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Kilcoole; and if such a condition never was expressed, it would be going a great way in the construction of men's wills to presume it: but if the testator had thought of the event of John's dying without issue male, he would have considered what might then be the state of his family; and never would have obliged his disinherited heir to make good a devise to a younger branch who had got the bulk of his estate. That there was no room to imply what the testator would have done, if he had known his defect of power to devise Pelletstown, etc. because he had spoken for himself, had declared his own mind, and suspecting his title, he expressly put the case, and provided for the event; he knew that the objection could only come from John his oldest son, and if his devise of Pelletstown, etc. was liable to that objection, he, in order to make the provision for his three younger sons more equal, gave Gerard's share of the £2000 to the other two; and made it good by devising £100 a year to him for life, but laid no charge upon the remainder limited to his issue male. That the will gave either Pelletstown, etc. to the devisees thereof, or, if the title thereto was evicted, one third of the £2000 in lieu of it; but the decree gave a satisfaction both for the lands of Pelletstown, etc. and the share of the £2000, i.e. both for the thing originally devised, and what was devised in lieu of it if it could not be enjoyed, though the testator only gave either the one or the other; and the decree also gave a satisfaction for the whole of the third of the £2000 against the remainder entailed upon the appellant, though that third went as part of his father's personal estate to Mary Bor his administratrix, and though Gerard received more from the rents and profits of the devised lands during his life; nay, the decree gave no relief over against the assets of John, who had, for valuable consideration, covenanted in effect to make good this third to Gerard, and also to make good Pelletstown, etc. to the respondent.

On the other side it was argued (C. Yorke, K. Evans), that the testator Christian Bor, at the time of making his will, enjoyed several estates as tenant for life under the will of Margaret Bor; he had the lands of Ballyawley, etc. for life, with remainders limited to his first and other sons in tail male. By the death of his two brothers Jacob and Benjamin without issue, he, under the same will, became entitled in possession for life to the lands of Pelletstown, etc. with like remainders over; and by descent from his uncle Gerard, he was seised in fee of the lands of Ballynunry and Kilcoole. Being seised of these several estates, he considered [176] of a provision for all his sons; his eldest son John having a right to enjoy the lands of Ballyawley and Pelletstown, as tenant in tail by the will of Margaret, the testator made no present addition to his fortune; but to his three younger sons, Gerard, Jacob, and William, he made several devises; some of which he could make, and others he could not. In the first place he devised the £2000 charged on the lands of Ballyawley, etc. to be equally divided between them; this was only repeating the trust in his marriage settlement of 1717. Then be devised the lands of Ballynunry, etc. which he had power to do, to his second son Gerard for life, with remainder to his first and other sous in tail male, with remainders over; this devise might and did take effect in possession, upon the death of the testator, during the life of John. Next he devised the lands of Pelletstown, etc. to his third and fourth sons, Jacob and William, in moieties for life, with remainders to their first and other sons; but the testator having no power to make this devise, he added a proviso, that in case it could not take effect for want of power, the share of the £2000 accruing to Gerard, should go to Jacob and William. This shewed, that the testator knew that his intention to give Pelletstown to his third and fourth sons, was liable to be defeated by his two eldest sons John and Gerard, who were entitled in order of succession under the limitations in tail of Margaret's will. If John defeated the will, to whom the father proposed no election or inducement to the contrary, still it was intended that Jacob and William should have Gerard's share of the £2000, because a better provision was made for Gerard by the devise of Ballynunry. But if John did nothing to defeat the will, and died without issue, by which Gerard's remainder in tail of Pelletstown under the will of Margaret would take effect; then not only the express proviso would operate to give Gerard's share of the £2000 charge to Jacob and William, but the implied condition would likewise operate to affect the whole estate of Ballynunry, and the interest of Gerard and his issue; which condition was this, that whoever would under the will enjoy an estate which the testator had power to devise, should acquiesce in those devises which he had no power to make. That in consequence of the events which had happened, the devise of Pelletstown could only be effectuated, or a compensa-