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from and after the said 1st of. November, the said estate and mortgages to be and remain to the said Rawlinson and his heirs, subject to the limitations in the said will.

In 1712, the testator died without altering his said will and codicil.

Rawlinson Foord attaining his age of 23, on the 1st of November 1713, entered upon the said real estate; and soon after levied fines, and suffered recoveries thereof, which were declared to be to the use of himself and his heirs; hut apprehending that he had thereby great reason to fear a forfeiture of his estate for life, he granted a lease to one Daniel Grady, of all the said real estate and mortgages, for the farm of 99 years, if he, the grantor, lived so long, in trust for himself, and in order to protect him against any forfeiture.

Rawlinson Foord also possessed himself of the said mortgages and securities for money, and called in great part of the money due thereon, and either retained the same in his own hands, or else placed it out again at interest on other securities in his own name, and received the interest thereof during his life.

[127] In December 1725, Rawlinson Foord died intestate, having never had any issue male, leaving the respondent Ellen his only daughter and heir at law, an infant of the age of nine years, or thereabouts; whereupon the respondent William Jolly, as guardian to the respondent Ellen, took out letters of administration to Rawlinson, and in her right as guardian, entered upon the real estate, and possessed himself likewise of the said several mortgages and other securities for money, and of all the personal estate belonging to Rawlinson at the time of his death; and also got into his custody the several deeds, counterparts of leases, and other writings relating to the said real and personal estate, and set up an absolute title thereto in right of the respondent Ellen.

The appellant being advised that Rawlinson Foord being only tenant for life, and dying without issue male, the real estate and mortgages belonged to him, according to the limitations of the will; and that the leases of the real estate made by his father, then subsisting, would be a bar in his way upon a trial of his title at law: he therefore, in July 1726, exhibited his bill in the Court of Exchequer in Ireland, against the respondents, praying to to decreed to the possession of the paid real estate, and to the benefit of the mortgages, pursuant to the devise to him made by the said will and codicil; and to have an account of the issues and profits of the said estate and mortgages, since the death of Rawlinson Foord; and that the money received by the respondents, might be paid over to the appellant; and for a discovery and delivery of the several deeds, evidences, and writings relating to the said real and personal estate.

To this bill the respondents put in their answers; and thereby admitted the will and codicil, and that Rawlinson Foord had received several sums of money due upon the mortgages, and applied them to his own use as he thought proper; but insisted, that Rawlinson Foord, by virtue of the said will and codicil, was tenant in tail male of the real estate, and was absolutely entitled to the mortgages and personal estate devised to him by the will, which were not capable of being limited or devised over in remainder. They also stated, that Rawlinson had levied fines and suffered recoveries of the real estate to the use of himself and his heirs, and thereby became seised thereof in fee; and being so seised, he died intestate; and that the respondent Ellen, being his heir at law, became entitled, by descent, to the said real estate. They admitted, that the respondent Jolly had received the profits and produce of the said alates and mortgages, since the death of Rawlinson, and had also possessed himself of all the other personal estate which Rawlinson died possessed of.

The appellant having replied to the answer, and the issue being joined, one witness only was examined, viz. Bartholomew Stretch; who deposed, that at the desire of the testator, he drew the codicil, but did not apprehend or believe that the testator intended by such codicil, to alter or change the limitations of the estate, otherwise than as it was limited and settled in the will; but on [128] the contrary, that he apprehended it to be the true intent and meaning of the testator, that the estate should go according to his limitations in the will; and therefore, not thinking himself capable of limiting estates according to law, and for fear of committing an error, he, in the codicil, subjected the estate to the limitations in the will, in such words as were contained in the codicil, but without any design of altering the limitations settled in the will.