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II BROWN.

HEDGES v. HEDGES [1709]

same for the future; it was submitted, that loose and uncertain evidence ought not, at this great distance of time, to be set up to overturn the plain words [457] and meaning of the indentures, and to make the custom thereby established precarious and uncertain.

After hearing counsel on this appeal, it was ordered and adjudged, that the decree therein complained of, should be reversed and it was declared, that the appellant became entitled to a general fine upon the death of the late Duke of Wharton; and that the respondents ought to pay the same, in respect of their customary estates held by them, according to the rates specified in the several indentures of August and September 1613. And it was further ordered, that it should be referred to a Master of the Court of Chancery, to inquire whether the said fines, so payable by the respondents, had been rightly assessed, and to state the same; and if they had not been rightly assessed, then the Master was to take an account what the same amounted to, according to the said indentures, and the same were to be paid by the respondents to the appellant: and that the said court should give further directions in pursuance of this order. (Jour. vol. 24. p. 530.)

CUSTOM OF LONDON.

Case 1.—Dame Ann Hedges, and Others,—Appellants; William Hedges, and Others,—Respondents [1st April 1709].

[A freeman of London having children by two venters, and being desirous of making some difference between them in point of fortune, gives two of them by his will & bond of £3000. He afterwards got a new bond for the same sum, made out in the name of J. B. in trust for those two children. The testator, then, by advice, struck out the bequest of the bonds, and republished his will. Held, that these children were entitled to their full shares of the orphanage part of the testator's estate, without bringing this £3000 into hotchpot.]

Prec. in Chan. 269. Gilb. Rep. 12. 2 Vern. 615. Viner, vol. 7. p. 215. ca. 11. vol. 11. p. 176. ca. 2. 2 Eq. Ca. Ab. 263. ca. 4.

Sir William Hedges, on his marriage with his first wife, with whom he had a portion of £4500, settled lands of £500 per ann. upon himself for life; remainder to his said wife for life; remainder to all the children of that marriage, and the heirs of their respective bodies, as tenants in common. And he had issue by his said first wife, two sons and a daughter; namely, the respondents and Susannah.

In 1687, Sir William intermarried with the appellant Dame Ann, his second wife; and by articles executed on that occasion, it was agreed, that he should receive out of her fortune £3000 in money, and £600 per ann. during their joint lives; but that she should have nothing out of his estate, either by the custom of London, of which city he was a freeman, or otherwise howsoever, save only what he could give her by his will.

[458] In consequence of this agreement, Sir William actually received the £3000 in money, and enjoyed the £600 per ann. until the time of his death; and, in consideration thereof, he constantly declared, that his children by Dame Ann should have the £3000 over and above their shares of his personal estate, which they would be entitled to by the custom of London. And by this marriage, Sir William had issue only two sons; namely, the appellants John and Charles.

On the 15th of April 1698, Sir William made his will, and thereby gave to the appellants John and Charles the £3000 which was then due from the Mercer's Company on their bond; he also gave to his daughter Susannah £4000, and, after some small legacies to other persons, he gave the residue of his personal estate to be equally

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