Dower.

Jointures under

powers.

What de

ductions to

be made in

made; as also agreements to execute such powers, when they have been omitted to be formally executed by the contracting party (a).

The forms of powers enabling husbands to settle jointures on their wives frequently differ in expression. It will, therefore, be useful to consider some of the appointments which have, and which have not been considered as authorised by such powers.

Sometimes the power to jointure is framed in very general terms, as "to make a jointure of lands not executing a exceeding £600 a year." In such cases an appointgeneral power to set- ment of a net yearly sum of that amount would be tle a parti- improper; for under such a power the annuity is liable in the hands of the widow to the payment of all public taxes, repairs, and other usual outgoings to which the lands were liable (b).

cular sum as a jointure.

What deductions

when power

sum.

At other times the power expresses the jointure to be made thus: "not exceeding in the clear yearly is to settle a value £100, or £100 a year for every £1000, for the clear yearly portion which the donee may receive with his wife." This occurred before Lord Hardwicke, in the case of The Earl of Tyrconnel v. The Duke of Ancaster (c), in which his Lordship criticised upon and expounded the word clear as follows: "Where nothing but the word clear is used, it is a right rule to construe it as it would be between buyer and seller of estates. Clear must not mean all outgoings like a rent-charge, as losses by tenants and management, to which a rent-charge is not liable. Then what is the rule to go by? What

Such a joinfree from

ture will be

(a) 1 Atk. 567.

(b) See the case of the Countess of Londonderry v. Wayne, 2 Eden Rep. 170. Ambl. 424, S. C.; and

Hervey v. Hervey, 1 Atk. 561.

(c) 2 Ves. sen. 504.

rents.

Not the

from poor

would be understood between buyer and seller; that Dower. is, all reprises and incumbrances, and all extraordinary Jointures charges, unusual and not agreeable to the course of under the country; and then the land-tax is not to be con- powers. sidered. Although the land-tax is to be considered Incumas a burden, it is contingent in itself, because the brances. value is contingent, and that is a reason why it ought Extraordinary charges. to be taken in, notwithstanding it is not taken in be. tween buyer and seller. Tithe is such as it ought to Tithes. be free from; so of a fee-farm rent, which is an in- Fee-farm cumbrance by private title. Then as to poor-rates and church levies, if in this country the usual course land-tax. of letting estates had been to let them subject to Whether these charges, I should have taken the power in that rates desense, that the jointure should be charged with these pends upon payments; for when a person creates a power, and stances. makes a jointure as a clear jointure in lands, it must be considered as lands of a clear rent according to the course of letting in that country, and not be liable to extraordinary charges by contract." Lord Hardwicke decreed that the widow was intitled to a jointure, not exceeding the clear yearly value of £1000 at the time of the settlements made, viz. clear of incumbrances, and all other charges which, by the course and usage of the country in which the lands were, ought to be borne by the tenant; but subject to the land-tax, and all other outgoings which according to such course of the country ought to be borneby the landlord.

circum

Some of the powers have not left their meaning to What be decyphered under the general terms clear, &c. as charges, &c. a jointure of in the preceding instance, but they have descended a sum of to particulars, as in the case of The Marchioness of money under

a power ex

DOWER.

Jointures under powers.

Blandford v. The Duchess of Marlborough (a). There the power to settle a jointure out of lands was a yearly sum "not exceeding £4000, without any deductions or abatement for any taxes, charges, or impositions, pressing it to imposed or to be imposed, parliamentary or otherLord Hardwicke was of opinion that the for taxes, &c. land-tax was to be deducted under the power, since

be without

deductions

will not be liable to.

Semble, that

the value of

the jointure

wise."

taxes were particularly named; observing that it would be very strange to hold the most public tax in the kingdom should be meant to be excluded, when the words imposed and to be imposed were used in the power. But his Lordship, in reference to this case, said, in that of Tyrconnel v. The Duke of Ancaster (b), that if the word taxes had not been mentioned in the power, he would not under the other words have considered the jointure to be exempt from deduction for taxes, and consequently not from the land-tax. His Lordship decreed in the present case that, under the words of the power, the Marchioness was intitled to such a jointure as, at the time of her husband executing the articles engaging to settle £3000 a year upon her under such power, was of the annual value of £3000, free from all incumbrances, rent-charges, rents-seck, fee-farms, quitrents, annuities, stipends to ministers, pensions and procurations, and also from all parliamentary taxes or impositions as were in being at the time the power was executed, and in particular the land-tax then in existence.

From the two last cases determined by Lord Hardwicke, as also from Pinnell v. Hallet(c) decided

(a) 2 Atk. 542.

(b) 2 Ves. sen. 504. (c) Ambl. 106.

mated and

executed.

by him, and Speake v. Speake (a) determined by Sir DOWER. Francis North, Lord Keeper, it would appear, that Jointures the time for ascertaining the clear yearly value of the under jointure, and its exemption from taxes, &c. is the powers, period when the power is executed; and also that is to be estithe rule would be the same when the words of the settled when power are prospective, directing the exemption from the power is taxes, &c. to be imposed, &c.; so that it might have been considered settled in practice by the authorities before referred to, that when the jointure of lands is not to exceed a particular yearly sum, suppose £4000, after making the above deductions, such yearly value would be irrevocably fixed at the time when the jointure is made; the consequence of which would be, that whether the value of the lands afterwards decreased, as by the imposition of new taxes or otherwise, or whether they increased, no alteration in their value was to be allowed as between the widow and the heir, or the person in remainder; and there is no injustice in this rule, for if the lands increase in value the widow has the benefit of it, and if they diminish in value she ought to bear the loss. But the contrary doctrine would be attended with this inconvenience; these powers would be always executory, fluctuating, and desultory; incapable of being finally executed, and the heir or person in remainder would be in continual hazard of being brought into a Court of Equity by the jointress, to make good a subsequent deficiency in the amount of her jointure, from new impositions or losses which occurred after its settlement. But a decision has been made since the foregoing cases,

(a) 1 Vern. 217.

Dower.

Jointures under powers.

The case of

Londonderry v. Wayne considered.

which is considered to be contrary to them, and therefore to have unsettled what they were previously thought to have determined. The case was the Countess of Londonderry v. Wayne (a); but it may probably be reconciled with them upon fair comparison and consideration.

The father devised his real estates to A his first son for life, remainders over. A power was given to A and the other tenants for life when in possession, to jointure any part of the estates not exceeding the yearly value of £400. By articles before marriage, A covenanted to convey, within six months after the marriage, lands and tenements of inheritance in possession, in two manors, of the annual value of £400 clear of taxes and reprises, upon himself for life, remainder to his intended wife for life, with remainder to the issue male of the marriage. A, in pursuance of his engagement and in execution of his power, conveyed by a deed of settlement after the marriage lands within the two manors, which, with an annual pension of £4 payable out of a rectory, and after making deductions for tenants, boons, &c. brought the jointure within £400 a year. But A also covenanted, that if the premises settled should fall short of that annual value, either on account of £200 which were payable to B, or by lawful eviction or incumbrance, it should be made up out of other lands devised to him by his father and within the power. After A's death the widow made a claim arising upon a deficiency in the value of the settled estates. This claim was made in the year 1754, the settlement having been made in 1733,

(a) Reported in Ambl. 424, and 2 Eden, 170.