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![handle is hein.slavery/ssactsengr0638 and id is 1 raw text is: TURTON V. BENSON
a right against the heir at law for satisfaction of their debts, out of the testator's real
estate. Reg. Lib. 1718, B. fol. 109.
Case 664.-TURTON versus BENSON. RICHARDSON & Al' versus BENSON. [1718.]
[Referred to, Mangles v. Dixon, 1852, 3 H. L. C. 736; Watson v. Mid-Wales Ry. Co.,
1867, L. R. 2 C. P. 596.]
At the Rolls.
[1] Eq. Ca. Ab. 88, (E.) pl. 2; Pre. Ch. 522; [1 P. Wms. 496] S. C.
On a treaty of marriage between A. and the daughter of B. the mother of A. sur-
rendered part of her jointure to enable her son to make a settlement; and B. agrees
to give his daughter £3000 portion. A. without the privity of his mother, gives
a bond to B. to pay back £1000 at the end of seven years. Decreed the bond to be
delivered up, as obtained in fraud of the marriage-agreement. And though A. after
B.'s death had promised to pay the £1000 to B.'s creditors, yet that was nudum
pactum, and not binding. Ant. Ca. 426, 450.
The plaintiff Turton, on the marriage of Benson's daughter, was to have £3000
portion, and in consideration thereof, his mother agreed to surrender part of her jointure
to enable her son to make the settlement.
There were no articles in writing, but in the settlement made by Mr. Turton, it is
mentioned to be in consideration of £3000 portion; but Mr. Benson, who was secondary
of one of the Counters in London, prevailed on Turton to agree between themselves,
unknown to his mother, and those who treated for the marriage on his behalf, to give
a bond to repay £1000, part [765] of the £3000, at the end of seven years, but without
interest. Benson being dead, the bill was brought against his widow and administratrix
to have the bond delivered up, as unduly gained, and imposed upon him by Benson a
little before the marriage, without the consent or privity of his mother or friends, that
treated on his behalf.
Richardson and others, as creditors of Benson, brought their bill to have the benefit
of the bond, charging a collusion between Turton and Mrs. Benson, and that she made
but a faint defence to their prejudice; and charging that Turton, since the death of
Benson, had promised to pay the money, and in confidence that it would be paid, it
was assigned over to the creditors.
The bond decreed to be delivered up, as obtained in fraud of the marriage-agreement.
The assignment to the creditors did not alter the case; a bond, which is assignable
only in equity, is still liable to, and attended with the same equity, as if remaining
with the obligee. ([So Coles v. Jones, ante, 691.])
And as to any promise made by Turton that he would pay it, that was but nudum
pactum (Vide Fenn v. Harrison, 3 Term Rep. p. 757), and not binding.
The decree in Michaelmas 1719, affirmed upon an appeal to the Lord Chancellor.
(1 P. Wins. 496, S. C. Et vide on the subject of a Court setting aside bonds and other
instruments entered into in fraud of marriage-agreement, Redman v. Redman, ante,
1 vol. p. 348, and cases cited in not. there.)
[766] DE TERM. S. TRINITATIS, 1719, IN CURIA CANCELLARIIE.
Case 665.-PINBURY versus ELKIN.
July 22 [1719].
Pre. Ch. 483, S. C. ; Ant. Ca. 662.
Object. 1. Legacy is to take effect after the death of Hester, the wife, without
issue, and therefore void, as on too remote a contingency.
If he die before issue.
If depart not leaving issue.
If died not having a son; all these limitations create an estate tail.
2 VER N. 765.
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