Page:The English Reports v1 1900.pdf/850

In 1713, the appellant Robert was indebted to Mr. Penne in £50, and being then engaged in a Chancery suit in relation to the lands and tenements after mentioned, and wanting money to supply that and other occasions of his family, Mr. Penne very readily undertook to furnish the same; and was desirous, that not only what he had so advanced, or might advance to or for the use of the appellant Robert, should at least from and after his the said Penne's decease, remain for the separate use of the appellant Elizabeth, or in case of her death, for the benefit of her children; but also, that several lands and tenements in the counties of Durham and Middlesex, and in the city of London, being part leasehold and part freehold of inheritance, which the appellant Robert was entitled to, should, in the first place, be made a security for the monies so lent or to be lent, and subject thereto, should be settled so as that the appellant Elizabeth and her children might have the benefit of them. Accordingly the appellant Robert, for these considerations, was prevailed upon to execute to Mr. Penne a bond in the penalty of £1000, bearing date the 2d of January 1713, which Mr. Penne himself brought ready prepared, and to which there was a condition under written, that if the appellant Robert, his heirs, executors, or administrators, should pay to Mr. Penne, his executors, administrators, or assigns, not only the said £50, but all such further sums as he, his executors or administrators, should pay to or for the appellant Robert, on requesting the same; and should in the mean time, and on reasonable notice, at the charge of Mr. Penne, convey to him, his executors and administrators, all the appellant Robert's right and title to the said lands and tenements, for securing the payment of the monies so due, or to be due to Penne, his executors or admi-[124]-nistrators, within six months after the date of such conveyance; and should also on like notice, and at the like charge, by such conveyance, or some other deed, at the election of Penne, his executors or administrators, convey to him and them all his the appellant Robert's right and title in the said premises, after payment of the said monies, upon special trust and confidence that they should pay to, or suffer to be received by the appellant Robert and his assigns, the rents and profits of the said premises to his own use for his life; and after his death, if the appellant Elizabeth survived him, should pay to or suffer to be received by her, the rents and profits of the premises for her life, to her own use; and after both their deaths, to the use of Robert their son, and the issue of his body; and for want thereof, to the right heirs, executors, administrators, and assigns of the appellant Robert for ever, for such terms, estate, and interest in the premises respectively, as should be therein then to come; then the said bond was to be void.

Some short time before the execution of this bond, the appellant Robert's affairs calling him into Yorkshire, and the appellant Elizabeth being in want of money, acquainted Mr. Penne therewith, who thereupon supplied her with several sums: and Mr. Penne, soon after the bond was executed, being mindful of his said agreement, did of his own accord deliver the said bond to the appellant Elizabeth to keep for her own use, and the same remained for a considerable time in her custody: but Mr. Penne afterwards telling the appellant Elizabeth, he was afraid if her husband should get the bond into his hands she would be never the better for it, and desiring for that reason to have it back, the appellant Elizabeth returned the same to him; and thereupon Mr. Penne used very particular expressions of care and kindness for the appellant Elizabeth and her children, and told 'her, that he would soon secure to her the monies mentioned in the said bond, in a better manner than by the bare custody thereof.

Accordingly, soon afterwards Mr. Penne caused a deed-poll to be prepared, bearing date the 20th of April 1714, which he duly executed; and after taking notice therein of the aforesaid bond and condition, he, in consideration of the natural love and affection which he had for his niece the appellant Elizabeth, and to the intent that the said bond, and all benefit and advantage to be had thereby, might, after his decease, be and remain intirely and wholly to and for the use and benefit of the appellant Elizabeth, and the issue of her body by the appellant Robert, did give and grant to the appellant Elizabeth, all and every sum and sums of money which should be due and owing to the said Penne, his executors, administrators, and assigns, at the time of his death, or at any time afterwards, on the said bond, and all benefit and profit thereof, to and for her own separate use and maintenance; and in case she should not be living at the death of the said Penne, then he did give and