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heir, she alone being enabled by the will to execute it; and there was good reason for limiting the power in this manner, for as she was executrix, she knew best how far the personal estate would extend towards payment of the debts, and how much of the real estate would be necessary to be sold; and it was not found by the special verdict, that there were any debts unpaid at her death.

But it was insisted, that though the limitation to Audley Mervyn the son was good by way of executory devise, yet that the other remainders were void, as being on too remote a contingency. If, however, the remainder to Audley Mervyn the son was vested, the other remainders must certainly be good; for if the will was considered in the foregoing light contended for by the plaintiff, it would appear consistent, and no person could be injured by it. By passing the reversion, the testator had made the best provision in his power for his family, the general words were satisfied, the sons were provided for agreeable to the testator's intention, the fund for the payment of debts was increased, and Henry's power of settling a jointure upon a second wife and making leases was enlarged; but if a contrary construction should prevail, all this would be frustrated. Besides, it was extremely improbable, that a man who was so careful to perpetuate a small estate in the male line, and so intent upon aggrandizing his issue male, that he did not give any of his sons the usual power of charging portions for their daughters, would leave his ancient and largest family estate unsettled. It was therefore hoped, that the judgment of the Court of King's Bench in England would be reversed, and the judgment of the Court of King's Bench in Ireland affirmed.

On the part of the defendant in error it was contended (G. Perrot, A. Forrester), that the import of the general words, all other the lands, tenements, and hereditaments in the counties of Tyrone and Meath, or either of them, however forcible ex vi termini, to carry the reversion of the settled [230] estate, could no longer be so when the testator's intent appeared to the contrary; as it clearly did from every part of this will, and when there were other lands, viz. those of Gortmore, to satisfy them. The settled estate was opposed to and distinguished from the devised estate throughout. The testator declared, that if his sons Henry and Audley should both die without issue male in the lifetime of his son James, whereby the estate settled upon Henry should descend to James, then James should not take any estate or interest in the lands devised to him, but they should remain, and go over to his son Theophilus. Now if the reversion of the settled estate passed by the will, nothing could remain with James; for the settled estate, which was intended to continue with him, must, as part of the devised lands, go over to Theophilus; the testator having declared, that in the event above-mentioned, his son James should not take any estate or interest in the devised lands. Besides, the reversion of the settled lands could never come to James by virtue of the will, upon the death of Henry without issue male; the devise to Henry coming after that to James, and was not to take effect till after the death of James, without issue male. But though there was no possibility of the settled estate coming to James, upon the death of Henry without issue male, by virtue of the will, yet it might have come and descended to him in some other way; for upon the death of his brothers Henry and Audley without issue male, it might have descended to him as heir at law, or have remained to him by a will or settlement of either of those brothers. That it was evident from the powers given in this will, that the reversion was never meant to pass by it. The power to the testator's wife, of charging the devised lands with such portions for his daughters as she should think reasonable, was confined to the lands mentioned in his will, and could therefore extend only to lands in possession, none other being therein mentioned. So the jointuring and leasing powers referred only to the lands specified, and it was a very remote consideration, that the testator should mean to extend them to the reversion, when in their nature they were applicable only to a possession; and also when his son Henry, upon whose estate that reversion was expectant, had them already by the settlement, and so they could never take effect in him. The power to the executrix of charging the lands with £5000 as additional portions for the daughters, was restricted to those lands which should come to Henry by virtue of the will; but the settled lands could never come to him by virtue of the will, because he already had them by the settlement; and this power was likewise restrained to the several lands mentioned in the will, which the settled estate was not. That the event upon which the devised lands were to go over to Theophilus, viz. the death of Henry and Audley in the lifetime of James, without issue male, made it clear that the testator did not intend to disinherit any of Henry's issue