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parent, not imposed upon, could not have made such a bargain for younger children; and that this supposed apparent fraud ought to infect the whole deed. III. The other point made at the bar was, that the estates devised to John Kelly and the respondent Richard, were to take place on failure of the issue male and female of James Farrel, whensoever the same should happen, without any thing contained in the will to restrain the contingency to his own death, or any other particular time; and that therefore such executory devises were void.

To these different points the following answers were submitted. I. That the act of the 2d of Ann does not say or moan generally, that a Papist shall not make a voluntary settlement. The express provision of the act is, that a Papist, seised in fee or in tail, shall not dispose of that estate, otherwise than by a sale; because in such circumstances, the estate not aliened must go to all the sons and daughters, or to the collateral kindred in equal degree, or to the Protestant heir; and the end of the law must be answered, either by dividing the estate, or by the conformity of the heir. That in the present case Sarah French had but an estate for life in the Roscommon estate, and no interest at all in the lands in Galway or Sligo; and her power over all these estates could not be considered as an estate in fee, or if it could, yet the son's conformity must have brought the reversion in fee of all the lands in him. That to bring this case within the Popery laws, it must be presumed that her dominion over the estate was tantamount to a fee; and this very supposition took from the appellants all possibility of title derived from those laws: besides, to bring this case within the act, would wholly prevent the operation of it; for, if the deed of 1702 became irrevocable, the estate must have gone in entire succession to all the persons to whom it was given by that settlement, though they had all continued Papists; whereas, allowing Sarah French to execute her power, the new grantees must either have conformed, or the estate must, after the second act, have gone to Protestant informers. The question then would be, whether the legal consequences contended for, necessarily flowed from the first act, as disabling Sarah French to limit new uses. Papists are disabled to take beneficial estates only. It was evident she did not take back to herself any beneficial interest; and as she had not done it, it was unnecessary to discuss the question, whether the right she had reserved to herself of doing so before the Popery laws, was rescinded by those laws. But if it had been necessary to take back the estate for an instant, for the purpose of limiting new uses, it was apprehended that such an instantaneous seisin was not prohibited by the Popery laws. For to construe those laws to extend to that kind of seisin, which might be necessary to transfer the estate from a Papist to a Protestant, would be to make them by construction, in this instance at least, counteract the avowed purposes for which they were made. But it [268] was not necessary that Sarah French should have resumed the old estate, not even for an instant; for the new uses arose out of the estate which was granted by the fine to the trustees, and therefore the case was neither within the words or meaning of the Popery laws, nor affected by any consequences flowing from them. II. The objection to the deed of 1710 was made by persons who had no interest in the portions which were revoked, and after an acquiescence of 50 years by those who had an interest in them, and this too without any allegation in the bill to impeach the deed as fraudulent. But this objection had been already sufficiently answered by the observation, that John Kelly, whose interest was equally affected with that of the appellants by the deed, was an executing party and trustee under it; and that the principal and only avowed object of the deed, was to provide for the eldest son and his family. III. The devise to the remainder-men under the will of James Farrel was, at his death, a devise in possession, and not an executory devise. No estate was limited to the issue by the will; but it was plain, he meant a failure of issue living at the time of his death. The contingency was determined the instant the will took place, viz. at his death. The first trust was to pay debts, legacies, and annuities, to his sisters for their lives; and he could not have intended that those trusts should take place 100 or 200 years after his death. The legacy given by the codicil to James Costello, of which the first payment was to be made on the 1st of May, or November, which should first happen after his death, showed what he meant by dying without issue; viz. if he should have no issue when his will should take effect. And the codicil was expressed to be an addition to the will, and directed, that the will should stand in all points not thereby altered; and therefore the legacies were, by the will and codicil, payable only on the event of his dying without leaving issue at his