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of so much difficulty to the Lord Chancellor on the first hearing, that his Lordship took time to consider of it. At the time when the daughter's title accrued in 1727, the rules relating to executory devises were not so fully understood and settled as they now are; she obtained the best opinions in favour of her title, and therefore as there was strong probable cause of defence, and the point very doubtful, no costs ought to have been decreed against the appellants, or, at most, out of assets only, they being merely executors of the persons originally concerned. The appellants testators were fair purchasors for a valuable consideration, under a sheriff's sale; the respondent was merely a volunteer. The appellants gave no affected or vexatious delays, they filed no cross bill, nor put in any insufficient answer; and the long pendency of the suit was entirely owing to the delays of the respondent, and his father and uncle, the former plaintiffs, in not proceeding with effect, and frequently omitting to bring the proper parties before the court.

On behalf of the respondent it was said (A. Wedderburn, J. Skynner), that the testator, at the time of making his will, had two events in his contemplation, on either of which the limitation over of his personal estate was to take effect; viz. the marriage of his daughter without consent of his executors, or her death without issue then living; and as each of those events was to take place, if at all, within the compass of a life, the limitation depending thereon not being too remote, was, by the rules of law, valid and effectual. By the death of the testator's daughter without ever having had issue, the devise over took immediate effect; and the persons in whose favour it was made, became thereupon entitled to the benefit thereof. That though the words, die without issue, are in some cases, and especially in devises of real estates, construed to mean a failure of issue generally, whenever after it shall happen, yet [306] in the present case, such construction could not be admitted; not only because those words, in their natural import, apply to a failure of issue at the time of the death of the devisee; but because the testator had plainly shown his intention to restrain it to that time, by giving his estate in that event to the children of his sister, as personal provisions for them; and particularly, by directing it to return to his executors, to be distributed by them, thereby placing in his executors, a personal trust and confidence, inconsistent with the extent of the devise, if it was not meant to take place within the compass of a life in being.

After hearing counsel on this appeal, the following question was put to the Judges; viz.

When are the bequests over, in ease his daughter should die without issue, to take effect, according to the true intent and meaning of the will of William Cronyn? Whether upon her death, and an indefinite failure of issue at any time, or upon her death, without ever having had issue; or upon her death, without issue living at that time; or upon her death and failure of issue, during the lives of the persons to whom the bequests over are made, or any of them?

And the Judges having taken time to consider, the Lord Chief Justice of the Common Pleas delivered their unanimous opinion, "That the bequests over, in case the daughter of William Cronyn should die without issue, are to take effect, according to the true intent and meaning of his will, upon the death of his daughter without issue living at that time." Whereupon it was ordered and adjduged, that the appeal should be dismissed; and the decrees therein complained of, affirmed. (M.S. Jour. sub anno 1767–8, p. 232.)

Elias Levy, Esq. being possessed of a very considerable personal estate, did, on the 27th of December 1749, make and write with his own hand, his will, or testamentary