AN INTERESTING WILL CASE.

Ashburton Guardian, Volume IV, Issue 1040, 5 September 1883, Page 4

AN INTERESTING WILL CASE.

The will of the Countess of Charlemont came before the Dublin Court of Appeal on June 22nd for judgment upon a question raised by the Earl of Charlemont. The appeal was brought by the Earl of Charlemont against a decision of the Judge of the Probate Division allowing the demurrer of the de/endant, the Hon Victor Albert Charles Spencer, to the Earl’s plea that j&e late , Countess of Charlemont had v estate to her separate use that she could dispose of at the time of her death. The property in ques- ; tibn consisted of jewellery, comprising a head ornament set with diamonds and rubies, a diamond necklace, cross, and'earrings, bracelets, ruby and diamond necklaces, two loose ruby drops given to her mother by George IV. on the day she was presented at Court, an ivory fan set with diamonds and rubies, an'amethyst, necklace, a gold serpent 'brooch,‘a pendant. heart set with tur-; quoise, and an enamelled pin representing a. parrot, the two latter orna.ments being a present from the Queen, •to l the testatrix when a child, and a berthe and tunic of old Point d’Espagne, which Cardinal Fesch received from 1 Napofeon T, the whole estimated at upwards of L 7,000. By her (.will she bequeathed to her. eldest or only son, in case she had a-son, the jewellery for life, with’ restraint on alienation, as she; desired the articles to descend as heir-! looms in’.the Charlemont family, and so;be, possessed by the Earl of Charle.jnont for the time being as long as the title should be held by a descendant ibf the husband, the present Earl, or of his brother, the Hon Henry William ' .Caulfield ; but if there was no son, and afjshe left a daughter or daughters, .articles of jewellery were to go to tfie daughters on attaining the age of ,bef jsh.e hoped he would marry again before any of her daughters attained the age of seventeen, and if ■ he so matHed the articles were for the use of ihis.wife.' If there was a son born of

the second marriage she left the jewelto ■ him,' if not the jewellery ''shhujd revert to her daughters, Finely, failing the foregoing events, the

. jyholje, of the jewellery should be given the ,: Hon , Victor Albert Charles •Spencer* son of her cousin Lady Jane Lady Charlemont died on May I, 1882, and the defendant, the Hon Albert Charles Spencer, who is a

minor,- and residing with his father, Lord Churchill, at Cornbury-park, CharJ>uny Oxfordshire, became entitled •kd ‘the jewellery. On behalf of Lord Charlemont it. was contended that at the. date of the will the late Countess being a married woman r. bad. .- no power of disposing of the jewellery and lace. The defendant having demurred to the plea, Judge Warren allowed the demurrer, holding that the will spoke not from its date, but from the death of the testatrix. Ag&lrist this decision Lord Claremont appealed. The Master ot the Rolls, in giving judgment, said a married ffomu as to her separate estate had ,1 Ihe.same right of disposition by will as a fetntne sole, s the will of ihefemme sole operated upon any property she might have at her death, so the will of a married: -woman was operative on any separate estate she had the moment she The authorities coincided with the ’ general principles of law j why should not a married woman have power of disposing’of a contingent interest or of the .rents and profits from all estate accruing at. the time of her death?".! (Quoad the separate property a married woman-should be in the same position as a femme sole. There-

fore Judge Warren’s decision must be Mffihftedj and: the- appeal dismissed, with costs. Lord Justice Fitzgibbon concurred. It was the separate estate which was the creature of equity, and it was not to the woman but the pro-

petty that the doctrine of equity was to be ajpplied. Lord Justice Barry also concurred. The appeal was accordingly dismissed, with costs.