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Thomas Style; and therefore, if Evers Armyne had not, nor could have any legal estate before the full payment of the debts, his recovery was void; because the debts were not yet paid. 2. That the devise of Pickworth to Thomas Style, was not a contingent remainder, but was a vested remainder; it being plain, that the devise to the issue male of Evers Armyne (if he should have any) was a contingent remainder; that a contingent remainder is merely in abeyance or possibility till it happens; and the contingency in this case never did happen, for Evers Armyne never had a son, so that the words of the will might be reason-[72]-ably marshalled to run thus; that Sir Michael Armyne devised Pickworth, after such time as his debts should be fully paid, unto Evers Armyne, for his life; remainder to Style and his heirs, subject nevertheless to this opening, that if Evers Armyne had a son, then to that son and his heirs for ever; for if that case had happened, viz. if a son had been born, it would have taken place and defeated Style; but since it did not happen, and as the devise to Style was a vested remainder, never disjoined from the estate for life of Evers Armyne, the same was not, nor could be disturbed or barred by the common recovery; or, at least, it was a springing or executory devise to Style, to arise upon the contingency of Evers Armyne's not having a son born, and as such not barable by the recovery. The testator's intent therefore was fully expressed, viz. that Evers Armyne should have only an estate for life, to commence after the debts were fully paid; and that Style should have the remainder in fee, to commence after the payment of the debts, and immediately after Evers Armyne's death, if there was no son born. The appellants however were anxious to have the will construed directly contrary to the plain words of it, viz. that Evers Armyne's estate should commence before the debts were paid, only to introduce a nicety in law, that Evers being tenant for life, might dispose of the inheritance, and defeat the reversion to Style; but it was hoped, that the Supreme Judicature would not assist any such construction. As to the pretence of the mortgages and other dispositions of Willoughby, it was insisted, that the appellants, and those under whom they claimed, had full notice of Sir Michael Armyne's will, and of all the trusts and provisions thereby created for the payment of his debts, for that they themselves claimed not only Willoughby, but Ingoldsby also, under the very same will and codicil; and the £4000 lent by Sir Richard Rothwell to Sir Thomas Barnardiston, was lent on the security of Ingoldsby, the manor of Willoughby being thrown in only by way of collateral security; for Sir Richard Rothwell was very well apprised that Willoughby was liable to its proportion of Sir Michael's debts. And as to the pretended difficulty in accounting for the profits of Willoughby, the appellants stood by very easy, and unjustly put the rents of Willoughby into their pockets, without contributing to or assisting Pickworth, while it was labouring to pay the debt of £4000 and interest; the appellants ought not therefore to take advantage of their own neglect; and yet, in this case, they complained without any manner of reason, for the decree had not directed any retrospective account of the profits of Willoughby, which they had so long wrongfully received. (See note, p. 1186.)

[73] On the 21st of May 1717 (Jour. vol. 20. p. 464), counsel were called in to be heard on this appeal; and being directed to proceed, counsel in behalf of John Mortimer, Esq. and Elizabeth his wife, who, upon their petition, were allowed to attend to be heard, if the house thought fit, expressed their fear, "that the petitioners might be precluded, if their Lordships should give judgment without permitting them to be heard;" and therefore desired time to bring an appeal, alledging, "that the said Elizabeth claimed the estate in question, as heir to Evers Armyne. But the other counsel ob-[74]-jecting to the putting off the cause, they were directed to withdraw; and being accordingly withdrawn, a debate ensued, and the question was put, "that this house do now proceed to the hearing of the cause between the appellants and respondent, upon the appeal and answer before this house." And being resolved in the affirmative, the counsel were called in and acquainted therewith; and accordingly the counsel for the appellants and respondent were heard upon the said appeal and answer, The Judges were then directed to give their opinions, "Whether the will of Sir Michael Armyne did extend to include all the debts of the said Sir Michael Armyne?" And having conferred together, the Lord Chief Baron, in the name of them all, delivered it as their opinions, "That the will of the said Sir Michael Armyne did extend to include all his debts." The Judges were also directed to give their opinions, "Whether the estate for life was vested in Evers Armyne, at the time of the SE recovery, before all the debts were paid, so that he could make a tenant to the præcipe?"