Barlow v Bateman
Reference: Barlow v Bateman (1735) 4 Bro. P.C. 194
- (1735) 2 Bro. P.C. 272 8vo ed.
House of Lords
2nd April 1735
— see Barlow v Bateman (1730)
The parties to the case
- Charles Barlow (the Appellant and original Plaintiff)
- Robert Bateman, otherwise Barlow, and Mary his wife, Thomas Langton and John Watts, surviving Executors of George Barlow, deceased (the Respondents and original Defendants)
Summary of the facts
The testator George Barlow being possessed of a considerable personal estate, by his will, dated the 20th of May, 1727, devised in the words following —
“I give and bequeath unto my kinsman Charles Barlow, (meaning the appellant) son of Edward Barlow, deceased, an infant now at school at Mr Phipps’s, at Westham 
in the county of Essex, the sum of £ 8000 of lawful money of Great Britain, to be paid to him when he shall attain his age of 21 years: But in case the said Charles Barlow shall happen to die before he shall attain the said age of 21 years, then I give the said sum of £ 8000 with all benefit, interest and improvement thereof, unto my kinswoman Mary Barlow (meaning the respondent Mary) an infant under the age of 21 years, now being with Mrs Farrington in Blackmoor-street in Southwark , in the county of Surry, to be paid to her at the day of her marriage, in case she shall marry with any person of the sirname of Barlow; but if she shall marry a person of any other sirname, then from and immediately after such last mentioned marriage, I give and bequeath the said £ 8000 and the interest, produce and improvement thereof, unto my friend Henry Best of London, packer. Item, I give and bequeath unto my said kinswoman Mary Barlow the sum of £ 1000 to be paid to her at her age of 21 years, or day of marriage, which shall first happen: But in case she shall die before she shall attain the said age of 21 years, or be married; then I give the said £ 1000 to my kinsman Charles Barlow, to be paid to him at his age of 21 years. Item, In case the said Mary Barlow shall marry with any person of the sirname of Barlow, then I give her the further sum of £ 1000 of like money, to be paid her on the day of such her marriage with a Barlow aforesaid; but if the said Mary Barlow shall die unmarried, or shall marry a person not bearing the sirname of Barlow; then I give the said last mentioned sum of £ 1000 unto the said Charles Barlow, to be paid as aforesaid.”
And the testator, by his will, directed that his executors should, as soon as conveniently might be, lay out the said several sums in bank and South Sea annuity stock, for the benefit of the appellant and the respondent Mary respectively.
Soon after the testator’s death, which happened on the 4th of July, 1727, the respondent Mary, not regarding the condition or terms put upon her by the will, intermarried with the respondent Robert, who was then an apprentice to a coach-harness maker, and whose father’s name was Bateman, and who was himself christened, called and known by the name of Robert Bateman.
The appellant being under the age of 21, and being advised that by the said marriage he became well entitled to the said legacy of £ 1000 so conditionally devised to the respondent Mary as aforesaid; in Michaelmas term, 1728, exhibited his bill in the Court of Chancery against the respondents Robert and Mary his wife, and against the executors, to be decreed, inter alia, to the said sum of £ 1000 and the interest and produce thereof.
To this bill the executors put in their answer, and thereby confessed they had sufficient assets of the testator to answer the legacies so devised as aforesaid; and that they had, in pursuance of the testator’s will, and in discharge of their trust, laid out a sum of £ 11,796 5 s. in the purchase of £ 5000 bank, and £ 5000 South Sea annuity stock, and submitted to pay the legacies as the Court should direct. And the respondents Robert and Mary his wife having put in an answer, the respondent Robert thereby confessed, that on the occasion of his marriage, and not before, he assumed and took upon him the name of Barlow, and that his father’s name was Bateman; and that he assumed and took upon him the name of Barlow, in order to entitle himself to the said sum of £ 1000 devised to the respondent Mary by the testator, upon the condition aforesaid.
The cause being at issue, witnesses examined and publication passed, came on to be heard before the Master of the Rolls [Sir Joseph Jekyll ] on the 13th of July, 1730, when his Honour was pleased to order and decree, that the appellant’s bill, as to the demand of the £ 1000 devised to the respondent Mary, upon the condition aforesaid, should be dismissed; the said Mary having married a person who bore the name of Barlow: And this decree was soon after signed and inrolled.
But doubts still subsisting as to the right to this legacy, the respondent Robert, by the name of Robert Barlow, and Mary his wife, in January, 1731, exhibited their bill in the Court of Chancery against the executors and residuary legatees, and against the appellant, praying to be paid both the legacies of £ 1000 each, devised to the respondent Mary, by the testator’s will as aforesaid.
To this bill the appellant by his answer insisted, that the respondent Mary had, by her marriage, forfeited the benefit of the legacy of £ 1000 conditionally devised to her, and that he, the appellant, on account of the said marriage, became entitled thereto.
The other defendants having put in their answers, and issue being joined, witnesses examined, and publication passed, the cause came on to be heard before the Master of the Rolls [Sir Joseph Jekyll], on the 22nd of July, 1734, when his Honour thought proper not to vary his former decree, with respect to the said conditional legacy of £ 1000 devised to the said Mary as aforesaid, she having intermarried with a person who bore the name of Barlow: And therefore, gave the usual directions for the payment of both the legacies. But this decree was not signed or inrolled.
Arguments submitted by counsel
The appellant appealed from both the decrees; insisting, that it was the manifest intention of the testator, that a person of his own name should, by marriage with the respondent Mary, have the benefit of the legacy of £ 1000 conditionally devised to her; or in default thereof, that the appellant should have it: For by the express words of the will, this legacy was given to the respondent Mary, upon a condition precedent, namely, that she should marry a person of the sirname of Barlow; and that on the day of such her marriage with a Barlow, the legacy so devised was to be paid to her. But as she had not performed this express condition, it was submitted, that she could not be entitled to the legacy. That the respondent Robert could not, previous to his marriage, legally assume the sirname of Barlow, otherwise than by act of Parliament, so as to entitle himself to this legacy; but if his assuming that name in the manner he had done, should be sufficient to entitle him, he might, in the same manner, after receiving the legacy, reassume his own legal name, and thereby wholly frustrate and defeat the testator’s intention. It was therefore hoped, that for these reasons, both the decrees, so far as they related to this legacy, would be reversed.
On the other side it was said, that as the last decree was not signed and inrolled, no appeal lay from it; and as to that part of the first decree, of which the appellant complained, it was apprehended to be very just and right. Because conditions annexed to legacies, which go in restraint of the freedom of marriage, are considered as void by the civil law, and are not at all favoured in Courts of Equity; and because the intention of the testator, in this case, was fully complied with, by the respondent Robert’s bearing the name of Barlow, before and at the time of, and ever since his marriage; which was all that was required by the testator’s will.
Judgment
Lords Spiritual and Temporal —
It is Declared, by the Lords Spiritual and Temporal in Parliament, That the Appellant is well entitled to the Legacy of One Thousand Pounds, conditionally bequeathed to him by the said Will: And it is therefore ORDERED and Adjudged, That the said Decree of the 13th of July 1730 be, and the same is hereby, reversed: And it is further ORDERED, That it be, and is hereby, referred to One of the Masters of the Court of Chancery, to inquire what Part of the Testator’s Personal Estate hath been laid out by his Executors in Bank Stock and South Sea Annuity Stock, and what Proportion thereof and of the Produce thereof belongs to the Appellant, in respect of the said Legacy of One Thousand Pounds: And it is hereby further ORDERED, That the said Court of Chancery do give the necessary Directions for taking the said Accompt, and for the Transfer and Payment of so much of the said Bank Stock and South Sea Annuity Stock and of the Produce thereof to the Appellant, as shall appear to be his Proportion of the same, in respect of the said Legacy: And it appearing that the said Decree of the 22nd of July 1734 hath not been signed by the Lord Chancellor
[Lord Talbot
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Orders of the court
Appeal dismissed.