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SQUIRE v. PERSHALL [1726]
II BROWN.

that the decree therein complained of should be reversed, and the injunction dissolved; and it was further ordered, that the respondent's bill should be dismissed, with costs to be taxed; and that the same, when so taxed, should be paid by the respondent to the appellant. (Jour. vol. 23. p. 40.)


Case 9.—Arthur Squire,—Appellant; Dame Rachel Pershall, Widow—Respondent [24th February 1726].

[Mews' Dig. vi. 1876.]

[A. as a creditor of B. brings his bill against the proper parties, for a sale of B.'s estate, alledging, that he had by his will charged it with the payment of his debts. On the trial of an ejectment, a verdict is found against the will; and thereupon A's bill is dismissed with costs. But on an appeal, this decree, so far as it related to costs, was reversed.]

John Metcalfe, Esq. having one son, John, and two daughters, namely, the respondent and Isabella, and being seised in fee of an estate at Leeds, in the county of York, made his will in September 1670, and thereby devised all his estate, both real and personal, either in possession or reversion, to Eleanor his wife, to dispose of at her will and pleasure out of which she was to give portions to his son John, and to his youngest daughter Isabella, as she thought fit and convenient, and made his said wife sole executrix, and soon after died. The said Eleanor his widow entered on the estate, and quietly held and enjoyed the same several years. And in 1674, John the son died, under age and unmarried.

By indentures of lease and release, dated the 21st and 23d of January 1679, Eleanor the widow, for the considerations therein mentioned, conveyed all the said premises to John Bright, Esq. and his heirs, whom she soon after married.

Isabella the youngest daughter afterwards levied a fine of the premises to the said John Bright; and by a deed, dated the 11th of November 1680, declared the uses of the said fine to the said John Bright and his heirs; and he held and enjoyed all the said premises during his life.

In February 1686, John Bright made his will, and thereby gave one moiety of the said estate to his said wife Eleanor, and her heirs, and the other moiety to the said Isabella, then the widow of Abel Durden, during her life; and after her death, to her two daughters Eleanor and Isabella Durden, and to the heirs of their bodies.

Eleanor enjoyed a moiety of the premises under the will of her husband Bright; and soon after his death she married one Brooks; who living but a short time, she, on the 7th of February 1691, married Baldwyn Higgons; but the very day before, viz. the 6th of February 1691, without the privity of Mr. Higgons, she conveyed her moiety of the said premises to trustees; reserving a power to herself to dispose thereof, without the consent of any [397] husband she should afterwards marry; and accordingly, by lease and release, dated the 18th and 19th of October 1694, she, by the name of Eleanor Brooks, widow, conveyed the same to trustees and their heirs, upon the several trusts therein mentioned.

Baldwyn Higgons, knowing nothing of the deeds of 1691, and 1694, he and his wife Eleanor levied a fine of the said moiety; and by deed, dated in November 1698, declared the uses of the said fine to the said Eleanor, during her life; and after her death, to the said Baldwyn, during his life, and to other uses therein specified; in which deed, Eleanor reserved a power to herself by any writing under her hand and seal, to revoke the said uses, and declare any other uses. And by her will, under her hand and seal, dated in January 1702, she did revoke those uses, and devised her moiety of the said estate to one Mary Cox, and her heirs; who, by writing under her hand and seal, dated the 21st of January 1702, declared her name was used in the said will, in trust for the said Baldwyn Higgons, and his heirs; and covenanted, that Higgons and his heirs should enjoy the said estate.

In January 1702, Eleanor Higgons died; and soon after her death, Banister, the surviving trustee in the deed of October 1694, entered upon the said moiety, and

1021

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