Benson contra Bellasis, 34 Car. 2. fo. 848.

THis Cause having received a hear∣ing before the Lord Chancellor Nottingham, 11 July. 33 Car. 2. who made a Decree for excluding the Defen∣dant Dame Dorothy, Administratrix of Ro∣bert Benson the Plaintiffs Father, from hav∣ing any part of his personal Estate, and the said Cause being heard 10 July, 35 Car. 2. before the Lord Keeper North, who de∣creed the said Defendant Dame Dorothy, to retain to her own use one third part of the said personal Estate of the said Robert Benson, and the said Cause being again reheard this day by the Lord Chan∣cellor Jefferys.

The Case being, that the said Robert Benson on his Marriage with the Defen∣dant Dame Dorothy, for the setling of a Joynture on the said Dorothy, in full of Page  253all Joyntures, Dowers and Thirds, which she might claim out of his real and per∣sonal Estate, conveyed Lands to the use of himself for life, and after to the said Dorothy for life in full of all Joynturs, &c. as is aforesaid, with this Proviso,* That if the said Dorothy, should after the death of the said Robert Benson, have or claim to have, or should recover any other part of the Lands or Tenements, or any part of the personal Estate of the said Robert, by the Custom of the Province of York, or by any other means whatever, other than what the said Robert Benson should give, Bequeath or Settle upon or to her; That then the Feoffees therein named should be seised, of all the premisses set∣led in use upon the said Dorothy, to the use of Sir Henry Thompson and Mr. Gray∣ham, their Executors, Administrators and Assigns for 60 years, to commence from the death of the said Robert, if the said Doro∣thy should so long live; Upon Special Trust, that the said Thomson and Gray∣ham should receive the profits of the pre∣misses limited in the Joynture, and they should dispose thereof to such persons and their uses, as should be damnified by the said Dorothys perception, of the pro∣fits of any other Lands of the said Robert, or the taking or recovery of any part of the personal Estate, other than what Page  254should be given or bequeathed until the respective values of the Profits, or values of such Personal Estate should be fully satisfied, and the residue of the said Pro∣fits to remain to the said Dorothy.

That the said Robert dying intestate, and the said Dorothy Administring at York, and in the Prerogative Court of Canterbury, as Guardian to the Plaintiff Robert, pos∣sessed the Real and Personal Estate, pre∣rends a Right to some part of the Perso∣nal Estate by the said Administration, notwithstanding the said Marriage agree∣ment.

The Lord Chancellor Nottingham de∣clared, the said Dorothy was bound by the said Marriage Agreement,* and the Ad∣ministration ought to have been granted to her, and that however, the same ought not any ways to avail her, for that it would be contrary to the said Settlement and Agreement, and that the said Dorothy ought not to claim any part of the Real Estate, other than what was Setled on her by the said deed, or any of the Personal Estate, and decreed accordingly.

But the Defendant Dorothy insisted,* That the Lord Keeper North had adjudg∣ed one third of the Personal Estate, to Page  255belong to the Defendant, by virtue of the said Administration, and was an accrew∣ing Right, not barred by the Marriage Agreement.

The Lord Chancellor Jefferies,* on read∣ing the said Marriage Settlement, and the said two former Orders, declared, That the said Order for the Excluding of the said Defendant Dorothy from having any part of the Personal Estate, was a just Order, and ought to stand and be pursued and that the said Order of the Lord Keeper Norths before mentioned, ought to be set aside, and Decreed accordingly.