Page:The English Reports v1 1900.pdf/1258

In 1735, John Leslie died, leaving Anne his wife, who survived him, and afterwards intermarried with the respondent John Blenerhasset; and also leaving the appellant Lucy, his only child and heir ab law, thon a minor, about six years old: but before his death he duly made his will, and thereby devised his whole real estate to the appellant Lucy, and appointed his uncle, the Reverend George Leslie, sole executor thereof, and guardian of his said daughter; who, upon the death of her said father, became entitled to all the said lands and promises, in the counties of Kerry and Cork, comprised in the original grant from King William III. to the said Doctor John Leslie, her great grandfather.

Soon after the death of the said John Leslie, the respondent James Leslie his brother, who was the second son of the before named James Leslie, set up his claim to all the said lands in the county of Cork, and to the greatest part of the said lands in the county of Kerry, which he insisted were not comprehended in any of the fines and recoveries levied and suffered upon the marriage of the said John Leslie with the said Anne Crosbie, and that he was therefore entitled to the same, as a remainder-man in the will of the said James Leslie; for that such remainder, upon the death of the appellant Lucy's father, without issue male, had immediately vested in him under the said will.

Accordingly, in Hilary Term 1736, the respondent Dr. Leslie exhibited his bill in the Court of Exchequer in Ireland, against the appellant Lucy and George Leslie, son of the said George Leslie her guardian, and against the said William Crosbie, Pierce Crosbie, John Blenerhasset, and Anne his wife, Robert Leslie, John Goodman, Henry Goodman, William Connor, Daniel Connor, John Lapp, Augustus Carie, Thomas Weeks, and Joseph Bennet and Elizabeth [160] his wife; thereby setting forth the grant from the crown to Dr. John Leslie, and the will of James Leslie the appellant Lucy's grandfather; and that the said John Leslie, the appellant Lucy's father, died seised in tail male of the premises under the said will, leaving the appellant Lucy, his only child; and that upon his death, the premises had come to him the said respondent; and stating the several assignments by which Sir Stephen Rice's mortgage had become vested in the said William Crosbie; and also the mortgages for £300 and £700 made by the said James Leslie of the estate in the county of Cork, and that the first of the said mortgages had by mesne assignments become vested in Richard Goodman who was dead, leaving the defendants Hannah Goodman and John Goodman his executors; and the defendant Elizabeth, wife of the defendant Joseph Bennet, his niece and legatee, who had assigned the said mortgage to the defendants Carie and Weeks; and that the other of the said mortgages was become vested in the defendants William and Daniel Connor, and John Lapp; and also stating that the said John Leslie, the appellant Lucy's father, being disabled for the reasons aforesaid, from making such disposition as he had by his will made of the said lands and premises, he the respondent had applied to the appellant Lucy, and her said guardian, for the possession of the said lands, and to the said William Crosbie for an assignment of Sir Stephen Rice's mortgage; and charging, that the articles and settlement made on the marriage of the appellant Lucy's father, could not prejudice his right or remainder under his father's will; the bill prayed to be decreed to the possession of the said lands, and for an account of the rents and profits thereof since the said John Leslie's death; and to have a redemption of the said mortgages, and that the same might be assigned in trust for him.

The several defendants put in their answers to this bill, and the appellant Lucy, by her answer taken by the said George Leslie her guardian, was made to say, that she knew not whether the limitations in the will of her grandfather, James Leslie, created an estate in tail male in John Leslie her father, or not; or whether, in default of such issue, the remainder in tail male came to the respondent, the same being matter of law but that she had heard and believed, that the said John Leslie had suffered a recovery of all or most of the lands in the county of Kerry. The defendant William Crosbie the trustee, by his answer, said, that if the respondent was entitled to a remainder under the will of the said James Leslie the grandfather, yet as the said James Leslie, at the time of making his will, and of his death, had only an equity of redemption in the said lands, if no recovery had been suffered of any part of them, that remainder under the will was barred in equity by the settlement and mortgage; and that if any part of the lands comprised in the original grant was omitted in the recovery, he believed the same were only sub-denominations of the lands in such recovery, and were comprised under the de-[161]-nominations in the recovery.—The defendants, Blenerhasset and his