, declared,

that the personal estate of the said Dame Lenox, which was her own at the time of her intermarriage with Sir Lyon, and the produce thereof, was and ought to be deemed and taken as part of her separate personal estate, at her own disposal; but that the personal estate of Mr. Cuthbert Harrison, her late father, which accrued to her after her marriage with Sir Lyon, ought not to be taken as part of her separate personal estate, or within her disposal, but did belong to Sir Lyon; and, in case she had disposed of her said father's personal estate, so accruing to her after her said marriage, the