1811.

DASHWOOD

T.

ΡΕΥΤΟΝ.

Intent by Recital as Devise: therefore, as the Daughter was an Infant, he would without making any Precedent decree a Third of the Rents to the Platiff; and leave the Infant to shew Cause, when of Age.

With all Deference to that great Judge I must say, that is not the Way, in which the Court should express its Opinion: the Authority is weakened by such Expressions; and it was difficult to make the Decree, that appears to have been made, without more Hazard of forming a Precedent than the Lord Chancellor seems to apprehend. It is obvious however, that though the Court had a strong Inclination, that the Widow should have this Provision, (and a Case of greater Hardship could not be presented) his Lordship does not seem to kold out his Decision as a very high Authority. The Decree certainly declares, that it appeared to have been the Opinion and Intention of the Plaintiff's Husband by the Expressions of his Will, that she should have her Dower of such Part of the Trust Estates, to which he would have been entitled in Fee, in case he lived to the Age of Twenty-three; and that the Defendants ought not to be permitted to take the Benefit of the Devises and Bequests to them and at the same Time frustrate the Testator's Intention with regard to Dower; and an Account was decreed accordingly; a Day being given, as it must of Necessity, to the Infant to shew Cause. As against the Infant therefore this Decree cannot be considered as establishing a Case of Election upon the Declaration of Intention by Recital in the Will; and the Person, entitled next in Remainder, who was adult, appears to have submitted. This is a correct Account of the Case of Tilly v. Tilly.

There was in this Case considerable Controversy upon the Point, whether James Dashwood did, or did not, know the Effect of Sir Thomas Peyton's Will; and, as

clearly

clearly Henry Peyton, the Tenant for Life, was not acquainted with it, I may fairly assume James Dashwood's Ignorance; and that there might be a common Mistake. After the Death of Sir Henry Peyton, upon whose Will this Question arises, the present Sir Henry Peyton became entitled as Tenant in Tail of the Manor and Right of Presentation, and unquestionably under no legal Title to present James Dashwood: but Sir Henry, the Testator, having a Conception, that James Dashwood had some Interest, and being determined to give an Interest to his younger Son Algernon, made Provision by his Will with regard to the Suffolk Estate; which led to the Advice, taken as to the Act to be done, to secure to Sir Henry Peyton the Benefit of the Suffolk Estate; securing also the Presentation to Algernon; and the Result was an Opinion, upon Consideration of both Wills, that Sir Henry Peyton was under no Obligation to present James Dashwood; that, whatever Act might be necessary with regard to Algernon, to make good Sir Henry Peyton's Title to the Suffolk Estate, James Dashwood had no Right to call upon him to do any thing; and upon the Deed his Determination is clear to give the Living to James Dashwood, as Matter, not of Right, but of Favor; on account of their Connection; and with the farther View of securing to himself the Suffolk Estate by securing to Algernon the Living, when, having attained the Age of Twenty-four, he should be capable of taking it. Sir Henry Peyton therefore, executing the Demise in Trust to present James Dashwood, cannot be represented as having made an Election to take, under the Will of Sir Thomas Peyton; and if the Will of the late Sir Henry Peyton raised a Case of Election, and the Construction put upon that Will is right, an Instrument, that does not execute the Intention, attributed to that Will, cannot be considered an Election to take under

1811.

DASHWOOD

v.

ΡΑΥΤΟΝ.

it.

1811.

DASHWOOD

0.

PEYTON.

it. The Election therefore, if there is a Case for it, is still open.

From the Correspondence Lord Rous appears to have conceived, that by the Terms of these Wills James Dashwood, if presented, must give a Bond of Resignation; and I will presume, that he took the Presentation under a Belief on his Part, (to state it as high as I can), that he was to give a Bond. The Mistake was not unnatural ; and I do not believe, he had a Notion at the Time, that he had a Right. If he had, there is enough of Mistake and Surprize to afford a Ground for Relief: but there is no Reason to conclude, that Sir Henry Peyton meant to give him a Right: on the contrary Sir Henry Peyton acted on the Supposition, that there was no such Right.

Under these Circumstances the Question naturally arose as to the Effect of a Bond of Resignation, general, or in Favor of a particular Person; and I do not see, how I could possibly interpose to relieve merely on the Ground, that such Bond was given. Whether he understood, or fancied, that he had the Right without giving a Bond, or not, he has given it; and Two Principles oppose his Claim to be relieved against it. If, as the Court of King's Bench held, a Bond to resign in Favor of a particular Person, is good, as not being precisely the same as that, which in the Case of The Bishop of London v. Fytche (a) was held bad in the House of Lords, on that Ground there can be no Relief against it: if it falls within the Principle, on which the Bond was in that Case determined to be bad, the Plaintiff claims Relief against an Act, with reference to which this Court would not stir: not, as in the Case of Marriage-Brocage, bad upon Grounds of Policy, and therefore admitting Relief; but

(a) 1 Bro. C. C. 96. Cunningham's Law of Simony.

bad,

bad, as being a corrupt Transaction: the Party therefore not coming with clean Hands, entitling him to Relief. Upon that Question I give no Opinion; as, if it is to be decided, the Opinion of a Court of Law must be had upon it; and therefore there is no Reason to grant an Injunction against an Action on the Bond.

This Bill however does not state that Case; contending that the Plaintiff under the Will of Sir Thomas Peyton has no Title; nor any legal Title under that of Sir Henry Peyton; but that he has under the latter Will an equitable Title; (and, as I must suppose him to say, to this Presentation); a Case of Election being very different from a Title to the Thing itself. Having this equitable Title to the Presentation under the Effect of the whole Transaction, in the Course of which this Bond was given, he proposes a Case of Surprise in this Respect; that the Parties intended to give him that, to which they understood him to be entitled: a Presentation according to his Right; that he proposed so to accept; that they have not given, and he has not accepted, a Presentation according to his Right; that all were involved in one common Mistake; and the Court must regard the Presentation as made according to his Right: viz. subject to no Condition of Resignation; that it is therefore against Conscience to sue upon the Bond at Law; and consequently the Injunction should be granted.

The Proposition, that the Presentation was made under a common Mistake, requires the Plaintiff to establish, that Sir Henry Peyton meant to give some Title, which he had under the Will of the late Sir Henry; which it is impossible to make out. The present Sir Henry's View of it was, that, he did not, whatever Wish he might have had in James Dashwood's Favor, conceive him to be entitled to the Presentation.

The

1811.

DASHWOOD

D.

PEYTON.

1811.

DASHWOOD

V.

PEYTON.

The Plaintiff must then take it in another Point of View; and contend, that he is entitled to the Presentation, free from all Condition, upon the legal and equitable Effect of the Two Wills, taken together; and therefore he had the Title, subject to no Condition, that could be enforced by Suit; whether intended by Sir Henry, or not; and the Effect of their Mistake is, that the Plaintiff has a Right to the Living, discharged from the Bond. In all the Cases stated of Devises by Implication, the Party, upon whose Will the Question arose, had the Estate to give by the Effect of his own Will. That certainly makes some Difference. A Devise to the Heir at Law of the Devisor after the Death of his Wife raises a necessary Implication, that the Wife shall take for her Life; as the Estate must go to some One in the Interval: but from the Devise by one Man of another Man's Estate after the Death of the Devisor's Wife there is no Implication in her Favor. Admitting however, that upon a similar Construction of the Will, as furnishing Implication, a Case of Election may be raised, the Question is, whether Sir Henry did mean to raise that Case; and, if he did, whether the Cousequence, taking the whole Will together, is, Estate through that the Plaintiff can insist upon having this Living; or the Medium of must be satisfied in Equity by the Benefit, which results Election.

Devise to the Heir after the Death of the Devisor's Wife: a necessary Implication, that the Wife shall take for Life: but no Implica

tion for her upon such a Devise of another Man's

from the Application of the Doctrine of Election; and with regard to both these Considerations this Will appears extremely peculiar. The Expression of his Intention as to the Living in Favor of Algernon, whose Title to take it he seems to think depending entirely upon his Expression of Intention, is by the Alternative as to the Suffolk Estate: "if you give the Living to Algernon, you "shall have the Suffolk Estate: if not, he shall have it." Conceiving, that the Plaintiff was entitled to this Living, not in consequence of his (the Testator's) Expression of Intention, he does not by conditional Expressions seek to enforce Compliance with the Will of another Person.