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several precedents being insisted on by both sides, the court took time to consider; and desired to be attended with the precedents, and a copy of Sir Herbert Perrott's will.

In the mean time, the defendant Sir Cyril Wych died; and the suit being revived against the appellant his son and heir, and also his executor, he soon afterwards, upon a suggestion of having found new precedents, obtained an order that the cause should be heard again, upon the point of the annuity.

[47] Accordingly, on the 14th of June 1708, the cause was again heard; and on the 21st of that month, the court declared and decreed, that the devise of the said £200 per ann. was not a beneficial devise to Dame Susan, the executrix; but that there was a resulting or implied trust thereof, for the benefit of Dame Hester, the heir at law, after payment of the debts and legacies which the personal estate should be deficient to pay; and that the defendant should have no allowance for the said £200 per ann. other than in aid of the personal estate of Sir Herbert Perrott, in case of such deficiency; and therefore, an account was directed to be taken of that personal estate: and it was further decreed, that the two accounts of the 4th of November and 6th of January 1690, should be set aside; and that the defendant should account for the rents and profits of Dame Hester's estate, which accrued after the death of Sir Herbert Perrott, and were received by Sir Cyril Wych, or Dame Susan, his wife; and upon such account, the defendant was to have all just allowances.

The defendant being dissatisfied with this decree, obtained an order for a re-hearing, upon a suggestion, that he had found a precedent in point; and accordingly, on the 12th of February 1708, the cause was again hoard; when the court were divided, (a new Baron having been made since the last hearing,) the Lord Chief Baron Ward and Mr. Baron Price being of opinion with the plaintiffs; and Mr. Baron Bury and Mr. Baron Lovell, for the defendant; so that no decree could be made; and therefore, according to the course of that court, the cause was, on the 4th of May 1709, heard before the Chancellor of the Exchequer and the Barons, who, having taken time to consider till the 30th of that month, did then deliver their opinions seriatim, and confirmed the former decree.

But, notwithstanding this solemn determination, the defendant appealed; and on his behalf it was insisted (J. Jekyll, S. Dodd), that by the words of Sir Herbert Perrott's will, be clearly intended the rent-charge of £200 per ann. for thirteen years, to be for the benefit of his wife; and therefore, there could be no resulting trust for the heir. That the debts and legacies not being more than the personal estate would satisfy, there was no occasion for creating this rent-charge, but for the wife's benefit; for otherwise, the heir would have come in to that part of the estate without any devise: but, from the many expressions of kindness contained in the will, the testator manifestly meant his wife a benefit; and it was accordingly so accepted and taken by the whole family, and was, indeed, the chief fund for her support; and in consideration of it, the appellant's father settled a jointure upon her of £500 per ann. That the appellant was not able to account for the rents and profits of the respondent Dame Lester's estate, received by his father or mother, because of the great length of time, and the death of the several persons concerned in such receipts. Besides, the accounts stated in 1600 were left in the hands of Dame Hoster's agents, to have recourse to, whenever she pleased, for further satisfaction; and she accordingly acquiesced in those accounts and paid [48] several sums of money on the foot of them, for fifteen years together after she came of age, without making the least objection to either of them; and therefore, under such circumstances, they ought not to have been unravelled or set aside. That the lands given by the will to Dame Susan, in augmentation of her jointure, were of very small value; and were only given to prevent any disputes, as to what particular lands were, or were not parcel of the jointure. And that the decree had made the appellant no allowance for the sum of £161, which was laid out in building the alms-house, on pretence that Cooper was to have but £80, and that this sum was in Dame Susan's hands, as expressed in the will; whereas, for any thing that appeared to the contrary, the testator, between the date of his will, and the time of his death, might have made use of this money for other purposes.

On the other side it was contended (T. Powys, J. Pratt), that there were no words in the will, importing any intention of the testator, that his executrix should have this annuity for her own benefit; on the contrary, it clearly appeared to be designed as an aid or supplement to his personal estate, for the payment of his debts and legacies, and