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Manchester, or those with whom he had advised, to have elected to accept, they must see that he had not the power over this estate which he was then exercising, and yet they contented themselves with this security; they, as well as he, plainly supposing, that the estate he was then about to mortgage was his own, and at his disposal.

IV. But it is said, that whatever were Duke John's intentions, his acts would entitle the respondents to consider him as having accepted, and to have the condition performed for their benefit; for that he had taken his father's estate, and applied it to his own use, and having only an alternative, equity would not allow him to hold both.—If the respondents could be entitled upon this ground to a decree against the appellants, they would have been entitled to a decree against the Duke himself had he been living; though he had insisted, as the appellants now did, that he had never accepted, or intended to accept, and had given the same account as they had done, of his motives for intermeddling with his father's estate. It is true that equity would not allow him to have both; but if it appeared, that he had kept the one to which he had an undoubted title, without any idea of relinquishing it, and had taken the other, to say the worst, without any title at all; he would most undoubtedly have been decreed to account for what he had thus held without a title, unless he had been able to satisfy the court, as he probably would, that the debts he had paid, and the provision he had made for his daughters, overbalanced their claim or that they had waived it, by neglecting to pursue a right, which, if it existed now, existed 40 years ago, and might then have been pursued, if it had been thought worth [290] pursuit. It was further to be observed, that if the late Duke of Montagu was to be considered as having accepted and taken under his father's will, so as to entitle the respondents to a settlement of the Warwickshire estate; it might have happened, that this estate, by means of the mortgages in which the trustees joined, had got into the hands of a purchasor or mortgagee to the full value without notice, so that the estate itself could not have been specifically obtained; in which case, the respondents, by the known rules of equity, would have had a right to pursue the trustees, and recover the value against them. It was however submitted, that if this were a bill against the trustees for a breach of trust, in conveying away the estate to the prejudice of the respondent Lady Beaulieu, for whom and for her sister they ought to have considered themselves as trustees; it would have appeared very harsh to decree against them upon no better evidence of the Duke's acceptance, than existed in the present case and yet, such must have been the decree in that case, or it could not be supported in this.

On the other side it was contended (W. de Grey, A. Wedderburn), that Ralph Duke of Montagu devised his whole real and personal estate to his son John, the late Duke, upon an express condition, "that he should settle the Warwickshire estate to the uses contained in the will." If Duke John accepted this devise, he was bound to perform the condition; it being a maxim, that whoever accepts a gift upon condition, must absolutely comply with such condition. The only question therefore in the present case was, whether his Grace did accept the bequests in his father's will? And the proof that he did, arose not from matter of doubtful construction of words, but from a series of plain facts. By Duke Ralph's will, the residue of his personal estate was given to trustees, in trust for his son, in case he should attain the age of 22. Until that period, the trustees were made executors; and then, the son was made sole executor. In the event of his dying before 22, the trustees were to continue executors, and to sell and dispose of the personal estate, and invest the produce in lands, to be settled to the same uses as the real estate. But every estate and trust given to, or declared for the son, were upon the condition of his suffering a recovery of the Warwickshire estate, and declaring the uses as there described; with an express declaration, that in case of neglect or refusal to do these acts, the devise of the real estate to the son should be void, and go over as if he was actually dead; and "that the whole residue of the personal estate should be laid out and settled as if his son had died before 22, omitting the use and estate to him." These directions were too plain to be mistaken, nor did the late Duke mistake them. He attained his age of 22 on the 19th of March 1712, and on the 7th of April following he obtained a probate of his father's will; which alone would be a plain declaration of his acceptance of and abiding by the will, and of the trustees considering his act in that light. For if he had not assented to the condition, he could not have become exe-[291]-cutor; the personal estate must have been sold and laid out in lands, and settled as if he had died before