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estate, received by the appellants, or any of them, since his Grace's death, and a conveyance to the respondents of a moiety of that estate, pursuant to Duke Ralph's will.

The appellants by their answer insisted, that Duke John never submitted, or intended to submit, to the condition in his father's will, and that he was not bound to perform it.

After a hearing of ten days before the Lord Chancellor Northington, his Lordship, on the 7th of May 1766, pronounced his decree; declaring his opinion, that John late Duke of Montagu accepted and took several estates, benefits, and advantages under the will of Duke Ralph his father; and that in consequence thereof, he became bound in conscience to perform the condition imposed on him by that will, with respect to the resettlement of the Warwickshire estate; and that the respondents were entitled to a moiety of the rents and profits thereof, from the death [285] of Duke John, subject to the mortgages thereon; and his Lordship gave the usual directions for taking an account of such rents and profits.

From so much of this decree as related to the declaration and directions concerning the Warwickshire estate, the original appeal was brought; and on behalf of the appellants it was said (C. Yorke, F.  Norton), that it was not now pretended, though suggested by the bill, that Duke John ever made, or directed his trustees to make, any conveyance of his Warwickshire estate, to the uses of his father's will; neither did the case, upon the whole evidence being taken together, afford any reason to believe, that he ever thought of accepting, and much less had a formed intention or resolution to accept, or that in fact he ever did accept, the devise in that will, upon the terms of making such a conveyance. That as the father's will prescribed a definite time, within which the son was to signify his acceptance, by doing a particular act, i.e. making a settlement of his Warwickshire estate, and in case he should refuse or neglect so to do, the devise in his favour was to be void, and the estates to go over to those in remainder in the manner directed by the will, it was sufficient for the appellants to observe, that when that time had elapsed, and Duke John had in fact neglected to do the act required of him, the case had happened, in which, by the terms of his father's will, his interest was to cease, and the estates to go over and vest in those in remainder; that those estates did then accordingly vest in them, and it was not in the power of Duke John, had it been ever so much his interest or inclination, to have divested them by any subsequent act; that in this respect, the case differed widely from what it would have been, if Duke John, having an election given him to accept or refuse, had been required to do this or that act in evidence of his acceptance or refusal, and had done neither; in such a case it would have remained doubtful, and depended upon evidence, whether his intention was to accept or refuse. But here that enquiry was unnecessary; for the neglect to do the act required of him, if he chose to accept, within the time prescribed for that, purpose, was, by the very terms of the will, tantamount to a refusal; so that when the time was expired, and the act not done, the rights of the parties were in all respects the same, as if Duke John had then expressly renounced all claim of benefit under his father's will.

But if, contrary to what seems to have been the plain intention of the father, the son's neglect to comply with the condition upon which he was to take, should not of itself be thought a refusal, and it was necessary to enquire further into his actual intention, it was conceived, that no act of his would fairly warrant an inference of his intention to accept; but that many of those which appeared in evidence, were utterly irreconcileable with such an intention: and it was hoped afforded decisive proof, that neither within the time allowed him to make his election, nor at any subsequent period, if that were material, had Duke [286] John an idea of giving up the inheritance of his Warwickshire estate, in the manner proposed to him by his father's will: and it was so manifestly against his interest to have done it, that he never could have entertained a doubt about it, after he knew the true state of his father's affairs under the will; and before he was acquainted with them, he could not be expected to make his election. On the part of the appellants it was not doubted, but that on an account accurately taken of Duke Ralph's personal assets, they would be found greatly deficient to pay his debts, and were so understood to be, at the time when Duke John was to have made his election; and if So, the offer made him was neither more or less than an estate for life in houses and scattered lands, of about £1000 per ann. subject to annuities for lives of about £500, (not to