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WILSON v. BAYLY [1760]
III BROWN.

which had happened, if it was to be considered as a case omitted, in which the devise by way of trust to compel an exchange of lands between the two devisees could not take effect in any manner; or if the respondent's right to the dividend was to be considered by force of the clause relative to the exchange only as an interim right, whilst that exchange was possible and in suspense, and which ceased from the moment it became impossible; still it was submitted, that the respondent would be entitled to these annuities, by virtue of the general devise of all the testator's South Sea annuities; because, on this supposition, they could not be considered as given away or disposed of; and consequently, according to the testator's meaning, not excepted out of that general devise.

After hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed, and the decree therein complained of, confirmed. (Jour. vol. 29. p. 436.)


[195] Case 38.—Mark Wilson, and Others,—Appellants; Thomas Bayly, and Another,—Respondents [7th February 1760].

[Mews' Dig. xv. 969.]

[J. S. devised lands to his son M. and other lands to his son J. and in case both of them should die unmarried, and without lawful issue, then his three daughters were to have the lands as tenants in common, and not as joint-tenants. Both the sons died unmarried, and without issue; and two of the daughters died in the life-time of the surviving son, leaving issue. Held, that the three daughters had such a contingent interest vested in them upon their father's death, as was transmissible to their representatives; and that the surviving daughter was not entitled to the whole.]

Mark Tew, being seised of the lands of Freffans and Rathkilmore, in the county of Meath in Ireland, by virtue of two leases for lives, renewable for ever, and also possessed of the farms and lands of Cullmullen, Agherskea, Pelletstown, Rathcore, Monalvy, Larracor, and Readstown, in the same county, by virtue of several leases for terms of years; on the 22d of February 1733, made his will, and thereby, after confirming an annuity of £70 settled upon his wife Margaret for life, by articles made on his marriage with her, and providing for the payment of his debts and funeral charges, he bequeathed to his brother, Alderman David Tew, and his brother-in-law William Stear, and the survivor of them, his executors and administrators, his leases, and leasehold lands of Cullmullen, Agharskea, Pelletstown, and Rathcore, (being four of the farms which he held by leases for years,) subject to the payment of £70 per ann. to his wife for life, and to several legacies thereby bequeathed, upon the trusts following; viz.

In trust, to permit and suffer my son Mark, and his assigns, to receive the rents, issues, and profits of the said lands and premises, and every of them, until the day of my said son Mark's marriage. And then, that the said Alderman David Tew and William Stear, or the survivor of them, and the executors or administrators of such survivor, do and shall, in conjunction with my said son Mark, make provision thereout, by way of jointure, for such wife as the said Mark shall marry, not exceeding £70 per ann. to be paid to her or her assigns, yearly and every year during her life, in case she shall outlive the said Mark, out of the yearly rents, issues, and profits of the said lands, or some competent part thereof. And upon this further trust and confidence, and to the intent and purpose, that in case my said son Mark shall have any issue lawfully begotten, then, and in such case, they the said David Tew and William Stear, or the survivor of them, his or their executors or administrators, shall, at or upon the request of my said son Mark, convey, assign, and make over unto him, the said several leases, leasehold lands and premises, and every of them, and all my estate, term, and interest therein, in such manner as counsel learned in the law shall reasonably [196] advise or devise, to enable my said son Mark to make provision for his children lawfully begotten, or to be begotten. But my will is further, that if my said son Mark shall happen to have no issue lawfully begotten, then, and in such case, the said lands and premises, so devised as

H.L. i.
1265
80
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