TITLE.
By indenture of this date, Caesar Colclough, of Mocorry, and
Margaret Pigot Colclough of Tintern (the said Margaret being then seized in her
own right in fee simple), settled the Tintern Abbey and other estates, to the
use of said Caesar (her cousin) for life, with remainder to his sons
successively in tail male, with remainders over.
In 1744 Vesey Colclough, who was then the eldest surviving
son of Caesar, and heir under the entail, attained his age of twenty-one years,
and on April 23rd 1744, he entered into articles with his father
whereby they agreed to settle the estates for the purpose of raising money for
the purposes therein mentioned, and for that purpose to levy fines and suffer
recoveries, and in case Vesey should marry a wife with a fortune of £10,000 or
£12,000, the father and son were to enjoy the disentailed estates in equal
moieties. Caesar Colclough, and Vesey, his son, suffered a common recovery of
the estates in which Caesar Colclough was vouched, and he vouched over Vesey,
who vouched the common vouchee ; but it does not appear that there was any deed
expressly declaring the uses of this recovery.
Vesey Colclough shortly afterwards married without the sanction
of his father and a fresh arrangement was entered into, and by articles of this
date, Caesar and Vesey agreed that Caesar should give Vesey a present
maintenance of £400 a year, and that Vesey should have power to raise £2,000
for his own use, and to charge the estates with £3,000 for his younger
children's portions, they also agreed that £7,000 should be raised for Caesar's
younger children, and that Vesey should join Caesar in raising £2,000 for
Caesar's own use, and that on the perfection of proper modes for carrying out
this arrangement, all former articles should be cancelled ; but before any
settlement was executed Vesey died intestate, leaving his wife enceinte, who
was in due time delivered of a son, afterwards named Vesey. ,
An Act of Parliament was passed, whereby, after reciting the
above incumbrances, it was enacted that the estates should be vested in Lyons
and Bridges, as trustees, to raise by sale or mortgage the sums mentioned in
the last articles, and subject to such sales or mortgages, to hold the unsold
or mortgaged estates to the use of Caesar for life, and after his decease, to
the use of such person or persons, for such estates, trusts, and interests
" as he" or they, are now entitled unto, freed and discharged from
any provision " heretofore made or intended to be made for the younger
children of said " Caesar, by said settlement articles, or any other
deed." In pursuance of this Act, the trustees sold some parts of the estates,
and mortgaged others, but it is not necessary to give these particulars. It is,
however, submitted, that under the recovery of Easter Term, 1744, with no other
use declared of it than the somewhat ambiguous one in the above Act of
Parliament, the limitation created by the settlement of 1719 was well barred,
and Vesey Colclough, afterwards known as Sir Vesey (the son of Vesey and the
grandson of Caesar), became tenant in fee-simple of the estates left unsold, or
only mortgaged by the trustees under the powers in the Act.
By post nuptial settlement of
this date 13th June 1767, Vesey Colclough (the son of Vesey) settled
the estates, to the use of himself for life, remainder to the use of Caesar Colclough (Vesey's eldest son)
in tail male, remainder to the use of settlor's second and other sons
successively in tail male, remainder to the use of settlor, and his heirs in
fee. And by bargain and sale, enrolled of even date, Vesey Colclough and the
mortgagees, and other persons interested in parts of the estate, conveyed same
to Carroll, to make him tenant of the freehold,&c., and on date in margin a
common recovery was suffered, in which Thomas Colclough was demandant, John
Carroll, tenant, and Vesey Colclough, of Tintern Abbey, Esquire, grandson and
heir-in-law of Caesar Colclough, late of Mocorry, Esquire, deceased, was
vouchee, and he vouched over the common vouchee.
And it is submitted that this recovery effectually barred
the entail created in 1719, even if the recovery of 1744 and subsequent Act of
Parliament had not done so.
Vesey Colclough, known as Sir Vesey,
the settlor, had two sons, Caesar, late of Tintern Abbey, who died 23rd August,
1842, and John, who was killed in a duel in 1807, both dying without issue (both
these men had ‘illegitimate’ children as indeed did ‘sir’ Vesey and his father
and his grandfather JC 2014) ; and Vesey Colclough fearing that he
might die without issue, devised the estates in that event unto his cousin, Caesar
Colclough, Esquire (commonly called the Chief Justice), and the heirs of his
body, he recommending him to continue the estates in the male line of the family.
(The attention of Counsel is here called, in passing, to the
declaration by Sir Vesey in that will, that the Chief Justice was his "
cousin"). But by indenture of this date (September 14th 1807),
said Caesar Colclough (Vesey's eldest son and then tenant in tail in
possession, his father having died in 1798), conveyed the estates to Peter Burrowes,
to make him tenant of the freehold,&c., for the purpose of suffering a
common recovery, which it was declared should enure to the use of Caesar
himself in fee-simple, and a recovery of this date was suffered, in which James
Charles Martin was demandant, Peter Burrowes was tenant, and Caesar Colclough
was vouchee, and vouched over the common vouchee.
At the date of this recovery (1807),
Caesar Colclough was a prisoner of war in France, and the recovery deed, was
executed by him on the continent, in the presence of three witnesses, two of whom
saw the deed executed by Burrowes and Martin, and the deed was duly registered
in Dublin shortly afterwards. There always has been however, and there still
is, an impression in the collateral members of the family, that either from the
deed being executed abroad or from some other cause, the entail was not well
barred by the deed of recovery. Caesar Colclough having been then abroad, the
commission, warrant of attorney, and affidavit of execution of warrant by
Caesar Colclough were duly perfected. In 1818, said Caesar Colclough having
recovered, by proceedings in Chancery, a grant of the original estate which had
been improperly disposed of, under the Act of Parliament, and being about to
marry.
By indenture of this date 2nd
November 1818 (executed in England by all parties) Caesar Colclough conveyed
all the Tintern estate (including the newly acquired portion), to the same
Peter Burrowes, to make him tenant of the freehold, &c., for the purpose of
suffering another recovery, which it was declared to enure, to the use of the
said Caesar Colclough, in fee-simple.
A common recovery was again
suffered, in which said James Martin was demandant, Peter Burrowes tenant, and
said Caesar Colclough was again vouchee, and he vouched over the common vouchee.
By deed of this date Caesar Colclough, in
consideration of his intended wife's marriage portion, conveyed part of the
Tintern estate to trustees for the purpose of securing a legal rent charge of £500
a-year to his wife in lieu of dower, with the usual term of years in a trustee
for securing same ; Caesar Colclough having thus twice barred all entails in
the estate, made his will in 1842, devising all his property to his wife
absolutely, but which will was set aside for undue influence, and he was
declared to have died intestate, and by consent entered into between his widow
as such alleged devisee and the defendant, Mrs Rossborough Colclough, as his
heiress-at-law, a decree was made by the Court of Chancery in Ireland to that
effect, under these circumstances Mrs, Rossborough Colclough recently claimed
and obtained possession of the estates. First—As heiress-at-law of the last-named
Caesar Colclough, and secondly, (failing the recoveries of 1807 and 1818) as
only surviving child and heiress in tail of Caesar, the Chief Justice who, as
above stated, was devisee in tail general, under the will of Vesey (called Sir
Vesey Colclough), the settlor of 1767, in the event of Sir Vesey's two sons,
Caesar and John, dying without issue male, but after a lapse of nineteen years
and eleven months from the death of Caesar Colclough, another claimant has
sprung up in the person of the plaintiff, Mr Patrick Sarsfield Colclough, who
is understood to claim the estates as next heir in tail male (after the death
of Caesar) under the entail created by the settlement of 10th March, 1719, alleging that all the
reversions are defective, and that consequently the original entail has never
been properly barred, or in the event of the recoveries being held good, then
that the Chief Justice Caesar, and Rev. Dudley Colclough were both illegitimate,
and that Mrs Rossborough Colclough is also illegitimate, and cannot therefore
inherit as heir of the late Caesar Colclough.
Why the several recoveries are
alleged to be defective defendants do not learn (the exemplification of the
recovery of 1744, and that of 1818, can be produced, and office copies of the
recoveries of 1767 and 1807 (the exemplifications not being found), and neither
the recoveries nor the deeds making the tenant to the precipe appear to be
defective in any particular. Copies of all these recoveries are therefore
printed herewith in the appendix, in order that counsel may give particular attention
to them ; copy of the family pedigree is also annexed, which shows upon whom
the estates have, as it is believed, devolved from time to time under the
operation of the documents referred to, and defendants feel confident that upon
this point the title of Mr. and Mrs. Rossborough Colclough is unimpeachable.
