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The intricacy of the present cause, as well as the great respect I have for the noble Lord who pronounced the decree, and whose ability and judgment I well know, occasioned my proposing that your Lordships should adjourn to this day, in order to consider the case more fully, as several of the objections made by the appellant's counsel had, I believe, great weight with many of your Lordships who attended to the argument, as well as with me.

I shall now, as it is my duty, resume the case, and state it to your Lordships with all the brevity and clearness I am master of. [His Lordship having accordingly stated the case with great precision, proceeded as follows.] Out of these facts the present dispute arises; and the only question for your Lordships consideration is, Whether the present decree he right or not? And here, notwithstanding the judgment of the noble Lord who pronounced it, I must declare it to be my opinion that the decree proceeds on a mistake, and that there is no reason to oblige Gerard the appellant to make his election, whether he will abide by the will of his grandfather Christian Bor or not.

The court went on a general rule, which undoubtedly is a very right one, but has in this case been misapplied; viz. That when a father disposing of his estate happens to give a younger son what was settled upon the elder, and at the same time gives the elder son some other provision; if the elder will defeat the will in any part, he shall not at the same time take any benefit under it; for it is inequitable to claim any benefit under a will, and at the same time overturn it, and prevent its taking effect according to the intention of the testator. This was first decreed by Lord Cowper in Noys v. Mordaunt (2 Vern. 581) and has since been adhered to, and looked on by the court as an implied condition annexed to the devise. It will therefore be reduced to this single consideration whether the doctrine now laid down ought to be applied to the present case or not.

Three objections have been made by the appellant's counsel to this decree.

I. That supposing no express provision had been made by the testator's will, in case he had not power to devise Pelletstown, yet no implied consideration could arise.

II. That however it might stand if no such provision had been made, yet as in this case the testator has by an express proviso said what was to be the consequence, un court of equity can carry it further.

III. That whatever comes of these two objections, yet it stands in the same situation as if Jacob and William had received a satisfaction; because John agreed for a valuable consideration to confirm the will, and by not doing it had broke his covenant, so that Jacob and William were entitled to a satisfaction out of his real and personal assets.

The first objection in my opinion carries great weight in it, but it is not necessary to decide at present, that a remainder-man after an estate tail should be subject to the equity; for though it may not affect a purchaser for a valuable consideration, yet it may disturb family settlements, and be attended with inconveniences. In cases of wills, things are to be taken as they stood at. the testator's death, and it would he dangerous to consider them in any other light. Now John was not bound to make his election, as nothing was given him by the will; and Gerard had but a remainder after an estate tail. Suppose then that Jacob and William had brought their bill at the testator's death against John and Gerard, to make good the devise of Pelletstown, no relief could have been given against John. But even suppose that Gerard had been directed [179] to confirm it as far as he could, by levying a fine in order to bar bis issue; John might the next moment by a recovery have barred all the remainders. Such a decree therefore, would have given only so much moon-shine; and these tacit conditions, as I before observed, ought to be construed as they stood at the death of the testator.—But I give no opinion on this point, because the present case will be determined on particular circumstances.

The testator has by an express proviso, declared what should be the consequence in case he could not devise Pelletstown, etc. and there is therefore no room to imply any consideration. I admit, that as Ballynunry was given to Gerard, the testator might lay such a condition on him; cujus est dare, ejus est disponere: but this is a different case from the common ones, to which that rule has been applied. When such a consideration is raised by implication, it ought to be a necessary implication;