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have no pretence to the purchased estate, as Robert Wynn was seised thereof in fee-simple; besides, he claimed by his bill no other than the estate tail, of which the recovery was suffered; nor could it be imagined that Robert would be at the expense of suffering a recovery of lands whereof he was seised in fee-simple. That though there might be general words in the deed, yet the same being executed after suffering the recovery, and designed to lead the uses thereof, it could extend to no other or greater estate, than what was strictly comprehended in the recovery; nor could the covenant to stand seised, go any further than to the lands in the recovery. And that no more than the old estate was contained in the recovery was very evident, by comparing the last recovery with the old conveyances of the family, and with fines levied above an hundred years ago; from whence it would appear, that there was not a single acre of land comprised in the last recovery, more than there was in those ancient fines; nor could the deed, declaring the uses of the recovery, pass more lands than were comprised in the recovery itself. That the appellant ought not to perplex the respondent at law, after he [99] had chosen to proceed in the manner prescribed by the first decree; and after the matters in dispute had been fully heard and determined against him in that court, where he himself bad submitted they should be determined. And therefore it was hoped, that the decree and report would be affirmed, and the appeal dismissed with costs; especially as the respondent had no costs below, though he was the testator's heir at law.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and that the several orders, report, and decree therein complained of, should be affirmed. (Jour. vol. 22. p. 615.)

William Payne, being seised of a real estate, and possessed of a considerable personal estate, on the 10th of February 1716, made his will, and duly published the same in the presence of three witnesses; and, as touching his worldly estate, he gave and disposed of the same as follows, viz. he gave to his sister Carolina Payne £20 per ann. to be paid her quarterly during her life, out of the revenues of his estate: and as concerning all the rest of his estate, both real and personal, after his debts and funeral charges paid, he gave, devised, and bequeathed one moiety, or equal half part thereof, to his sister, the appellant Mary Stratton, for her life; and after her decease, to the heirs of her body lawfully begotten, or to be begotten, equally among them all, sons and daughters alike; and the other moiety, or equal half of his estate, real and personal, he gave and bequeathed the same to his sister, the respondent Ann Payne, and to the heirs of her body lawfully begotten, or to be begotten; and for want of such issue, or heirs of her body, as aforesaid, he gave and bequeathed the same to the children of his sister, the appellant Mary Stratton, equally among them, and to their heirs and assigns for ever, immediately after the decease of his said sister Mary, and not before; and appointed his said sisters, the appellant Mary and the respondent, joint executrixes of his said will.

The testator died on the 12th of February 1716, unmarried, leaving the appellant Mary, the respondent Ann, and the said Carolina Payne, his sisters and coheirs at law; and immediately after his death, the appellant Mary and the respondent Ann proved the will in the Archbishop's court at Canterbury, where the original was left, and remained there from that time till the hearing of the cause in May 1720.

[100] The respondent being advised that she was, by the said will, seised of an