CORRIGENDA.

Page 229. line 5. for Cruise Dig. 445. read 441. same line, see 1 Sanders' Uses.

line 7. for 618. read 686.

230. line 6. from bottom, for 2 & 9. read 289.
233. line 5. for H. 13. C. read New Rep.
236. line 10. for rule (p. 129.) read 432.
237. line 14. from bottom, for 117. read 517.
241. for Exchequer Chamber read King's Bench.
278. line 11. from bottom, for Dyer, 288. read 283.
line 6. from bottom, for Q. read K. R.

281. line 15. from bottom, for 450. read 65.
282. line 5. for 122. read 121.

283. line 1. for 646. read 65.

285. line 14. from bottom, for 153. read 113.

300. line 1. for 24 Hen. read 28 Hen.
307. line 9. for 793. read 758.

REPORTS OF CASES

HEARD IN THE

HOUSE OF LORDS,

UPON APPEALS AND WRITS OF ERROR,

And decided during the Session 1833,

3d & 4th W. IV.

1833.

LOGAN

2.

WIENHOLT.

D., upon the marriage of S., his niece, executed a bond, with a penalty, to N. and G. The condition of the bond recited the intended marriage, and that, in consideration thereof, and of natural love and affection to his niece, he had agreed to make some provision for her and the issue of the marriage; and that, " in case S., or any issue of the marriage, "should survive D., or he should die unmarried, that he, "his heirs, &c. should pay to N. and G., their executors, " &c. 2000l. &c. But if D. should die leaving a wife or "issue living, &c., then the sum of 1000l. &c., upon trust to "lay out the 2000l. or 1000l. &c. in public or government "securities, upon trust for the separate use of S. for life, and "at her decease, for the issue of the marriage living, &c. " &c.; and also, if S., or any issue of the marriage, should be "living at the death of D., he being unmarried and without VOL. VII.

B

1833.

LOGAN

บ. WIENHOLT.

issue, that, exclusive of the before-mentioned provision, "he should, either by his last will and testament give and "bequeath, or, by some ways or means give or leave unto, or in trust for S. or the issue of the marriage, so much in money or valuable effects as he should by such will give or bequeath to any one of his next of kin or nearest rela❝tions, or any other person, or persons; or, if he should "make no such bequest, &c., or if such bequest should fall "short of the greatest bequest in such will to any one of his "next of kin, &c. ; then, if the executors, &c. of D. should pay to N. and G. &c., or make good any deficiency that "the same should fall short of, &c., in trust for S. and the "issue, &c. in manner as before mentioned respecting the "2000l. or 1000l. &c.; then the obligation to be void, "otherwise to remain in force."

The marriage took effect, and there were issue who attained twenty-one. S. and her husband died in the lifetime of D., who, after the date of the bond, had a natural daughter, S. B., who intermarried with D. B., the nephew of D. S. died in 1800. In April, 1804, D. employed solicitors to state cases, and took opinions as to the mode in which he might dispose of his property, so as not to be affected by the provisions of the

bond.

In May, 1804, D. conveyed freehold lands, &c., at H. &c., in trust for himself for life; remainder in trust for S. B. for her separate use; remainder to D. B. for life; remainder to such uses as the survivor shall appoint; remainder, in default of appointment, to his own right heirs. By another indenture of the same date, D. conveyed estates at C. &c. in trust for · himself for life, with contingent remainders successively to two of the sons of D. B.; remainder to D. B. in fee. In 1814, he executed two other conveyances, in both of which, reserving estates to himself for life, he limited remainders in the lands conveyed in trust for the sons, with the ultimate remainders in fee to D. B. All these lands were purchased by D. after the date of the bond by application and proportionate diminution of his personal estate, and the conveyances were made without consideration.

In 1811, D. assigned to D. B. a bond for 16,000. The assignment was made without consideration, and D. continued to receive the interest for life under the security of a bond from D. B. In 1817, he assigned a mortgage for 2000l. in trust for himself for life, and at his death for the benefit of S. B. In February, 1817, he transferred 20,000l. navy five per cents. and 35,000l. three per cent. consols to D. B. and

S. his wife under an agreement or with the understanding
that he was to receive the dividends upon the stock trans-
ferred during his life.

By his will, dated in 1814, D., after giving to the children of
S. an option to take 60007. in satisfaction of the bond and va-
rious legacies to D. B. and other persons, devised and be-
queathed all the residue of his estate and effects to D. B.
D. died in March, 1817.

Held, that the condition of the bond was to be construed in
equity as an agreement made upon consideration of mar-
riage, which might extend beyond the penalty; that the gifts
of the lands purchased by D. with personal estate after the
date of the bond, and conveyed to D. B. in reversion, subject
to a life-interest reserved to D., and also the gifts of the
bond for 16,000l., and all other beneficial interests given to
D. B., were to be considered as testamentary within the
terms of the agreement; and that, as to the gifts of the stock
of 20,000l. and 35,000l. to D. B. and S. his wife, and other
partial or contingent interests, the value of the interest of
D. B. in such funds was to be estimated as they stood at the
death of D., with a view to ascertain what amonnt of benefit
D. B. took under the will and testamentary gifts of D., in
order to estimate the proportion to which the parties claiming
under the bond were entitled; and that assuming D. B. to take
the largest legacy or interest under the will or gifts held to
be testamentary, that the parties claiming under the bond
should receive out of the residue given by the will of D. a
sum equal to such legacy or gifts; and if the residue should
be insufficient, then that the legacies and gifts to D. B. and
S. should abate in proportion, so as to effect such equality;
and after such application of the general residue, if suffi-
cient, &c., that the clear residue should be divided between
D. and the parties claiming under the bond.

IN the year 1772, upon a marriage intended to be

had between John Wienholt and Sarah Jopson,
Daniel Birkett the elder, who was the uncle of
Sarah Jopson, executed a bond to T. Norman and J.
Graves, of which the condition was as follows:-

"Whereas a marriage is agreed upon and in"tended with all convenient speed to be solemnized

1833.

LOGAN

2. WIENHOLI.