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mention, as a further incumbrance, the making good the deficiency of the personal estate,) in lieu of the inheritance of an unincumbered improveable estate, then of £2300 per ann. and now of much greater value.

It appeared in evidence, that Duke John, when he came of age, suffered a recovery to make himself master of the estate in question; but instead of proceeding to settle it in the manner required of him, he vested it by a declaration of the uses of that recovery, in the Lords Halifax and Somers, and the two Dummers, upon trust to dispose of it as he should direct, and in default of direction, to the use of himself in fee. It could not surely be doubted, but that at the time of executing this deed, both the Duke and his trustees were well apprised of what his father's will required of him, if he meant to take any benefit thereby; the declaration of uses therefore could not well be considered as any thing less than a declaration, that he meant to renounce whatever he was to entitle himself to in that manner; and the Duke and his trustees, instead of the settlement which it behoved him to make, if he meant to accept under the will, joined in two several conveyances of the estate in question to uses incompatible with such a settlement; viz. a mortgage to Sir James Montagu, and another to Mr. Pitt, for large sums of money; by which they wilfully put it out of their power to settle the estate unincumbered, in the manner required by the will. And the several subsequent mortgages of the same estate, the last so late as 1743, within six years of the Duke's death, in all of which the trustees, so long as any of them were living, constantly joined, were so many repeated acts, evidencing that he and they continued to consider the estate as his, unsettled, and at his own disposal; and consequently, that he had not accepted the devise in his father's will, the condition of which was, a settlement of that estate; and the consequence of which was, that in equity at least, it was immediately to be considered as settled accordingly.

But to this reasoning it is objected, I. That if Duke John meant to refuse the estate devised to him, disliking the condition subjoined to it, he ought not to have proved the will, or to have meddled with the estate, but should have abandoned the whole to [287] those to whom it belonged; and therefore that his proving the will, possessing himself of the personal estate, and receiving the rents and profits of the real, were so many acts evidencing his acceptance of the devise, and consequently requiring a performance of the condition annexed to it. But in answer to this objection, it was to be considered, who the persons were upon whom Duke Ralph's estates were to devolve, on Duke John's refusing them; namely, his own children, infants of very tender years, of themselves utterly incapable of managing them either for their own benefit, or the benefit of the creditors who were still more interested in them. And as to proving the will, neither the words or the spirit of it would support the argument, that Duke John's title to the executorship depended on his accepting the devise, and complying with the condition. The executors appointed during his minority were by an express provision to continue such in case of his death, but there was no such provision in case of his refusal to comply with the condition, which it was most probable there would have been, if Duke Ralph had intended that in that case his son should not be his executor. The testator, with a view to engage his son to make the settlement which he wished, imposed it on him as a condition, without which he was to take no benefit under bis will; but this view did not require, that the condition should be extended to the office of executor, which (when the beneficial interest in the estate was gone, on his non-compliance with the condition) was not a benefit, but a burthen. This burthen however, whatever might be the son's determination as to the conditional devise, it was equally proper the father should lay upon him, and it was his duty to submit to it, in order to apply the assets for the benefit of the creditors, and to take care of the surplus for his own children.

II. It is objected, that Duke John did not only possess himself of his father's estates, but considered and treated them as his own, which they could not be, unless he had elected to take under the will; for if he had acted in that respect for the benefit of the creditors, or his children, and not for himself, he must know he was accountable to them; whereas he never did in fact account, nor did it appear that he kept any very accurate account, which he would have done if he had considered himself as accountable.—This argument might have had its weight in some cases, but in the present it did not seem to deserve much attention. For the estate was then understood to be deficient, and it being the Duke's intention to pay, as he did, all the debts