Page:The English Reports v1 1900.pdf/1265
by Margaret's will to Gerard, the appellant's father, in default of issue male of John, a recovery was suffered by John.
In September 1741, John Bor made his will, and devised to Boleyn Witney, Esq. and the said William Williams, and their heirs, all his real estate, lands, and reversions, to the use of the respondent for life, remainder to his heirs male, with other remainders over; and died in October following, unmarried and without issue.
By the general devise of this will, the Ballyawley and Edmondstown estate, of which John had made himself tenant in fee by the recovery which he suffered, passed to the respondent Jacob, subject to the charge of £2000 and his mother's jointure of £200 a year, by the settlement of 1717, and to a legacy of £6000 charged upon it by the will for her benefit.
Upon John's death, Gerard the appellant's father, without any regard to Christian's will, claimed the possession of Pelletstown, and the houses in Dublin, under the remainder in Margaret Bor's will; and having attained his full age in November 1741, he soon after filed a bill in the Court of Chancery of Ireland, to be decreed to the possession, and an account of the profits thereof; upon which the possession was given up by Helena, who had entered as guardian of her two sons Jacob and William, and the rents from John's death were accounted for with Gerard, and he immediately after levied fines of Pelletstown, and the houses, and mortgaged them for $3600 to Sir Thomas Taylor, Bart.
William Bor died on the 9th of April 1744 under age, intestate and without issue, and Helena obtained administration to him.
Gerard, on the 26th of January 1744, exhibited his bill against the respondent, and Helena, as administratrix of William, [171] and the trustees in the settlement of 1717, to be decreed to a third of the £2000 charged on the estates of Ballyawley and Edmondstown as portions for the three younger sons, and to one third of another third of the said £2000 as his distributive share of William's proportion thereof; to which bill Helena and the respondent Jacob put in their several answers, and the respondent insisted, that Gerard was not entitled to any part of the #2000, as he had disappointed his father's will by taking Pelletstown and the houses in Dublin, devised to William and the respondent Jacob; and that be the respondent Jacob was entitled to £1000 part of the £2000 and to a compensation out of Ballynunry and Kilcoole, of which Christian died seised in fee, for the value of such part of Pelletstown and the houses divided to him, as Gerard had evicted him of.
The respondent Jacob had previously filed his bill against Gerard Bor, Helena, as executrix of Christian, William Longfield, as surviving trustee in the settlement of 1717, Robert Baldwin, as heir of Arthur and Editha, trustees in Christian's will, and against Boleyn Whitney and William Williams, as trustees in John's will; praying, that in regard Gerard had possessed himself of Pelletstown and the houses in Michael's-lane, School-house lane, and Bor-court, contrary to his father's will, he the respondent might be decreed to £1000 a moiety of the $2000 and to a compensation out of Ballynunry and Kilcoole, to the amount of the value of such part of Palletstown and the houses, as Gerard claimed under Margaret's will; and that Gerard might be obliged to relinquish any title he might have, under Christian's will and settlement, to the £2000; and praying likewise, an account of the rents and profits of Pelletstown received by Helena, from the death of Christian to the death of John.
Gerard answered this bill, and insisted, that he, as one of Christian's and Helena's younger children, was entitled to one third of the £2000 and to a distributive share of William's third thereof; and admitted he refused to make the respondent Jacob any satisfaction out of Ballynunry and Kilcoole, wherein he had only an estate for life, for Pelletstown, or the houses; being advised that no such satisfaction was intended by Christian's will to be made, he having declared, that in case be was not impowered to devise Pelletstown and the houses for the use of the respondent and William, he the said Gerard should have no share of the £2000; and submitted to the court, whether Christian had power to devise the said £2000 merely because he wanted title to devise Pelletstown and the houses; and insisted on his title to Pelletstown, under Margaret Bor's will, and that Christian, being only tenant for life, had no right to devise the same.
Gerard soon after intermarried with Mary Burton; but before any further proceedings were had in his cause, he died on the 25th of January 1745, leaving Mary