The Harker Family

Christopher Alderson (Harker) Alderson

Birth: 21 December 1785

Baptism: 19 March 1786, in Paradise, Garsdale, Yorkshire, England

Father: David Harker

Mother: Jane (Nelson) Harker

Married: Mary Metcalfe on 18 September 1811, in Saint Leonards, Shoreditch, London, England. Mary died on 19/20 September 1825, at Woodhall Park, near Askrigg, Yorkshire, and is buried at St Oswolds, Askrigg.

Children:
 Death: 22 April 1837, at Highwood, Hendon, Middlesex, England

Buried: St Oswolds, Askrigg, Yorkshire. The gravestone is white marble with leaves and scrolls at the sides; the mason is Waudby, of York. The inscription reads:
Sacred to the memory of
CHRISTOPHER ALDERSON ALDERSON
of Woodhall Park Esq.
who died at Highwood Middlesex
April 22nd 1837
aged 51
and of MARY his wife
who departed this life
September 20th 1825
aged 36

Notes: In accordance with the will of his great-uncle Christopher Alderson, who died in 1810, Christopher Alderson Harker changed his name to Christopher Alderson Alderson.

Christopher was made an Ensign in the 1st Regiment of North York Local Militia on 26 June 1813.

He bought Woodhall Park, near Askrigg, from John Beezon Baynes in 1818 and he is listed there at the dedication of a memorial to his great-uncle at the church in Askrigg in 1819. We find him in Woodhall in Baines's Directory of 1823 as a member of the Gentry, and in Pigot's Directory for 1829 for Askrigg, he is living at Woodhall Park.

Evidently he, too passed on a good deal of wealth - in 1848, a private Act of the House of Lords was required to deal with shares of the estate owned by two of his children who were mentally ill:
Private Act (Printed), 11 & 12 Victoria I, c. 19 (1848)
An Act for vesting the Two undivided Sixth Shares of Christopher Alderson a Lunatic, and Mary Alderson Spinster, a Person of unsound Mind, as Two of the Six Children of Christopher Alderson Alderson deceased, in certain Freehold Estates in the Counties of Middlesex, Hertford, and York, in Trustees in whom the other Four undivided Sixth Shares are now vested, upon trust for Sale.

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David Harker

Married: Jane Nelson on 9 June 1783, in Garsdale, Yorkshire, England

Children:
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Sarah (Harker) Barnard

Birth: 18 May 1784

Baptism: 20 June 1784, in Dandragarth, Garsdale, Yorkshire, England

Father: David Harker

Mother: Jane (Nelson) Harker

Married: William Payne Barnard on 25 February 1811, in St Mary, St Maylebone, London, England

Sarah's marriage led to a civil lawsuit against her filed by four of her second cousins, Christopher Alderson Lloyd, Kitty Alderson Lloyd, Margaret Lloyd and Emma Lloyd. In 1810, Sarah, along with her cousins, had inherited a sizeable sum from her great-uncle, Christopher Alderson under the condition that she not marry without the consent of his trustees. Sarah's marriage to William did not recieve this consent, and the suit was to enforce forfeiture of the legacy. Legal wrangling in the case, which reached the High Court of Chancery, centered on whether the wording in the will reached a sufficient legal standard to enforce the forfeiture.

Reports of Cases Argued and Determined in the High Court of Chancery Vol III 1816-1817 p108-120 (1819)
Rolls. March 5. April 28. 1817
CHRISTOPHER ALDERSON LLOYD, KITTY ALDERSON LLOYD, MARGARET LLOYD, and EMMA LLOYD - PLAINTIFFS AND JOHN BRANTON, JOHN PEARSON, CHRISTOPHER ALDERSON HARKER, and W.P. BARNARD and SARAH his Wife DEFENDANTS.

Testator gives 24,000l., upon trust as to 6000l. to pay the interest to S.B. (his niece) during her life, and, after her decease, the principal among her children; if she should die without issue, over. He declares similar trusts as to three other sums of 6000l. (making the remainder of the 24,000l.,) for his three other nieces and their children. Proviso, that, in case any of his said nieces should marry without such consent as therein prescribed, each, &c. so marrying, should forfeit the interest of her 6000l., and all other sums to which she may be entitled under his will; and the respective sums of 6000l., and all such other sums, &c. should fall into his residue. And he gives the residue in trust for his two nephews and their children - in case of the death of either without issue, his moiety to go over to and be divided among his said nieces. Afterwards, by codicil, he gives to each of his nieces 2000l. in addition, "subject to the same powers, provisos, directions, and limitations, as are contained in the will respecting the sums of 6000l." S.B. who was of age at the date of the will, marries without the consent required.
  Held, a forfeiture; extending not only to the future interest of her 6000l., but to the capital, and also to the 2000l. given by the codicil, and to a fund set apart to answer an annuity, to which S.B. would otherwise have been entitled on the death of the annuitant. Whether the forfeiture would also extend to her share of the residue, in the event of the contingency upon which it is given over to the testator's nieces, quœre.

CHRISTOPHER ALDERSON, by his will, dated the July 24, 1810, gave and bequeathed to the defendants, Branton, Pearson, and Harker, 24,000l. upon trust, as to 6000l. (part thereof) to invest the same in their names, or in the names or name of the survivors or survivor, his executors or administrators, upon government or real securities, and to pay the dividends or interest to his great niece the defendant Sarah Barnard (then Sarah Alderson spinster) by half-yearly payments, during her life, and after her decease to transfer and pay the capital unto and amongst her children as therein mentioned; and, in case she should die without issue, then upon trust for her brother the defendant Harker. Similar trusts were declared as to three other sons of 6000l. each (residue of the said sum of 24,000l.) for the benefit of the testator's three infant great nieces, (the plaintiffs Kitty Alderson Lloyd, Margaret Lloyd, and Emma Lloyd,) and their children; and the testator directed that his four great nieces should have and be entitled to the dividends and interest of the said respective sums of 6000l., and to all and every sum and sums of money which they should respectively have or become entitled to under his will for their respective sole and separate use. The testator then declared it to be his will that his trustees, or the survivors, &c. should pay and apply any part of the dividends or interest payable to such of his said great nieces as should at the time of his decease be under the age of twenty one years, in or toward her or their respective maintenance, &c., or otherwise, until she or they should respectively attain the age of twenty-one years, or be married with such consent as thereinafter mentioned, as his said trustees should in their discretion think proper. The testator also gave to his said trustees an annuity of 50l. for the life of his niece Jane Harker (the defendant Sarah Barnard's mother) upon trust to pay the same to his said niece for her life; and he directed that a sufficient part of his personal estate should be invested for securing the said annuity, and that his trustees should stand possessed of the funds in which the same should be invested, from and after the decease of his said niece, upon trust for her daughter Sarah Barnard. The will contained also a specific bequest of books and other articles to Sarah Barnard; and there then followed a proviso that, in case of the marriage of any of the testator's four great nieces with the consent of his said trustees, or of the trustees and executors for the time being of his will, in writing for that purpose given, but not otherwise, his said trustees or the survivors, &c. should pay to each of the said great nieces so marrying, or otherwise settle upon her, or her issue, in such manner as they in their discretion should think adviseable, the sum of 2000l., to be raised and paid out of the 6000l., to the dividends and interest whereof his said great uiece so marrying was under his will entitled for her life as before mentioned; and another proviso, that if any of his great nieces should marry without the consent of his said trustees or trustee for the time being, testified by writing under their or his hands or hand first given, then and in such case, his said great nieces, each and every of them so marrying without such consent, should, from thenceforward, forfeit, and be no longer entitled to, the dividends or interest of the respective sums of 6000l. payable to them respectively for life as before mentioned, or to any other sums which they might respectively become entitled to under his will, and should not have received; and that the said interest and dividends, and the respective sums of 6000l., or the securities for the same, and all such other sums to which they respectively might become entitled as aforesaid, should thereupon sink into, and constitute part of, the residue of his estate. And he gave and bequeathed the residue of his said estate and effects unto his said trustees, upon trust to invest the same upon Government or real securities, and to pay to his great nephews, the plaintiff Christopher Alderson Lloyd and the defendant Harker,) the dividends or interest of the same, in equal shares, for their respective lives; and after the decease of either, as to one moiety, upon trust for his children; or in case either should die without leaving issue, then upon trust to pay the dividends or interest of his moiety to the testator's four great nieces, share and share alike, during their respective lives; and after the decease of any and each of them, as to one fourth part of the said moiety, upon trust for the child or children of her so dying: but in case any of them should die without leaving issue, then upon trust for the survivors of his said nieces, and the respective issue of any that should be dead, in equal shares.
  By a Codicil to his will, dated the 14th of December 1810, the testator revoked the said legacies of 6000l. to his great nieces, and gave to each of them 5000l., to be invested in like manner as directed by his will as to the 6000l.; and directed that the dividends or interest thereof respectively should be paid to his said nieces for their respective separate use, and that the legacies of 5000l. each, and the dividends or interest of the same, should be subject to the same trusts, conditions, powers, provisos and directions, as by his will declared concerning the legacies of 6000l.
  By another codicil, dated the 20th of December, 1810, he gave to each of his grand nieces 2000l. in addition to what he had before given them, and directed that the same should be invested in the names of his trustees, and the dividends and interest go and be paid and payable to his said nieces respectively, and their respective children, subject to the same powers, provisos, directions, and limitations, as contained in his will respecting the 6000l., except as to the payment of 2000l. on their respective marriages.
  At the death of the testator, which happened in 1810, the defendant Mrs. Barnard, (then Sarah Alderson, spinster,) was twenty-six years of age, and shortly afterwards she married the defendant W.P. Barnard.
  On the hearing of the cause it was referred to the Master to enquire (among other things) at what time, and under what circumstances, the marriage took place, what was the age of Mrs. Barnard at the time of the marriage, and whether the same was had with such consent as required by the will of the testator. The Master by his Report certified the facts of the case accordingly, from which he found that the marriage was not had with such consent as aforesaid. The Report was not excepted to, and the cause now coming on for further directions, the question was, whether, in consequence of such marriage without consent, a forfeiture had been incurred of all or any of the bequests to Mrs. Barnard contained in the will and codicils.
  Bell and Palmer, for the defendants Mr. and Mrs. Barnard, contended against the forfeiture, upon two grounds, first, that there was no sufficient bequest over, and secondly, that the condition could not be held to extend to a marriage without consent after the party had attained the age of twenty-one.
  I. It is a clearly established rule, that, in the case of a legacy liable to be defeated by a condition subsequent in restraint of marriage, where there is only a general residuary bequest, that is not sufficient to support the condition; which is void, as being held in terrorem, unless there is a good bequest over of the particular legacy. This point was regarded as settled by Lord Thurlow, as appears from the written judgment pronounced by him in Scott v. Tyler (a).
  There are two cases exactly in point with the present, as to a mere declaration that the legacy shall sink into the residue on the condition happening not being sufficient to alter this rule. The first is a case cited by the Master of the Rolls in Reves v. Herne (b); the other, the case of Garrett v. Pritty (c). In Harvey v. Aston (d), indeed, it is said by Mr. Justice Comyns that it was held otherwise in Amos v. Horner (e), which was a later case than Garrett v. Pritty, and appears by him to have been regarded as over-ruling the last mentioned case. But Amos v. Horner was never decided (f). If the cases above cited are law, (and it has never been determined otherwise,) the present is clearly within them: but if it should be held, notwithstanding these cases, that the mere direction that, on the happening of the condition, the legacy shall fall into the residue, is sufficient to form an exception to the rule of the civil law that such a condition is void, as operating only in terrorem, we have then to consider how this condition is to be construed with reference to the particular circumstances of the case.
  II. The clause of forfeiture on marriage without consent must be construed to relate to the time when the legacy would become vested. Pullen v. Ready, 2 Atk. 587. In this case, it is declared that, by marriage without consent, the legatee shall forfeit, not only one particular legacy, but all the benefits intended her by the will. Now, by the will, she takes, besides the legacy of 6000l., and the additional 2000l. given by the codicil, a specific bequest of books and household furniture, an annuity of 50l. after the death of her mother Mrs. Harker, and lastly her contingent share of the residue. In this case, therefore, there are different times appointed for the vesting of the several legacies, all of which are to become forfeited on the same event happening; and, where there are different times for vesting, it seems reasonable to fix upon a certain limited period as that to which the condition is meant to be restricted, and then there is no period so obvious as that of legal competency. If not to the age of twenty-one, to what other period could the condition be limited? A condition in restraint of marriage under twenty-one, even where there is no gift over, is held a reasonable and good condition; because it imposes no other restraint upon the liberty of marriage than was before imposed by the law of the land. If otherwise, this is a condition in restraint of marriage generally, which is within the policy upon which the exception to the rule of the civil law is founded. Thus, in Stackpole v. Beaumont (a), Lord Loughborough says, "I am perfectly free in this Court, in a case where the condition only operates up to the age of twenty-one, and requires no more than the general policy of the law and course of the Court hold to be proper, to say there is nothing illegal in such a condition. - Confined to such cases, where the restraint operates only up to the age, till which, by the law and policy of the country, consent is necessary, I have no difficulty to say, there is no authority to lead the Court to pronounce a proposition so repugnant to that law, as that such a condition is invalid." And see Reynish v. Martin (b), and cases there cited. See also Fry v. Porter (c), Semphill v. Bayley (d), Elton v. Elton (e), Knapp v. Noyes (f), where Lord Camden said, "It is very unnatural for a parent to impose a consent to marriage during his daughter's whole life;" and he held that, in that case, "the condition of marriage with consent must mean, at an earlier time than twenty-one." So Osborn v. Brown (g), where the legacy was made payable within twelve months after the testator's death, but, if the legatee should marry a certain person, then the legacy was revoked; and the legatee having married that person after the twelve months had expired, it was held the legacy vested at that period, and the condition referred only to the time of the vesting.
  If it be said that, in this case, there was no time appointed for the vesting of the principal legacy, yet those bequests, which were made payable immediately, must be held to have vested accordingly, and the condition, as to those, to have reference only to the period of vesting. And in this respect the additional sums given by the codicil are so circumstanced, and the condition must therefore be held not to apply to them, whatever it may do as to the sums of 6000l.

The MASTER of the ROLLS.
  It is now too late to raise a doubt on the legality of the condition on which Mrs. Barnard's right to the bequests given her by the will is made to cease.
  In the modern case of Dashwood v. Lord Bulkley (a) the validity of such a condition does not seem to have been considered as at all open to controversy, although it was not confined to marriage under twenty-one.
  Then the question is only upon the import and effect of the condition which the testator has in this case imposed.
  It was contended, in the first place, that, in fair construction, it may be understood as applying only to a marriage under the age of twenty-one. When a legacy is to vest, or be paid, at a particular age, and then there is a clause of forfeiture on marriage without consent, the Court, I agree, will construe such clause as having relation to a marriage under the specified age. But there is nothing in this will which can make that doctrine applicable to the case of Mrs. Barnard. The testator has not, with regard to her, spoken of twenty-one, or of any other age or period, at which the bequests made to her were to take effect. He does make some specific provision with respect to the event of any of his grand-nieces being under the age of twenty-one at his death - and, with regard to them, the argument might have some application: but Mrs. Barnard was above that age before the will was made, and yet the testator has thought proper to include her in the condition, by extending it to all his grand-nieces. The bequests to her vested at the testator's death, liable to be devested by her marriage without consent.
  As the condition in this case is certainly a condition subsequent, it was contended, in the next place, that, without a devise over, it can produce no effect, and that here there is nothing which can be considered as a devise over in the event of a breach of the condition.
  Whatever diversity of opinion there may have been with respect to the necessity of a devise over in the case of conditions precedent, I apprehend that, without such a devise, a subsequent condition of forfeiture on marriage without consent has never been enforced. Different reasons have been assigned by different judges for the operation of a devise over. Some have said that it afforded a clear manifestation of the intention of the testator not to make the declaration of forfeiture merely in terrorem, which might otherwise have been presumed. Others have said that it was the interest of the devisee over which made the difference, and that the clause ceased to be merely a condition of forfeiture, and became a conditional limitation, to which the Court was bound to give effect. Whatever might be the ground of decision, it was held that, where the testator only declared that, in case of marriage without consent, the legatee should forfeit what had been before given, but did not say what should become of the legacy, such declaration would remain wholly inoperative. Whether a mere residuary bequest amounted to a disposition of the legacy, has been matter of much controversy. In Harvey v. Aston (a), Lord Chief Justice Willes, and Lord Chief Baron Comyn, held that it did. Lord Hardwicke did not there express any opinion on the point - but in the subsequent case of Wheeler v. Bingham (b), he decided that a residuary bequest was not such a devise over as the rule required. The case of Scott v. Tyller (c) has been sometimes considered as a contrary decision. But it appears from the copy of Lord Thurlow's judgment in Dickens, that he thought it had been properly held that a residuary bequest left the conditional legacy in statu quo, and that the ground of his decision was, that Mrs. Scott never came under the description to which the gift of the 10,000l. was attached. In the present case, there is a direction that the forfeited bequests shall sink into and constitute part of the residue therein afterwards bequeathed. It does not rest therefore on a mere declaration of forfeiture. There is an express disposition made of what is to be forfeited. It was said that a direction that it shall fall into the residue is no more than the law would imply, and cannot therefore amount to a bequest over. But when it was decided that a residuary clause did not carry such a legacy, it was by consequence decided that it did not fall into the residue - for if it did, the residuary legatee would be entitled to it. What is here declared is, that that residue which is thereinafter given shall include in it the legacies declared to be forfeited. In the case of Wheeler v. Bingham (d) Lord Hardwicke held that there was a clear distinction between a mere residuary bequest, and a direction that the legacy should sink into and constitute a part of the residue. And the contrary had not been decided in Garrett v. Pritty (a); for the will contained no such direction, and the decree could not therefore proceed on the ground stated by the reporter (b).
  I am of opinion that there is in this case a valid devise over; and, as the marriage appears by the master's report to have been had without consent, it follows that the forfeiture takes place. And there is no question but the forfeiture extends, not only to the future interest and dividends, but to the capital of the principal legacy, and likewise to the fund directed to be set apart to answer the annuity to the mother of Mrs. Barnard, to which the daughter would otherwise have been entitled at her decease.
  It is impossible to make any distinction as to the 2000l. given by the codicil. For that is given subject to the same powers, provisos, directions, and limitations, as are contained in the will with respect to the 6000l. It is by a proviso that the forfeiture is declared; and to that proviso the 2000l. must be subject, as also to the direction that the forfeited shares shall sink into the residue.
  It is unnecessary to say whether Mrs. Barnard would be excluded from a share of the residue, if the contingency on which it is given to the grand-nieces should happen. It may never happen, and therefore there is no question upon it which the Court ought at present to decide.

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