Page:The English Reports v1 1900.pdf/956

the respondents Robert and Mary his [274] wife having put in an answer, the respondent Robert thereby confessed, that on the occasion of his marriage, and not before, he assumed and took upon him the name of Barlow, and that his father's name was Bateman; and that he assumed and took upon him the name of Barlow, in order to entitle himself to the said sum of £1000 devised to the respondent Mary by the testator, upon the condition aforesaid.

The cause being at issue, witnesses examined, and publication passed, came on to be heard before the Master of the Rolls, on the 13th of July 1730, when his Honour was pleased to order and decree, that the appellant's bill, as to the demand of the £1000 devised to the respondent Mary, upon the condition aforesaid, should be dismissed; the said Mary having married a person who bore the name of Barlow and this decree was soon after signed and inrolled.

But doubts still subsisting as to the right to this legacy, the respondent Robert, by the name of Robert Barlow, and Mary his wife, in January 1731, exhibited their bill in the Court of Chancery, against the executors and residuary legatees, and against the appellant, praying to be paid both the legacies of £1000 each, devised to the respondent Mary, by the testator's will as aforesaid.

To this bill the appellant by his answer insisted, that the respondent Mary had, by her marriage, forfeited the benefit of the legacy of £1000 conditionally devised to her, and that he, the appellant, on account of the said marriage, became entitled thereto.

The other defendants having put in their answers, and issue being joined, witnesses examined, and publication passed, the cause came on to be heard before the Master of the Rolls on the 22d of July 1734, when his Honour thought proper not to vary his former decree, with respect to the said conditional legacy of £1000 devised to the said Mary as aforesaid, she having intermarried with a person who bore the name of Barlow and therefore, gave the usual directions for the payment of both the legacies. But this decree was not signed or inrolled.

The appellant however appealed from both the decrees; insisting (J. Strange, J. French), that it was the manifest intention of the testator, that a person of his own name should, by marriage with the respondent Mary, have the benefit of the legacy of £1000 conditionally devised to her, or in defualt thereof, that the appellant should have it for by the express words of the will, this legacy was given to the respondent Mary, upon a condition precedent, namely, that she should marry a person of the surname of Barlow; and that on the day of such her marriage with a Barlow, the legacy so devised was to be paid to her. But as she had not performed this express condition, it was submitted, that she could not be entitled to the legacy. That the respondent Robert could not, previous to his marriage, legally assume the surname of Barlow, otherwise than by act of parliament, so as to entitle himself to [275] this legacy; but if his assuming that name in the manner he had done, should be sufficient to entitle him, he might, in the same manner, after receiving the legacy, reassume his own legal name, and thereby wholly frustrate and defeat the testator's intention. It was therefore hoped, that for these reasons, both the decrees, so far as they related to this legacy, would be reversed.

On the other side it was said (J. Willes, T. Pembroke), that as the last decree was not signed and inrolled, no appeal lay from it; and as to that part of the first decree, of which the appellant complained, it was apprehended to be very just and right. Because conditions annexed to legacies, which go in restraint of the freedom of marriage, are considered as void by the civil law, and are not at all favoured in Courts of Equity; and because the intention of the testator, in this case, was fully complied with by the respondent Robert's hearing the name of Barlow, before and at the time of, and ever since his marriage; which was all that was required by the testator's will.

But after hearing counsel on this appeal, it was declared, that the appellant was well entitled to the legacy of £1000 conditionally bequeathed to him by the will: and therefore it was ordered and adjudged, that the decree of the 13th of July 1730 should be reversed; and that it should be referred to one of the Masters of the Court of Chancery, to inquire what part of the testator's personal estate had been laid out by his executors in Bank stock and South-Soa annuity stock, and what proportion thereof, and of the produce thereof, belonged to the appellant, in respect of the said