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interest, should not be sufficient to pay the same, then it was further ordered, that the Master should enquire what real estate the testator Charles Wither the father died seised of, in fee simple in possession, or reversion, and whether such reversion had been barred or not; and as to such estates whereof he died seised in fee simple in possession, or in reversion, whereof the reversion had not been barred, the Master was to see such convenient part thereof sold or mortgaged, as would be sufficient to raise the deficiency, and the monies arising by such sale or mortgage were to be applied accordingly; in which sale or mortgage all proper parties were to join, as the Master should direct: and the Master was to tax all parties their costs of suit, which were to be paid to them out of the said testator's estate.

From this decree the appellants appealed; and on their behalf it was argued (D. Ryder, N. Fazakerley), that the additional portion of 3500 being given to Henrietta Maria, the respondent's late wife, upon the contingencies of Charles Wither the son's dying without issue male, and of her marrying, or attaining 21; both those contingencies ought to have happened in her life-time, before such additional portion could vest in her, so as to be transmissible as a charge on the real estate, to her administrator: and as both these contingencies did not happen, in her life-time, the additional portion ought not, in favour of the respondent as her administrator, to be raised out of the real estate, to the prejudice of the appellants, the coheirs at law, but ought to sink into the inheritance; agreeable to those determinations in Courts of Equity, where portions having been given to younger children, payable out of lands at a future time, before which time such children have died, such portions have not been held to have rested, and ought not to be raised for the benefit of the executes or administrators of such children, but to sink for the benefit of the heirs, or remainder-men. That in the present case, the additional portion not being given, or made payable by the will to the executors or administrators of Henrietta, shewed, clearly the testator's intention that it should not be paid out of his real estate (which he had entailed in his family) to a stranger, who had before received a portion of £2500 with her; but had made no additional settlement in prospect of this £8500, nor could be obliged to make any distribution thereof among the children of Henrietta, in case the same should be paid to him.—As to the objection, that Henrietta had a contingent interest or a possibility vested in her with regard to this additional portion of £3500 though she died before both the contingencies actually happened, and that contingent as well as vested interests are transmissible to representatives: it was answered, that there is no instance where an executor or administrator has had any advantage against an hair at law, to charge his estate upon such a contingent interest, or possibility; though there may have been [140] cases in which an executor or administrator has bad the benefit of such a contingent interest or possibility, against an executor or administrator; and that many cases have been determined upon that precise distinction between a contingent charge on a real, and on a personal estate. It was therefore hoped, that the decree would be reversed.

On the other side it was said (J. Willes, J. Strange), that the single question seemed to be, Whether as Henrietta died in the life-time of her brother Charles, the additional portion, or legacy of £3500 given her on the contingency of his dying without issue male living at the time of his death, belonged to her representative, or became a lapsed legacy by her dying before her brother? As to which, it was insisted to be plain upon the face of the testator's will, that his intention was to make a provision for his daughter, not only by giving her a portion of £2500, payable at 21, or marriage, but likewise the additional portion or legacy of £3500, payable on the contingency of her brother Charles's dying without issue male then living. That Henrietta's dying in her brother's life-time was not any objection against the respondent's right to this additional legacy, because it was expressly directed by the will, that though the contingency should not happen before her attaining 21, or before her marriage, yet the said additional portion or legacy of £3500 should be paid whenever the said contingency should afterwards happen; without annexing any restriction thereto of the daughter's being then alive. And in another part of his will, the testator expressly declared his meaning to be, that the lands and premises thereby devised to his son Charles, with remainder in fee to his brother Andrew, should be liable to, and chargeable with the payment of the said £3500 whenever it might happen to become due and payable; which showed the strongest intention in the testator, that this £3500 should be a charge on his real estate,