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of the testator's estates, and the rents and profits thereof, and of the application thereof; and that so much of the testator's residuary personal estate as had not been laid out, might be invested in purchases with the approbation of the Court, and that the several estates to be purchased might be conveyed and settled under the direction of the Court.

The cause was heard on the 20th of June 1740, before the Lord Chancellor Hardwicke, when it was referred to a Master to take the several accounts of the testator's estates real and personal, and to enquire into the purchases made by the executors and trustees, with the residuary personal estate; and directions were also given for investing the remainder of the testator's personal estate in the like purchases, according to his will, with the Master's approbation; and also for inventories to be made of the testator's goods and furniture in Blenheim-house, and that the Duchess should enjoy the same during her life; with liberty after her death for the person interested, to apply to the court concerning the same; and the diamond sword, and the Georges and collar, were also ordered to be delivered to Charles then Duke of Marlborough, on his entering into a recognizance for the re-delivery thereof, after his death, to the person entitled to the same; and a question having arisen touching the power given by the testator's will to the trustees, to revoke the uses thereby limited to the first and every other son of the respective tenants for life of the estates therein mentioned, on their respective births, and to limit the premises to the use of such sons for their lives only; and whether, in consequence thereof, the respondent the now Duke of Marlborough, and the appellant John Lord Viscount Spencer, both at that time infants, were entitled to limitations in tail, or for life only, in the settlement to be made of the [241] said estates? The consideration in what manner the settlement of the said estates might be made, was reserved until the determination of that question.

The several estates at that time purchased by the trustees, having been approved by the Master, the said Charles Duke of Marlborough was soon after put into possession thereof; and the diamond sword, the collar and Georges, and the goods and furniture at Blenheim-house, were likewise delivered to him after the death of Sarah Duchess of Marlborough, his Grace having, previous to the several deliveries, entered into the recognizances required by the decree.

All the executors and trustees (except the respondent Earl Godolphin) being dead, the respondents John Duke of Bedford, and Charles Lord Viscount Fane, together with Dr. James Stephens, since deceased, were appointed trustees of the testator's real and personal estates, jointly with the respondent Earl Godolphin, pursuant to different orders of the court, and the trust estates were conveyed and assigned to them accordingly.

On the 20th of November 1758, Charles Duke of Marlborough died, leaving the respondent George Duke of Marlborough, his eldest son, and the appellants Lord Charles and Lord Robert Spencer, his younger sons, all infants.

In Hilary term 1769, a new bill was exhibited in the name of the respondent the Duke of Marlborough, against the other respondents the Duke of Bedford, Earl Godolphin, Lord Fane, and Dr. Stephens, the then trustees, against the respondent Joseph Fyson, the administrator of Lord Sundon, who survived Guidott and Hanbury, and also against all the appellants; insisting, that the respondent the Duke (who was not born till after the will and death of the testator) did, upon his birth, as being eldest son of Charles the last Duke of Marlborough, in the will called Charles Spencer, become entitled to a remainder in tall male in all the real estates of which the testator died seised, and to a remainder in tail male in equity in all the real estates which after his death were purchased with his personal estate; and that the trustees ought to convey the same to him as tenant in tail male, with remainders over to such of the uses limited by the will as were then subsisting; without inserting in such conveyances, any power to the trustees to revoke the estate tail to be so limited to him, or any of the uses or estates to be limited or declared by such new conveyances; for that the legal and equitable estate in tail male being so vested in him, could not, by the rules of law or equity, be divested or altered by any act, deed, or conveyance to be made or executed by the trustees, under colour of the power contained in the will or otherwise: and charging, that the testator's intention to make his estates unalienable, was contrary to the rules of law and equity, and void, as tending to establish a perpetuity; and that such attempt, should it take effect, would disable the respondent the Duke from making