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Warwickshire estate, he had not attempted to dispose of the estate by name, but had confined the general devise in favour of the appellant, to those estates which he had a power to dispose of. And that he did not mean to comprise his Warwickshire estate herein, was easily collected from the codicil, made but a little time before his death; whereby he disposed, for the appellants benefit, of a trust lease which he had made of Montagu-house, under a power in his father's will. This last act of his life, coincided with all the preceding; for it could not be imagined, that he would have disposed of an estate devised to him by that will, if he had not submitted to the terms of it.

It is however objected, I. That Duke John, in conjunction with the trustees, made two mortgages of the Warwickshire estate in March and April 1712, for securing £10,000 and interest; and that hence arose an inference, that he did not intend to limit that estate to the uses directed by his father's will. II. That he possessed himself of the whole of his father's real [293] and personal estate as a trustee only, for the benefit of his family; and therefore no obligation ensued to perform the condition. III. That admitting the Duke did accept the condition, yet he ought not to be bound in equity by such acceptance, for want of consideration.

In answer to the first objection it was said, that the inference there stated, was fully removed not only by the several acts of the Duke beforementioned, but by attending to those concomitant to these mortgages. He attained his age of 21, on the 29th of March 1711, and on the 14th of April following, (being then in possession of his father's fee simple estates, and of his plate, jewels, pictures, and household furniture,) he suffered a recovery of the Warwickshire estates; and with a view to, and in part performance of the condition, he vested the legal estate thereof in his father's trustees, subjecting the trust, at that time, only to such uses as he should afterwards appoint. On the 18th of the same month, four days after the recovery was suffered, be received £1158, part of his father's personal estate; and in December following, he redeemed the jewels pledged by Duke Ralph with the Bank for £4000, and appropriated them to his own use, without any estimate being made of their value. On the 4th of March 1712, having occasion for £6000, and the only security in his power being the Warwickshire estate, he and the trustees mortgaged it. On the 29th of March 1712, he attained 22, when his executorship was to commence, upon the condition of his complying with the terms of his father's will and on the 5th of April following, he and the trustees raised £4000 more on the same security. In two days afterwards, he absolutely declared his election, by taking probate of the will. These mortgages therefore, which the trustees were sensible might easily be discharged out of the personal estate, now become his own, and made at a time when the Duke was in every other instance conforming to his father's will, could not raise any doubt as to his intent. And it was very clear, with what view the trustees joined in subsequent mortgages; for the money was not borrowed to supply the necessities of an extravagant man, but to enable a person of great rank and honour to make occasionally commodious purchases. His fortune was sufficient to discharge any debts which he contracted, and the Warwickshire estate was used as a fund ready upon occasion to become a security for money, with the management of which the Duke might very safely be trusted. But allowing more force to the objection than it really carried, it is an established principle, that no man can qualify his own acts; and therefore if the Duke, after accepting the devises and bequests in his father's will, could be supposed to have declared in the plainest terms, that he would not comply with the condition thereto annexed; such a declaration would have been nugatory, and he would still have been bound by his acceptance. And if an express declaration could not have controuled the just consequences of his acceptance, [294] much less could an implied one; and especially in the present case, where the contention was not with purchasors or creditors, but with a mere voluntary devisee of the person bound by the condition.

As to the second objection, it proceeded upon ground; which the appellants as well as the respondents ought carefully to avoid. For certainly, after the acts done by the Duke, it was not just to his memory to consider him as acting in the character of a trustee. Had he possessed himself of the real and personal estate in that capacity, he would not have applied the rents and profits of the fee simple estates, whereof no accounts had ever been given, to his own use; he would not have deserted the decree of 1710, for an account, at a time when the real value of the personal estate might have been easily ascertained; he would not have entered into a composition with Monk,