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that the said £3000 ought to be brought into hotchpot with the orphanage part, and the whole divided equally between the four sons.

On the 26th of November 1708, this cause was heard before the Lord Chancellor Cowper; who was pleased to declare, that the bond taken in the name of the said Sir James Bateman, by the direction of Sir William Hedges, in trust for the defendants John and Charles, being an act done by Sir William in his life-time, ought to be taken as an advancement of the said defendants; and, if they would insist to have Any share of the orphanage part of their late father's personal estate, they ought to bring the same into hotchpot; and therefore decreed an account to be taken of Sir William's personal estate, and that the plaintiffs alone should [460] have the orphanage part thereof between them, unless the defendants John and Charles would bring the £3000 into hotchpot; and if so, then the whole was to be divided equally amongst the four brothers.

From this decree the defendants appealed, and on their behalf it was argued (T. Powys), that by the custom of London, if a freeman dies, leaving a wife and children, his estate is to be divided into three parts; one third the testator has power by his will to give or dispose of as he pleases; another third goes to the wife; and the remaining third to the children; and this last third is called the orphanage part: now the third part which Sir William Hedges had power to dispose of, and which is therefore called the testamentary part, amounted to much more than he gave away by his will, including the £3000, so that if the devise thereof had not been struck out of the will by the accident above-mentioned, the taking a bond for the £3000 by Sir William's direction, in the name of Sir James Bateman, in trust for the appellants John and Charles, could not have hindered them from receiving their shares of the orphanage part of their father's estate, without bringing the £3000 into hotchpot; and the striking out the devise of the £3000 in manner aforesaid, ought not in a Court of Equity to turn to the prejudice of the devisees; but should be taken as still standing in, and making part of the will, and ought to be made good out of the same sum, as part of the personal estate, out of which it ought and would have been paid, if the devise had remained in the will. That the bond taken in Sir James Bateman's name for the £3000, in trust for the appellants John and Charles, on the 5th of August 1701, when Sir William Hedges lay dying, made it manifest, and so it further appeared by the proofs in the cause, that it was not his intention in so doing to advance them within the custom of London, and thereby exclude them from their shares of the orphanage part of his estate; but only the more effectually to secure to them the said £3000 out of that part of his personal estate, which he had power to dispose of as he pleased. That a freeman of London cannot, on his death-bed, out of the orphanage part, give or distribute amongst his children any part of his goods, or personal estate, by way of advancement within the custom; but he may, either by his will, or on his death-bed, by delivering part of his personal estate in the nature of a legacy, causa mortis, prefer one child above another, so far as the same can be made good out of his own testamentary part; which by his will, and according to the custom, he hath a right and power to dispose of as he pleases, and this is precisely the nature of the present case. For, by the proofs in the cause, it fully appears to have been the constant and uniform intention of Sir William Hedges, from the time of his second marriage to the time of his death, that the children of that marriage should have the £3000, over and above their shares, which would be coming to them by the custom of London, of the orphanage part of his personal estate; this being the same sum of £3000 which he had with their mother, the appellant Dame Ann. And accordingly by his [461] will, which was made above three years before his death, he gave that specific sum of £3000 in the Mercer's Company, to the appellants John and Charles, over and above their equal shares with the respondents, of the residue of his personal estate; and that this devise was still legible in the original will remaining in the Prerogative Court of Canterbury, notwithstanding the line which Mr. Nicol had drawn through it. That Sir William was under obligations of justice and conscience to secure this £3000 for the appellants John and Charles; because he had upon his first marriage made a plentiful provision for the respondents, whose mother's portion did not amount to above a third part of the appellant Dame Ann's fortune, which she brought to Sir William; and because no other provision was made