Page:The English Reports v1 1900.pdf/1243

his daughter Henrietta. Maria, at her age of 21, or day of marriage, which should first happen, £2500. And declared his will to be, that if his said son Charles should die without issue male of his body then living, or which might afterwards be born, that then his said daughter should have and receive at her age of 21, or day of marriage, which should first happen, the sum of £3800 over and above the before mentioned sum of £2500; and in case the contingency of his said son's dying without issue male should not happen before [136] his said daughter's age of 21, or her day of marriage, that then she should receive and be paid the said sum of £3500 whosoever it might after happen. And the testator appointed his said wife Dorothy, the appellant Andrew Wither his brother, and John White, Esq, his uncle, his executors.—The testator then devised all his lands and tenements in the county of Southampton and elsewhere (except his freehold lands and tenements in the parish and tithing of Kingsclere in the said county) to his said son Charles, and the heirs of his body; remainder to the appellant Andrew Wither, and his heirs; and directed, that whilst his said son should be under age, his executors should receive the profits of his said estate, towards the performance of his will. He also declared, that the lands and premises immediately before devised, should be liable to, and chargeable with, the payment of the said $£500 thereby willed to his said daughter, whenever it might become due and payable.—And to the intent that all his debts, legacies, and funeral expences might be justly paid, and his will punctually performed, be devised all his said several freehold farms, and all his lands and tenements in Kingsclere, to the said Dorothy his wife, and the appellant Andrew Wither, and to the said John White, and their heirs, upon trash, to employ the yearly profits thereof towards satisfying his debts and performance of his will; and thereby empowered his executors, as they should see occasion, to mortgage or sell all or any part of his lands and premises in Kingsclere, for the more speedy execution of his said will; but that such part thereof as should not be disposed of, should, after the fulfilling of his will, be to the use of his said son. Charles and the heirs of his body; and for default of such issue, to his brother the appellant Andrew, and his heirs for ever. And the testator by his said will, authorised his executors to cut down and sell any of the timber trees growing on any of his lands in the county of Southampton, or elsewhere; (except such trees as should be an ornament or defence to his capital messuage of Hall, or any other of his messages or houses;) and declared, that whereas it was his intent and meaning, that upon default of heirs of the body of his said son Charles, his said brother, the appellant Andrew Wither, should inherit and enjoy all his copyhold messuages and lands in the tithing of Itchenswell, in the said parish of Kingsclere, or elsewhere, and all his other lands and premises wherein or to which he had, or might have at his death, any right, title, or interest, either in law or equity; if therefore his said daughter Henriette Maria, her heirs or assigns, should not at the proper costs and charges of the appellant Andrew Wither, surrender the said copyhold lands and promises to the use of the said Andrew Wither and his heirs; and make such other conveyances in the law, which the appellant Andrew Wither should be advised to, for the better securing and settling of the said copyhold, and other the said lands and premises, according to the true intent and meaning of such his will; that then the said legacy of €3500 should determine and he void. And he gave the residue of his [137] personal estate, after payment of bis debts and legacies, to his said son Charles.

Soon after making this will the testator died, leaving the said Dorothy his wife, the said Charles his only son, and the said Henrietta Maria his only daughter; whereupon all the executors proved the will, and possessed themselves of the testator's personal estate, and entered upon all the real estate, and received the rents and profits thereof, and continued so to do, till Charles Wither the son attained his age of 21; and applied the said rents and profits towards payment of the testator's debts and legacies.

John White, one of the executors, afterwards died; whereby the executorship and trust estate survived to the said Dorothy, and the appellant Andrew Wither.

The said Charles Wither, the son, intermarried with the appellant Frances, and the respondent Dr. King with the said Henrietta Maria, the testator's daughter, after she had attained her age of 21; who afterwards, and in the life-time of her brother, died; leaving issue by the respondent Dr. King, several sons and daughters.

On the 20th of November 1731, the said Charles Wither the son died; leaving the appellant Frances his widow, and the appellants Dorothy, Henrietta Maria, and Ann, bis three daughters and coheirs at law; but without leaving any issue male of his body