HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.slavery/ssactsengr0685 and id is 1 raw text is: BINFORD V. BAWDEN
was the only intent. These Plaintiffs are none of those people. In these instruments
there is no intimation of an intent to vary the circumstances, in which the property
then was, in any other respect than by changing it to separate property ; therefore
there can be no implied intent to revoke it. Then it must be upon some rule of law,
if at all. It may be said, the present claimant of this sum is a volunteer, and therefore,
shall not come into equity to have it made good : but this is a case of a Plaintiff coming
to set aside a deed, not of a volunteer coming to establish it. Equity will not set it
aside, where no intention of the party to do so appears, merely because some rule of
law revoked it at law. This money in conscience belongs to her, upon the supposition
that he did not intend to revoke this gift, because it was his intention to give her the
money without question ; if it had not been for this deed of partition, it would have
been given ; and if that imports no more than that single thing, she is still entitled to it.
The decree dismissed so much of the bill, as sought to have the deed-poll declared
void or fraudulent, and to have it delivered up, or to oblige the Defendant to release
her interest under it ; but without costs ; and declared the £2000 to be well charged
by it.
[512] BINFORD v. BAWDEN. July 6th, 1792.
[See Standering v. Hall, 1879, 11 Ch. D. 655.]
Wife examined on commission apart from husband as to the disposition of money
devised to be laid out in land for her in tail, reversion to her in fee, whether to be
received in money or laid out as directed.
Money was devised to be laid out in land for a feme covert in tail with reversion to
her in fee. For the Plaintiff it was prayed, as according to the usual course of the
Court in these cases, that she should be examined by commission, apart from her
husband, as to her inclination with regard to the disposition of the money ; and that,
if chose to take it in money, it should be paid to her.
Lord Commissioner Eyre. It is clear, the Court would do it in case of a person
sui juris.(1) It is equally clear, they would refuse it in case of an infant. (Seeley v.
Jago, 1 P. Will. 389.) I want to know, whether there is any case shewing what the
Court does in the case of a feme covert.
Mr. Mitford said, there was no case expressly deciding the point; but that in
Cunningham v. Moody, 1 Ves. [sen.] 174 (Oldham v. Hughes, 2 Atk. 452; 3 Atk. 448),
Lord flardwicke says, she must come into Court to consent or to be examined upon
commission.
Lord Commissioner Eyre. Declare, that she is entitled to this sum in the pleadings
mentioned ; and let a commission be awarded to examine her separate and apart from
her husband touching the disposition of the said sum, whether she will have it laid
out in land, or receive it in money ; and reserve all farther directions ; because it will
then be necessary, if she elects to take it in money, to inquire whether she has a
settlement. (2 Ves. jun. 38.)
(1) See post, Pearson v. Lane, 17 Ves. 101. Benson v. Benson, Short v. Wood,
Chaplin v. Homer, 1 P. Will. 131, 470, 483. Edwards v. Countess of Warwickc,
2 P. Will. 173. Trafford v. Boehm, 3 Athc. 440; 1 Ves. [sen.] 176; 2 Bro. C. C. 160.
Lord King refused it in Eyre's Case, 3 P. Will. 13, and in Onslow's Case, cited there (n.) ;
saying, a fine required time ; and he did not see, why the issue should not be regarded
as well as a remainder-man. Where there is a remainder over after an estate tail in
money to be laid out in land, since Colwall v. Shadwell, mentioned 1 P. Will. 471, 485,
and 1 Ves. [sen.] 176, before Lord Cowper, unless by consent of him in remainder, as
in Trafford v. Boehm, the money was not paid to the tenant in tail, but was laid out;
the tenant in tail in that instance having died without suffering a recovery. This
was altered by the statute 39 & 40 Geo. III. c. 56, authorising the Court on petition
to order money in trust to be laid out in land to be settled, to be paid to the person,
who, as tenant in tail of the land, could bar the remainder by a recovery. In executing
that statute the Court takes care, that time sufficient for suffering a recovery shall
have elapsed ; qualifying an order, made in Vacation with the condition, that the
tenant in tail shall be living on the second day of the ensuing Term ; ascertains that
the title and the fund are clear ; and requires a petition by each party : Lowton v.
I VES. JUN. 512.](ViewImageLocal?handle=hein.slavery/ssactsengr0685&div=1&collection=&method=preview&ext=.png&size=3)