Page:The English Reports v1 1900.pdf/1264

Christian had issue of the marriage John Bor, his eldest son, Gerard, his second, Jacob (the respondent) his third, and William, his fourth son; and on the 8th of June 1733, he made his will, and after reciting the powers he had under his marriage settlement, he charged all his lands, tenements, and hereditaments comprised in the settlement, with £2000, which he thereby bequeathed to his three younger sons, viz. Gerard, Jacob, and William, equally to be divided between them. And as to Ballynunry, and Kilcoole, and Pelletstown, with its sub-denominations, and the mill thereon, and the houses in Michael's-lane, School-house [169] lane, and Bor-court, he devised the same to Arthur Baldwin, Esq. and Editha his wife, under several trusts; and particularly as to Ballynunry and Kilcoole, to the sole use of his son Gerard for life; remainder to the trustees to preserve contingent remainders; remainder after Gerard's death to his first and other sons in tail male; and in default of such issue, to the respondent Jacob for life, with like remainders to his first and other sons in tail male; and in default of such issue, to John the testator's eldest son for life, and to his first and other sons in tail male; remainder to his own right heirs. And as to Pelletstown, and the houses in Michael's-lane, School-house lane, and Bor-court, to the use of his sons Jacob and William, during their lives, to be equally divided between them; remainder, as to the moiety of them divided to the respondent, to his first and other sons in tail male; and in default of such issue, then to William for life, remainder to his first and other sons in tail male; and for want of such issue, to John the eldest son for life, remainder to his first and other sons in tail male; and in default of such issue, to Gerard for life, remainder to his first and other sons in tail male, with remainder to the testator's right heirs. And the other moiety of Pelletstown, and the houses, he devised, after the death of William, to his first and other sons in tail male; and for want of such issue, to John for life, remainder to his first and other sons in tail male; and for want of such issue, to Gerard for life, remainder to his first and other sons in tail male; and for want of such issue, to the respondent Jacob for life, remainder to his first and other sons in tail male, with remainder to the testator's right heirs.

And the testator considering that Ballymunry and Kilcoole, which he devised to Gerard, (then worth above £100 a year, and which, upon the expiration of some leases, would be worth £300 a year,) was a large provision for Gerard, in case he had not a right to dispose of Pelletstown, and the houses in Dublin, as he by his will designed, inserted the following proviso:

Provided always, and it is my further will and true meaning, that in case my title and estate of and in the said lands of Pelletstown, and my said houses in Michael's-lane, School-house lane, and Bor-court, is and so stands, that I cannot leave and devise the same in such manner, and to such uses, as by this my will I design and is intended; then and in such case, the share and part of the said sum of £2000 mentioned in my settlement, by this my will left and devised to and intended for my said son Gerard, shall not go to the said Gerard, but shall go, and I do hereby leave the same, equally to be divided between my said two younger sons Jacob and William, share and share alike, any thing before in this my will contained to the contrary notwithstanding.

And the testator appointed his wife Helena his sole executrix, and guardian to his sons, who were then all minors.

On the 11th of June 1733, the testator died, and on his death the lands of Pelletstown, and the houses in Michael's-lane, School-[170]-house lane, and Bor-court, under the limitations in Margaret Bor's will, vested in John Bor as his eldest son and heir male; but Helena entered and received the profits, as guardian under the will of Christian, down to the death of John, who never received any part of them.

Gerard became seised of Ballynnnry and Kilcoole, under the will of his father Christian.

In 1739, John Bor attained 21, and soon after, as well to carry into execution his father's intentions, as to prevent any disputes in the family concerning the testator's want of power to devise Pelletstown and the houses, he, for the consideration of £900 paid to him by Helena, by deed dated the 27th of March 1739, conveyed to William Williams, and his heirs, Pelletstown, and the houses in Michael's-lane, School-house lane, and Bor-court, in trust for the respondent Jacob, and William Bor, and their issue, under the same limitations as in Christian's will; and covenanted to levy fines and suffer recoveries, and accordingly did levy fines thereof, but neglected to suffer recoveries.

As to the Ballyawley and Edmonstown estate, of which a remainder was limited