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determined, yet that was not material; because, according to the established rule of law, a devise of land refers to the time of making it; and therefore, it was to be regarded how these estates stood at the time of the testator's making his will, and not how they stood at the time of his death. Accordingly, it was observable, that at both these periods, the legal estate of the reversion in fee of all the lands by virtue of the settlement of 1672, was vested, and still continued in trustees; and, consequently, they were affected by that settlement; and the estate which passed thereby was still a subsisting estate, and therefore could not be said to be out of settlement.

That it was clear the testator meant something by the words out of settlement; and if any thing, they must be taken in a restrictive sense, to prevent the lands comprised in these settlements, from passing by the will; and if the words would bear this sense, the known rules of law must take place, which in case of a devise, will suffer no words to be rejected, if they can have any reasonable construction; especially such words as the testator himself seems to have laid a peculiar stress upon, by repeating them no less than three times, with great care and anxiety. But if these words, out of settlement, did not clearly show the testator's intention to exclude these lands out of the devise, yet they rendered the will doubtful, whether they were meant to be excluded or not; and if so, another known rule would take place, that an heir shall not be disinherited by doubtful words; and this rule ought the rather to hold in the present case, because whatever part of the testator's real estate the respondent Lytton did not take by the will, he was admitted to take an equal share of, as one of the co-heirs.

And that as all the lands now in question, were at the time of the will in settlement, so the testator had new purchased lands, and other lands out of settlement; and since the words of the will [30] plainly imported a distinction of one part of his estate from the other, that which he would devise, from that which he would not, and as he had estates to answer that distinction, the argument in favour of the present appellant was thereby greatly strengthened; and consequently the decree, by giving the respondent Lytton, as well the lands in the settlements of 1665 and 1672, as the unsettled lands, seemed to go against the plain and direct words of the testator's will.

But on behalf of Mr. Lytton, the respondent in both appeals, it was insisted (E. Northey, J. Pratt), that as Sir William Lytton had no issue male, the inheritance of the whole estate was, at the time of making his will, in his power to dispose of by deed or will as he should think proper, and therefore out of settlement; and that it plainly appeared to be the intent of his will, that all the estates which he had power to devise or dispose of, should pass thereby, in order to preserve them in his name, and blood; accordingly the respondent, being his eldest sister's grandson, was, by the will, obliged to take upon him the name of Lytton; and it could not be imagined, that when the testator was laying a design to preserve the estate in his own name, he intended that all the ancient estate of the family should go to his female heir at law, and not of his name, when he had the same power to dispose of that, as of any other part of his estate. That by his will, he had actually given part of this estate to his wife, to whom he before had made a jointure of other part of it; so that he could not be said to be very superstitious, not to dispose of any part of the estate which he had from his ancestors. That by his will, the testator had made a provision for a daughter if he should have one, which it could scarcely be thought he would have done, had he intended all the ancient estate of the family to go to such daughter; and while he was at the same time endeavouring to preserve his name, to give the person who was to take that name, so small a share of his ancient estate, and to leave that too, with a charge of £4000 upon it.

And accordingly, after hearing counsel on both these appeals, it was ordered and adjudged, that the same should be dismissed; and that the decree therein respectively complained of, should be affirmed. (Jour. vol. 18. p. 640.)