Page:The English Reports v1 1900.pdf/1324

term of 99 years, to raise portions for the younger children of the marriage; remainder to the first and every other son of the marriage in tail male; remainder to his first and every other son by any other wife in tail male; remainder to his own right heirs.

James Farrel died without issue in 1738, having made his will dated the 25th of July in that year, reciting that he had by his marriage settlement, settled a jointure of £400 a year upon his wife Jane, and being desirous to make a better provision for her, he thereby devised to her all the fortune he was entitled to in her right, provided she should be content and satisfied therewith, and with £200 a year out of his real estate during her life; and upon default of issue male and female of his own body, he devised all his estate in the counties of Galway, Roscommon, and Sligo, to Peter and Dennis Daly and their heirs, in trust, in the first place, to pay all his just debts and legacies, and after payment thereof, and securing the provision made for his wife, he limited his estate in the counties of Galway and Sligo, to the use of John Kelly, junior, second son of his nephew John Kelly of Lackane, for life, remainder to trustees to support contingent remainders, remainder to John Kelly's first and other sons in tail male (he and they assuming the name of Farrel); remainder to the respondent Richard Caddell, eldest son of his sister Celia for life, remainder to his first and other sons in tail male; remainder to the respondent Robert Caddell, second son of Celia for life, remainder to his first and every other son in tail male; and as to his estates in the county of Roscommon, upon default of issue of his body, and after the payment of his debts and legacies, he devised the same to his nephew the respondent Richard Caddell for life, remainder to his first and every other son in tail male; remainder to his nephew Dennis Kelly, father of the respondent John Kelly the younger, for life, remainder to his first and every other son in tail male; remainder to John Kelly, the youngest son of his said nephew John Kelly of [263] Lackane, for life, remainder to his first and every other son in tail male; remainder to the youngest sons of his said nephew John Kelly, in such manner as his lands in the counties of Galway and Sligo were limited to them; remainder to his own right heirs. And he declared, that the estates thereby given, were upon condition, that the several persons who should hold or enjoy the same, and their issue, should assume and take the name of Farrel, and the coat of arms of that name; and that such as did not, should forfeit the estate thereby limited to them, which should go over to the next in remainder who took that name and arms; and he thereby bequeathed annuities to his sisters Rosa and Austace Farrel, and some small pecuniary legacies to his nieces, Frances and Hellen Kelly, and to his nephew James Kelly, their brother, and to his nieces Margery and Rosa French, and to their brother Patrick French, and to Bridget Netterville; and devised his real estate, in default of issue male of his body, to his daughters successively, and the heirs of their bodies; and if there should be any younger daughter or daughters, who should live to marry, to have such portions on the estate as the said Peter and Dennis Daly, and their heirs, should appoint, provided that such daughter as should enjoy his estate, should marry one of the name of Farrel, or who should assume that name and arms, else to go to the next daughter or her issue; and for want of such, to go according to his said will; and he appointed Peter and Dennis Daly his executors. And by a codicil dated August 18th, 1738, after making some alterations with regard to the life annuities and legacies bequeathed by his will, he revoked the bequest of the money and securities that he had, or was entitled to as his wife's portion, and bequeathed the same to the appellants and their heirs, to be laid out in lands in trust for his grand-nephew John Kelly, with such remainders as were limited of his estates in the counties of Galway and Sligo; and appointed his nephew John Kelly of Lackane, and his sister Celia Caddell, his executors.

Jane Farrell the widow entered on her jointure, and married the respondent John Kelly of Fidane.

Ulick Farrel, the youngest brother, having survived James, the tenants of the estate in the county of Roscommon refused to attorn tenants to the respondent Richard Caddell, the devisee in the will of James Farrel; and Ulick being a weak man, and totally incapable of managing his affairs, was prevailed upon by the respondent John Kelly of Lackane, for the consideration of £50, and an annuity of £100 for his life, to convey the Roscommon estate, which the appellants took possession of, and which was then worth £370 a year, to the said John Kelly and his heirs; and he being intimately acquainted with Peter and Dennis Daly, the trustees in James Farrel's will, got them to join with him in bringing an ejectment for recovering the possession thereof, on a