Page:The English Reports v1 1900.pdf/948

that Nicholas Lysaght, the father, had devised to the appellant Ann £4000, that she attained her full age before marriage; that the respondent being informed by the appellant Ann, in Dublin, of the appellant Henry's making application to her for marriage, seemed to approve it, and soon after took a voyage to the Isle of Wight, and prevailed on the appellant Ann to go with him, where he knew the appellant Henry then was, or was soon expected; and that when he found the appellant's affections engaged, and that his sister could not with honour break off the match, he refused his consent.—That previous to the marriage. Mr. Oliver, having taken advice on the clause in the will, got an opinion that it was only in terrorem; and that he having sent the appellant Ann a copy thereof, he thereby shewed his consent to the match; and therefore the bill prayed, that the respondent might account for the £4000 and interest, and for the arrears of maintenance.

The respondent, by his answer to this bill, denied that he ever approved of the match, but on the contrary expressly cautioned the appellant Ann against it, and which caution she promised to observe: he also denied that he took a voyage to the Isle of Wight, as insinuated by the bill, but went to London, from whence he carried the appellant Ann to the island at her own intreaty, but denied that he knew or expected he should meet the appellant Henry there. He submitted to account with the appellants for the first £2000 and the arrears of maintenance; but insisted, that the appellant Ann could not be entitled to the additional £2000 by reason of her marrying without such consent as was required by the will.

On the 3d of October 1720 the respondent exhibited a cross bill against the appellants, for discovery of the matters aforesaid, to which they put in their answer, admitting that the appellant Ann did not ask the respondent's consent; that being twice charged by the respondent, once in Dublin, the second time in the Isle of Wight, with receiving the appellant Henry's addresses, she denied the same; that she applied before her marriage to Mr. Oliver [263] and Mr. Taylor for their consent, but did not receive any answer from Oliver; but was afterwards told by him he had wrote her an answer, which, for ought she knew, was a denial of his consent.

Witnesses having been examined in the original cause, and publication passed, the same was heard on the 2d and 21st of June 1731; and, on the 25th of February following, the Lord Chief Baron declared, that this case depended on the words of Nicholas Lysaght's will; that as to £2000 and the maintenance, the court was of opinion, that the appellant Ann was entitled thereto, but not to the additional £2000, for that was not to be paid her, unless she complied with the terms, and performed the conditions prescribed by her father's will, which she had not done; that it appeared she married without the consent of the trustees, or any two of them, and that the respondent did not appear to have been guilty of any fraud in taking the appellant Ann to the Isle of Wight; and therefore the Court ordered, that the appellants should be paid the sum of £2000 only, together with the yearly maintenance provided for the appellant Ann by the will of her father, until her intermarriage with the appellant Henry; and that, from and after her said marriage, the appellants should be paid the legal interest of the said £2000, and as to the additional £2000 their bill was dismissed.

The appellants apprehending this decree to be erroneous, appealed from it; insisting (C. Talbot, D. Ryder), that the condition annexed to the second legacy of £2000 was in restraint of marriage, and that conditions of this nature are, from public considerations, never favoured; but, according to the known rule and practice in Courts of Equity, are held to be in terrorem only, and not to defeat a legacy given out of a personal estate, unless it is expressly given over to a third person upon a breach of the condition, but which, in the present case, it was not. That in the case of legacies out of personal estates, there has been no distinction allowed between conditions precedent and subsequent, such distinction being unknown to the civil law, by which legacies, which are properly cognizable in the Spiritual Court, are to be determined. That in this case it was apprehended the condition was not intended to continue, or to suspend the legacy, longer than till the daughter attained her age of twenty-one, which appeared from the manner of penning the legacy; the testator gives her £2000 to be paid her on the day of her marriage, or age of twenty-one years, and then goes on immediately in the same sentence, and if she marries with the consent therein mentioned, then £2000 more; so that this was nothing more than annexing a condition