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26th of June 1728, and the appellant and the tenants of the premises not appearing, though they were served with process to hear judgment, it was ordered and decreed, as between the respondents Lady Catherine Jones, Dame Frances Hewett, Peter Hawker and the appellant, and the respondent Burman, that a partition should be made of the lands into moieties, and that a commission should issue for that purpose; one moiety whereof was to be allotted to the appellant, and the other moiety to be subdivided into four parts, of which one fourth part was to be allotted to the respondent Lady Catherine Jones and her heirs; one other fourth part to the respondent Lady Hewett and her heirs; another fourth part to the respondent Peter Hawker and his heirs; and the other fourth part to the respondent Thomas William Burman and his heirs; subject to the annuity of £20 per ann. to the respondent Fiennes Twisleton for life, and £20 per ann. for a perpetual charity, mentioned in the will of the said Frances Ellis; and mutual conveyances were directed to be made by the parties for making the partition effectual, and the tenants were to attorn and pay their rents according to such partition; and as to the costs of the said partition, the appellant was to pay one moiety, and the respondents the other moiety thereof; and as to the costs of the subdivision, the same were to be equally paid by the respondents. And it was further decreed, that an account should be taken by the Master, from the death of Cecil Fiennes, of the rents and profits of the moiety to which the plaintiffs in the cause and the said Burman were entitled, and that the appellant should account for such part thereof as he had received; and the tenants Izod, Clark, and William White were to account for what was due from them, and the receiver appointed by the Court was to account for what was in his hands; and the appellant was to pay the respondents Lady Catherine Jones, Dame Frances Hewett, and Peter Hawker their costs, so far as he had contested their right and title to the said moiety. And this decree was to be binding upon the appellant and the said tenants, unless good cause was shewn to the contrary.

The appellant, upon the usual application, and paying the costs of the default, obtained an order for liberty to shew cause against the decree, upon the hearing of his cross cause; and ac-[118]-cordingly, both causes were heard together before the Lord Chancellor King, on the 16th of November 1728, when his Lordship was pleased to confirm the former decree against the appellant, as to all matters but the costs of suit, which the appellant was not to pay, and his cross bill was dismissed without costs.

From this decree the appellant appealed, insisting (P. Yorke, T. Lutwyche), that by the will of Frances Ellis, her daughter Cecil Fiennes was tenant in tail of a moiety of Norton, or of the trust thereof; and that by her fine and recovery in 1693, which was done upon great advice and consideration, she became seised in fee; or at least, of such an estate and interest as she had power to dispose of, and which was actually bound by her articles with the appellant. But supposing that Cecil could not by her fine and recovery bar the remainders limited by her mother's will, yet, by the death of Francis Twisleton, one of the four devisees in that will, without issue, Cecil was unquestionably seised in fee of his fourth part, as having the reversion in fee; and this fourth part, at least, was bound and affected by the articles. That therefore the appellant ought to have the benefit of those articles, so far as Cecil Fiennes had a power over the estate, she having had a beneficial agreement under them; and yet, as the decree stood, the appellant was debarred of any benefit under the articles, without the least consideration for the advantages which Cecil derived from them.

On the other side it was argued (C. Talbot, N. Fazakerley) to have been the testatrix's intention, as appeared clearly by her will, that the legal estate, during the life of Cecil Fiennes, should remain in the devisees in trust, to enable them to pay the legacies and annuities thereby given, and to apply the surplus profits during her life for her proper use, and which was the more reasonable, because she was then wider coverture. That it also appeared to have been the intention of the testatrix, that after the death of Cecil Fiennes, a legal estate tail should vest in the heirs of her body, as purchasers, and not by descent; and it was apprehended, that the construction contended for by the appellant, was contrary to this intent, by changing the equitable interest of Cecil in the surplus profits for her life only, into an estate tail. That this construction was not supported by any rule of law, there being no instance where the legal limitation of an estate to the heirs of the body of any person, hath been united to a prior equitable limitation of the surplus profits of such estate to the same person