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to my executor, to employ it in performance of my will; and if there be any overplus in the sale of the excepted parcels of Croft, I give that also to my executor, towards performance of my will. I hope I have made a sufficiency for performance of my will; and if there be any overplus [of my personal estate] [see Note 5, p. 1176] after the full performance, I give £200 of it to my executor, for his own use; and the residue I give to my daughter the Lady Drake, and my grandchild Mary Drake, equally to be divided between them.—

The testator then devised the manor of Little Oakley, the estate of Sudborough Park, and the houses in Little Britain, to his said nephews Charles Bertie and Ralph Freeman, and their heirs, during the life of Lady Drake, upon trust, to dispose of the rents and profits thereof, unto such persons, and in such proportions as Lady Drake should by writing appoint, exclusive of her husband; and so as he should not intermeddle therewith, or have any controuling power thereof. And from and after the decease of Lady Drake, to her first and other sons in tail male; and for want of such issue, io the testator's nephew John (afterwards Duke of) Mountague, and the heirs of his body; with remainder to the said Mountague Gerard Drake, in fee. And as to the said manor of Croft, after the end, or other determination of the said ten years lease, the testator devised the same to his said nephews Charles Bertie and Ralph Freeman, and their heirs, during the life of his daughter the said Lady Drake, for her separate use, exclusive of her husband; and from and after her decease, in case she was [55] not disturbed in the enjoyment of the jointure, settled upon her by Sir William Drake her former husband, to the said Mountague Gerard Drake, for life; with remainder to his first and every other son in tail male; remainder to the first and every other son of the said Lady Drake; and for want of such issue, to the said John (afterwards Duke of) Mountague, in fee. The testator then taking notice of a lease which he had from the crown, of a third part of certain profits arising out of lead mines in Derbyshire, devised the same to his said daughter Lady Drake, for so many years of the term then to come therein as she should live; and directed the remainder to go along with his personal estate to his executor, to enable the performance of his will.

The testator, at the time of making his will, had only one child living, namely, the respondent Lady Drake, who, by Sir William Drake, her first husband, had two children, viz. the appellant Dame Mary, and Mountague Drake, who died in the testator's lifetime, leaving issue the said Mountague Gerard Drake.

On the 26th of August 1706, the testator died, leaving Lady Drake, his only surviving child and heir at law; but between the time of making his will, and the time of his death, he had considerably reduced his debts, and improved his personal estate; so that at the time of his death, it amounted (exclusive of the specific legacies) to £11,038 15s. 10d. and which, after satisfying what was due on both the mortgages, and all other the testator's debts and legacies, left a clear balance of £547 11s. 4d.

In Trinity term 1707, the appellants brought their bill in Chancery, in order to have the £8000 raised out of the ten years term, and to compel a sale of the excepted lands; insisting, that this £8000 and the monies to arise by such sale, were to be taken as personal estate; and that the same, together with the surplus of the other personal estate, ought to be equally divided between Lady Tyrwhitt and Lady Drake.

Mr. Trotman and Lady Drake thereupon filed their cross bill, for an account of the personal estate, and of the rents and profits of the real estate, and to have the personal estate first applied in payment of the testator's debts and legacies; insisting, that the personal estate, exclusive of what should be raised out of the real estate, was to be applied in discharge of all the debts and legacies; and that even the mortgages ought not to be satisfied out of the real estate, unless there was a deficiency of personal assets: and in that case only, so much ought to be raised out of the real estate, as should be requisite for the payment of debts and particular legacies left by the testator; that the rents and profits of the Croft estate ought to be accounted for to Lady Drake, as the testator's heir at law; and that no sale should be made of the excepted parcels, but for payment of such debts and legacies as the personal assets in the hands of the executor would not extend to satisfy.

On the 17th of February 1709, both these causes were heard before the Lord Chancellor Cowper; when his Lordship declined giving judgment upon any of the matters insisted on, but ordered, [56] that fac simile copies of the testator's will and codicils should be left with him; and that, in the mean time, the Master should take