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given by his will; and after such payments made, then in trust, to purchase other lands with the surplus of the money arising by the sale, to be conveyed to the said Gyles and Smith and their heirs, upon the trusts following, viz. if such surplus should not exceed £400, then, as to all the lands so to be purchased, or so much of them as should be valued in the same purchase at £400, in trust for his sister the respondent Martha Barker for her life; and after her decease, in trust for the appellant, one of the sons of the testator's brother Sir William Barker, and his heirs; and as to the surplus and residue, if any should be, of the lands and tenements so to be purchased as aforesaid, to the use of or in trust for Jerome Barker and the appellant, and the survivors and survivor of them, their heirs and assigns for ever, to be divided equally between them, share and share alike: and Gyles and Smith were made executors of the will.

The testator did not die till December 1722; before which time, he greatly increased his personal estate.

Jerome Barker dying without issue, in the life-time of the testator, the appellant insisted that he was, by survivorship, become entitled to the whole manor of Everleigh, and all the surplus of the testator's personal estate, after payment of his debts, funeral [105] charges, and legacies: and accordingly, in Easter term 1728, he exhibited his bill in Chancery against Gyles and Smith, the trustees, and the other respondents, for an account of the whole personal estate of the testator, and of the debts which he owed, and of the surplus of the personal estate, over and above the debts, legacies, and funeral expenses; and prayed, that if the personal estate should not be sufficient to pay the same, yet that the manor of Everleigh might not be sold, but be conveyed by Gyles and Smith to the appellant and his heirs; he thereby offering, that the same should be charged with the payment of £20 per ann. to the respondent Martha Barker for her life.

The defendants Gyles and Smith, by their answer, said they were advised, that if Jerome Barker had survived the testator, he and the appellant would have been tenants in common of the lands directed by the will to be purchased, by virtue of the words, equally to be divided between then, share and share alike; but that Jerome dying before the testator, the moiety of the surplus intended for him, was, by that means, left undisposed of, and, as such, belonged to the testator's representatives; but, whether the same should be taken as a real estate, being directed to be laid out in land, or whether it should be looked upon as money, and part of the testator's personal estate, they submitted to the judgment of the Court.

The defendants Blake and his wife, by their answer, insisted, that she was heir at law of the testator; and that if he had made no will, or had devised part of his real estate in such manner that it was become a void devise, they claimed the same in right of Penelope, as his heir at law.

The defendant Martha Barker, by her answer, submitted, that the $400 directed to be laid out for her benefit for life, should be charged upon the manor of Everleigh, so far as the interest thereof, at the rate of £5 per cent. should be paid to her for life.

On the 4th of June 1725, the cause came on to be heard before the Lord Chancellor King; when his Lordship was pleased to decree, that an account should be taken of the testator's personal estate, and of the rents and profits of the real estate, received by the defendants Gyles and Smith since the death of the testator; and that an account should be taken of the debts owing by the testator at the time of his decease, and of the legacies devised by his will, and of his funeral charges: and it was further ordered and decreed, that the testator's real estate should be sold to the best purchaser, to be allowed of by the Master; and after payment of the testator's debts, legacies, and funeral expences, and the costs of the suit, the surplus of the testator's personal estate, and of the rents and profits of his real estate, and of the money which should be raised by sale of the real estate, should be laid out in the purchase of lands, with the approbation of the Master, in the names of the defendants Gyles and Smith; [106] and that the lands which should be purchased therewith, should be conveyed to the said defendants Gyles and Smith and their heirs, upon trust, as to part thereof, which should be of the value of £400 to the use of the defendant Martha Barker, during her life; and after her decease, to the use of the appellant and his heirs for ever: and as to the residue of the lands and tenements to be purchased as aforesaid,