Page:The English Reports v1 1900.pdf/1284

others, stating the several matters aforesaid, and praying, that the respondent Catherine, and the respondent Thomas in her right, might he let into, and quieted in the possession of the said lands, and for an account of the rents and profits thereof since the death of the said John Tew.

The appellants Mark and Susanna Wilson, by their answer said, they were the children of Elizabeth Wilson, formerly Tew, one of the daughters of Mark Tew the elder; that John Tew died, leaving the respondent Catherine his only surviving sister, and the appellants Mark and Susanna Wilson his nephew and niece, the only surviving issue of his sister Elizabeth, and the appellants Catherine and Elinor Mottley his nieces, and only surviving issue of his sister Sarah Mottley; and submitted to the court, whether by the words and meaning of the will of Mark Tew the elder, the respondent Catherine, and the respondent Thomas in her right, were entitled to any more than one third part of the freehold and leasehold interests therein mentioned; apprehending that they, as being the only issue of their mother Elizabeth, were entitled to a distributive share of all the terms for years, and other the personal estate of Mark Tew the elder, and Mark Tew the younger, and John Tew; and that the appellant Mark Wilson, as heir at law of bis said mother, was entitled to her part of the freehold and real estate of her said father and brothers.

The appellants Catherine and Elinor Mottley, by their answer insisted, that as the daughters and only surviving issue of their mother, they were, with the appellant Mark Wilson, and the respondent Catherine Bayly, the heirs at law of Mark Tew the elder, and Mark Tow the younger, and John Tew, and were, with the respondent Catherine, and the appellants Mark and Susanna Wilson, the next of kin of the said John Tew, and entitled to their distributive shares of his personal estate; and apprehended the intention of Mark Tew the elder, in his will, was, that in case of his two sons dying unmarried, or without issue, the several leases, lands, and premises in his will mentioned, should go to his [200] three daughters, Mary, Sarah, and Catherine, and their respective issue; and that they, as the only issue of the said Sarah, were entitled to an equal share with the respondent Catherine, of the said leases, lands, and premises.

On the 16th of June 1755, the appellants Mark and Susanna Wilson preferred their cross bill against the respondents, and the said Catherine and Elinor Mottley, prayed, that their shares of the freehold and leasehold estates and interests mentioned in the wills of Mark Tow the elder, and Mark Tew the younger, or whereof the said John Tew was seised or possessed at his death, might be decreed to them; and that an account might be taken of the personal estate of the said John Tew, and that they might be decreed to receive their proportion thereof.

The respondents by their answer to this cross bill, insisted upon the several matters set forth in their original and amended bills; and that the respondent Catherine, as the surviving daughter of Mark Tow the elder, was entitled to all the leases for lives and years mentioned in his will. And the appellants Catherine and Elinor Mottley, also insisted upon the several matters contained in their answer to the respondent's bill.

Issue being joined in both these causes, they came on to be heard before the Lord Chancellor of Ireland, on the 8th of December 1758, and several subsequent days; and on the 20th of that month his Lordship was pleased to decree, that the respondent Catherine Bayly, and the respondent Thomas in her right, were entitled to, and should have and recover all the freehold and leasehold estates and interests contained in the will of Mark Tew the elder deceased; and granted an injunction for that purpose: and it was referred to the Master, to take an account of the rents, issues, and profits of the said freehold and leasehold interests, from the death of John Tew the intestate, and into whose hands the same came, and how disposed of and his Lordship declared, that the heirs at law of the said John Tew were entitled to his real estate and descendible freeholds; and that the respondent Catherine, and the respondent Thomas in her right, should have and recover one third part thereof, and that: the appellant Mark Wilson should have and recover one third part thereof, and that the appellants Catherine and Elinor Mottley should have and recover the other third part thereof. And it was ordered, that the Master should take an account of such real estates, and of the rents and profits thereof, since the death of the said John Tew, by whom received, and how applied; and it was declared that his next of kin were entitled to his personal estate, according to the statute of distribution; viz. the respondent Catherine, and the respondent Thomas in her right, to one third part thereof; the appellants Mark and