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1760, whereby, after reciting that he had made his last will and testament, and thereby appointed his daughter Mary Cheslyn one of his residuary legatees, he revoked her from being one of his residuary legatees, and did thereby give to her, in lieu thereof, the interest of £500 New South Sea annuities, carrying 3 per cent. to be paid to her half yearly by his executors, during her life, and at her decease the principal sum to be equally divided among all her brothers and sister; and in all other things he confirmed his will.

The testator's daughter Mary died on the 17th of April 1761, intestate; and on the 29th of the same month the testator died, leaving his eldest son, the respondent Peter Courtney Cheslyn, and his said two sons, the appellants, and bis said daughter Sarah, the wife of Henry Cresswell, his only surviving children, and his only next of kin.

The respondents Henry Cresswell and Sarah his wife, and the said Charlotte Cresswell, and Richard Cheslyn Cresswell, in Trinity term 1761, exhibited their bill in the Court of Chancery, against the said Thomas Cheslyn and the appellants, as the executors of the testator, and against the respondent Peter Courtney Cheslyn, and also against Nicholas Cheslyn and Ruth his wife, annuitants in the will named, thereby claiming to be entitled equally with the appellants, and the respondent Peter Courtney Cheslyn, to a distributive part or share of the £1000 bank stock, and £500 New South Sea annuities, devised to the said Mary Cheslyn for her life, together with the dividends thereof, from the testator's decease; and also insisting, that the testator having by his codicil revoked the bequest of one third of the residuum of his estate to the said Mary Cheslyn, he ought to be considered as having died intestate with respect thereto, and that the same ought to be distributed among the respondents Sarah and Peter Courtney Cheslyn, and the appellants, as his next of kin; and therefore the bill prayed, that the respondents Henry Cresswell and Sarah his wife might be paid one full fourth part of the third part or share of the testator's personal estate, as the proportionable part or share of the said Mary Cheslyn, devised to her for life, with such limitation over as aforesaid, and all interest, dividends, or profits which had accrued or become due thereon, since the testator's decease.

The appellants and the several other defendants put in their answers to this bill and the appellants by their answer insisted, that neither the respondents, or either of them, nor the said Peter Courtney Cheslyn, were or was entitled to any part of the residuum of the testator's estate, but that the appellants, under the will and codicil, were entitled to the whole of such residuum, as his residuary legatees.

Issue being joined, and divers witnesses examined, the cause name on to be heard before the Lord Chancellor Northington, on the 8th of March 1762; when his Lordship was pleased to order and decree, that the clear residue of the testator's per-[249]-sonal estate, not specifically bequeathed, should be divided into three equal parts, and one third part thereof to be paid to, or retained by the appellant Richard Cheslyn; one other third part to be paid to, or retained by the appellant Edward Cheslyn; and as to the other third part, his Lordship declared, that the $1000 bank stock and £500 New South Sea annuities, which were given by the will and codicil to the testator's daughter Mary, (who died in the testator's lifetime,) and after her death were limited over to the testator's next of kin, fell into, and ought to be considered as part of such last-mentioned third, and that such third was divisible in fourths; and it was ordered, that one such fourth should be paid or transferred to the respondents, Henry Cresswell and Sarah his wife, in right of his wife; and that one other fourth part thereof should be paid or transferred to the appellant Richard Chestyn, one other fourth part thereof to the appellant Edward Cheslyn; and his Lordship declared, that the remaining fourth part thereof belonged to the respondent Peter Courtney Cheslyn.

From so much of this decree as declared (T. Sewell, G. Perrott), that one third of the clear residue of the testator's personal estate, not specifically bequeathed, was divisible in fourths, the present appeal was brought. And on behalf of the appellants it was argued, that the testator having by his will appointed three residuary legatees, namely, the appellants and his daughter Mary, and afterwards by his codicil, revoked her from being one of such residuary legatees, it was the same as if she had never been named in the devise of the residue, and the codicil having in express terms confirmed the will in all other respects, it was the same as if the testator had expressly said, that his two sons should be the residuary legatees of his whole estate; whereas, by the construction of the Court of Chancery, they were made residuary legatees of only two parts in three. That