Vice-Chancellor's Court, ...
If-s flONoun heard the arguments on demurrers this mrnominc. Mr. SAIIEREstated the r.ature ot this case, and thepleadings. A Air. Green, whose daughter was about to be married to Mr. Henry Rice, entered intio an ngreement, by which he contracted to settle, either by a conveyance in his life-time, or by his lst will, property to the amoutnt of ll,0L as a marriage-wortion for his daughter. The agreement contained stipulations tlh:t the 3I 0101. should be settled on his daughter for her lifc, and after her death to Mlr. Rice for his life, and after his death to the children of the marriage on their attaining the age of' 21 years, remainder to the issuer of such chldreR as should be living at the decease of their respective pa- rents under the age of twenty-one, with cross-remainders over, remaiAder to the right heirs of Alr. Greeii. The sumaf3,0001. was not settled by Mr. Green in his life-time, but the interest of it was duly paid by hbim. to Air. Rice and his wife. .Mr. Green is now dead, and baas lef a will, in which, among other things, hte devised an estate therein-mentioned to trustees to the use of his daughter, Slrs. Rice, during her life, Sree from the control of her husband. and with a proviso that she should not alienate that cestate remainder to her husband during his life, upon conditions that he should, oat oF the profits of the estate, maintain and educate the children of his marriage; remainder to the same children on their attaining the age of 26 years; remainder to their isue living at thelatter period, vith cross remainder over ;and remainder to the testator'e right heirs. Thifi devise, the learned counsel argued, was intended by thie testator, end must be construed by the Court to be a satisfaction amd performance of the covenant contained in tbe agreeument. MIr. Rice, hinwever, had been advised that he had right to compel a specific performance of the asgreement, and had brought an action against the executors- They, for the purpose of defending themselves against his claim, tiled a bill lath is court to restrain iMr. Rice firom proceeding In hifL action. To that bill Mr. Rice demurred; and this demurrer was Rtow for the decision of the Court. Alr. SUODEN appeared in support of the demurrer. He contended that the devise in the testator's will was neither performance nor ta- tisfaction of the covenant. The devise imposed upon the persons taking under it so many conditions whichi were not contained in the agreement, and the benefit to be conferred on Mr. Rice and his wife, on tlte cliildren of the marringe, and on the issue ot those children, was so much diminished and curtailed, that tlle Court could not, consistertly with former decisions, compel the defendant, Mlr. Rice, to accept it. The Court had held, if the dircumnstances of difference between a settlement covenanted for, and the devise in a. will were only slight, that they should not then prevent the latter being construed as a nerformance or a satisfaction; but here the circumstances could noi be called sight. The life-estate of the wife was restrictid by a proviso for non-atienation; that of the busband was butdened by a condition that he should rnaintain and educate the children out of the profits, which would at once place them under the dominion of the Court; the estates of the children were limited to the age of 25 years, instead of 21 and tbeir issue would not be en- titled to the benefit of the remainders, if the parents happened to die underthatage. TheCourt, todecree that therewasaperfrormatee, must fiud that the thingitself covenanted for had been done by some means or other, and they woald not, perhaps, be very strict as to the man- ner in which it had been done. In this case the thing inteRded to be c-arried into effect by the devise was wholly different fom that stipu-- lated for by the agreement It could not be satisfaction, for tbat necessarily implied an intention on the part of the testator that his bequest shoauld satisfy his covenant; and no such intention was apparent here. The learned counsel supported his argumernt ly the Cases of i1 Allatthews and Matthews," 2d Vesey, se. ; " Faulkner and Faulkner ;" and " Haynes and Alycoe," Browne's Reports. Ar. BARtBER was heard in reply. The VICE-CHANCELr.OR said, that there were many eases in the- books besides those which had been quoted respecting tbe circuni- stance of diffrererce which the Court would call slight. lie shoald take some time to look up these cases, and would give his judgment at an early opportunity. In the meaa time he mnst say that tbe dif- ference between the devise and the covenant here seemed tvs him to. be very important. WTYNE V. CALLANDElt AXD OTHERS. The plaintiff's bill in this cause stated that he had lost large sums, amounting in the whole to 6,0001. to thethree defendants Callander, Charretie, and Fleming, at whist,which was played afterainncrat the houseofone ofthe defendants. In liquid:ationof his losses.heaccepted bilIsito the armount before-snentioned; and this uitwvasbrought to re- strain the holders of the bills from proceeding on them on the Iround that the consideration, being a ganzblih g transaction, was illegal. One of the defendants had demurred to the biUl for multi- fariouanca,sthe alleged losses having been to the defendantsseparately, and not jointly, as was assumed by the form in which the bill wan drawn. Air. HORNE was for the plaintiff, and 3Ir. EEALB for-the de- fendant; but the VICE-CHASeCELLOn, witlhout hearing any argu- ment, decided that upon the face of the bill, the demurre. was agood .n1- P__ VICE-CHANCELLORW' VOlIIRi' XInsns,+ onr WEALD V. RrCE.