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minded to give James a greater estate than for life, in any part of his freehold estate, and therefore having tied him up by the settlement, as to the lands in question, so in his devise to him by his will of the lands in Leitrim, etc. which were not comprised in the settlement, he made him tenant for life only, with like remainders to his sons as were limited in the settlement of the other lands. But in the other parts of his will, where he intended any thing for his son James, he gave it to him with express and particular words of limitation, such as, to him, his executors, and assigns, or to him for his life, and after to his first son, etc. And therefore, in all probability, he would have been as express here, as in other parts of his will, if his purpose had been to give James any further estate in these lands, than he would have by the settlement. It likewise seems evident, from the introductory words of the subsequent clause, whereby the house and park at Rathline, part of the settled estate in question, were devised to the testator's wife for life, viz. if my son James shall die without issue male, my said wife surviving him; that he could never intend to give an estate in tail general to James, whereby the limitations of his will might be defeated: but the construction contended for by the other side, was, by an implication only, to enable James to defeat all the limitations of any part of the settled estate, either to the testator's wife, or his daughter Frances, for whom it appeared to have been [135] his principal view to provide. And therefore, when the testator in the clause in question, recited the settlement whereby he had settled this estate on his son James and his issue, bis saying, on failure of issue of the body of the said James, ought to be understood in the same manner, as if he had said, on the determination of the estate limited by such settlement.

After hearing counsel on this writ of error, and also the unanimous opinion of the Judges present, touching certain points of law to them proposed;^[1] it was ordered and adjudged, that the judgment given in the Court of Exchequer, and the judgment given in the Exchequer Chamber affirming the same, should be reversed. (Jour vol. 24. p. 248.)

Charles Wither, the father, having issue by Dorothy his wife one son, named Charles, and one daughter, Henrietta Maria, the wife of the respondent Dr. King; and being seised of a real estate of £1000 per ann. and possessed of a considerable personal estate, and intending to provide a portion for his daughter, and likewise to make an additional provision for her, in case his son should die without issue male living at his death; did, by his will, dated the 3d of June 1697, inter alia, give and bequeath unto