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22, and the trustees must still have continued to act as executors, and perform the trust reposed in them. But so clear were they, that their trust and executorship were at an end, that on the 12th of April 1713; their agent Mark Antonie, by their order, settled an account with his Grace as executor of his father, and paid him the balance, which he applied to his own use. Had not his proving the will been considered as an acceptance of it, and consequently of the condition thereto annexed, that balance must have remained in the trustees hands, applicable to the purposes of the will.

But the subsequent acts of Duke John perfectly corresponded with the first. The bill brought by him for an account of rents received, partly in his father's time, and partly in his own, from his father's fee simple estates, grounding his right to the former as his father's executor, and to the latter as having those estates vested in him, was maintainable only upon the supposition of his having accepted the bequest under the will; which afforded another decisive proof that he was bound by the condition, as otherwise he had no right to those rents. His petitioning for and obtaining the act in 1717, for sale of his father's fee simple estate, in the counties of Kent and Pembroke, upon recitals that they were devised to him for life, and that they were his estates, amounted to a direct averment of his acceptance of his father's will; and as such was conclusive evidence against the party petitioning, and all claiming under him. The enacting part proceeded upon the same foundation: for on what other ground could it direct the money arising by sale of these estates, to be applied in discharge of the mortgages affecting those which his Grace held independently of the will? The Duke himself understood it in this sense; for on the 9th of April 1730, near 22 years after his father's death, when £15,219 3s. 11d. (the surplus money remaining in the trustees hands after answering all the purposes of the act of parliament,) was to be laid out, he, in consideration of that sum, conveyed a new purchased estate of his own in Northamptonshire, to the same uses as the premises in the counties of Kent and Pembroke, at the time of passing the act, stood limited by the will of Duke Ralph, i.e. to the said John Duke of Montagu for life. This was the strongest recognition that he held his father's foe simple estates under the will, and according to the limitations of it.—At the time of the respondent the Duchess of Manchester's marriage in 1722, her father was in possession of Montagu-house, and some other part of Duke Ralph's fee simple estates, to which the Duchess must have been entitled under Duke Ralph's will, if her father, by repudiating the condition, had rejected the devise. But no notice was at that time taken of any such estate or interest in her; on the contrary, the limitation to her under the articles and act of parliament were made not to take effect until after her father's death. And the recitals of this last act did of themselves demonstrably prove his Grace's [292] having accepted and taken under the will; else how could he describe Montagu-house as his, which was his only by virtue of his father's will? Or how take upon him, under the general words of this act, fall other the messuages, lands, tenements, and hereditaments of John Duke of Montagu, in Middlesex or city of London,] to sell the freehold houses, formerly Mrs. Harvey's part of Duke Ralph's fee simple estates? No other words but these, either in the act or articles, could warrant the sale, or give the purchasor a title; and yet under this title the houses were sold in 1727, pursuant to a decree of the Court of Chancery.

Further Duke John in 1724, in quality of his father's executor, compounded Monk's debt with his representatives. The £22,545 15s. 7½d. charged on the manor of Grindon; and subject to the trusts of his marriage settlement, he took care to state and adjust with the greatest exactness; but not considering himself under the same obligation as to the residue, he, without even liquidating or distinguishing the balance of each account, agreed to accept a gross sum of £30,000 in full of all his demands. He must, through the last part of this transaction, have acted as sole owner of his father's personal estate; for if he had considered himself as a trustee only, he would have stated the account of the residue of the debt, as carefully as he did the former part of it; he would have made no abatement of such part as was due to his father's personal estate, nor have blended it with what was due to himself; neither would he have converted it, so mixed and confounded with his own, into land. In short, every act of Duke John served to denote his own sense of his being bound by the condition imposed by his father's will; since whatever predilection he might have shewn for his daughter the appellant, who took under his will above £3000 a year, yet as from an apparent conviction that his other daughter the respondent, was justly entitled to one moiety of the