Page:The English Reports v1 1900.pdf/1203

new debt of £4000 was contracted: for the will was made the 30th of March 1668; the new debt of £4000 was contracted the 6th of June 1668; and the codicil, which is a new publication of the will, was made the 21st of June 1668: so that if the new debt of £4000 was the only debt that was owing at the testator's death, and was contracted before the codicil, then, by the express words of the will, as being new published, this debt of £4000 was the very debt which was to be paid precedent to the vesting of the estate in Evers Armyne.

Upon the whole, the special verdict has not found the case, and consequently the judgment upon it is nothing to the purpose; or, if it be to the purpose, it is in favour, and not to the prejudice of the respondent.

Note also, the judgment in this case was not unanimous, there being only two Judges against one, although the facts were so untruly stated by the special verdict.

John Sutton, having purchased the inheritance of several lands and tenements in Suffolk, in the name of his brother Thomas Sutton, and being seised in fee of the Chequer Inn, in Holborn, made his will in July 1696, and thereby directed, that his nephew Thomas Sutton, who was son and heir of his said brother, then deceased, and the person in whom the legal estate of the said lands was then vested, should convey and assure the same to certain trustees (of whom the relators were the survivors) and their heirs and assigns for over, for the uses, trusts, and purposes contained in his will; which, if he should refuse to do, or to acknowledge and declare the said trust thereof, by some deed or writing under his hand and seal, executed in the presence of two or more credible witnesses, in such manner as the said trustees should lawfully and reasonably think fit and require, within twelve months next after the testator's death, then and from thenceforth, after such refusal, all the gifts, legacies, and bequests in the said will given, devised, and bequeathed to the said Thomas Sutton, and the heirs male of his body lawfully to be begotten, should be frustrate, void, and of none effect, to all intents and purposes whatsoever. The testator then gave to his said nephew all his freehold and copyhold lands in Suffolk, for and during the term of his natural life; and, after the decease of the testator's wife, he gave him also the Chequer Inn, in Holborn, for and during the term of his natural life; and after his death, to the first son or issue male of his body lawfully begotten, and to the heirs male of the body of such first son; and for default of such issue, to the second son or issue male of the body of the said Thomas Sutton, his nephew, lawfully to be begotten, and to the heirs male of such second son, lawfully to be begotten, for ever, subject to a proviso, that the said Thomas Sutton, or his assigns, and the heirs male of his body, should not do or commit, or suffer to be done or committed, any waste upon the promises; and should not impeach, question, or endeavour to defeat, avoid, destroy, invalidate, or obstruct the payment of all or any the annuities, legacies, or charitable bequests in the said will. And from and immediately after the death of the testator's wife, and of his said nephew Thomas Sutton, without issue male of his body, or after the death of such issue male, he devised all the said premises to the said trustees, their heirs and assigns, for ever, for certain charitable purposes in the said will particularly mentioned.

[76] In 1700 the testator died, and soon afterwards his wife also died; whereupon