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dispose either by will or deed, which shall first happen, that the sum of £500 part thereof, be paid to my said nephew, James Clavering, Esq. of Greencroft, for his own use; and that the sum of £500 other part thereof, be paid to my niece Alice Grey, for her own use; and that the sum of £900 other part thereof, be paid to my said niece Ann Clavering, to her own use, and to my cousin Elizabeth Pell, £300 for her own use, and to my cousin Eleanor Poll, the sum of £100, and to each of the four churches in Newcastle-upon-Tyne, viz. St. Nicholas, All Saints, St. John, and St. Andrew, to each £100, the interest of which to be given to ten necessitous people, at the direction and order of the vicar and parson of each parish on the annual day of my son's death; to the society of the clergy annually held in the said town, £50 to the parish of Newborn in Northumberland, £100 to be given to the poor of East Denton, on the annual day of my son's death, at the direction of the vicar, and four and twenty of the said parish and I further give the remaining £150 among my son's servants, according to their deserts.

On the 16th of April 1734, the testatrix died, leaving the said John Rogers her heir at law, who shortly after her death proved her will.

John Rogers, after having received the £8000 on Sir John Delaval's mortgage, died on the 24th of June 1758, without issue, and without having made any express disposition of the £3000 either by will or deed; leaving the respondents Edward Montagu, Anthony Isaacson, and William Archdeacon, his heirs at law.

In November 1761, the appellant George Grey, as administrator of Alice Grey, named in the will of the said Elizabeth Rogers, and the appellant Hugh Moises and his wife, as the representatives of Ann Clavering, also named in the said will, brought their bill in the Court of Chancery, against the respondent Edward Montagu, one of the heirs at law, and also administrator of the said John Rogers, and against Anthony Isaacson, and William Archdeacon, the other heirs at law of the said John Rogers, and Thomas Davison, administrator de bonis non of the said Elizabeth Rogers, with her will annexed, and against the appellants Edward Burton and Mary his wife, as representing Eleanor Pell, named in the will of the said Elizabeth Rogers, and the appellants Sir Thomas Clavering, and George Clavering, executors of James Clavering, also named in the said will; and against John Smiles and William Brown, as servants of the said John Rogers, living with him at the time of his decease, and against his Majesty's Attorney General; praying, that the premises comprised in the settlement of October 1713, or a sufficient part thereof, might be sold, and that all proper parties might join in such sale; and that out of the money to arise there-[317]-from, the legacies given by will of the said Elizabeth Rogers, out of the said £3000 might be paid.

To which bill the respondent Edward Montagu put in his answer, and thereby insisted, that the £3000 wholly vested in John Rogers the son, on the death of the said Elizabeth Rogers; and that the said £3000 being by the will given over to the legatees therein named, only on the death of John Rogers without issue, or in case he should not dispose thereof by deed or will, such disposition, depending on the said John Rogers's dying without issue generally, and also without disposing of the said £3000 by deed or will, was, by the known rules of law and equity, too remote to take place, and therefore void.

On the 24th of February 1764, the cause came on to be heard before the Lord Chancellor Northington, when his Lordship ordered, that the plaintiff's bill should stand dismissed as against the defendant Davison, with costs, and as against the other defendants, without costs.

From this decree the appellants appealed, insisting (C. Ambler, A. Wedderburn), that it manifestly appeared from the will itself, to be the intention of the testatrix, that the legacies should take place upon the death of her son, and not wait the failure of his issue; which might not happen till long after his death, and at so great a distance of time as entirely to disappoint her view in giving those legacies. That the true legal sense of the words, upon the death of my son without issue, was not failure of issue generally, but failure of issue at the time of his death, which is the natural meaning of the words; and the legacies being given upon that contingency were capable of taking effect by the known rules of law. But even if the words were construed to mean dying without issue generally, yet in this particular case it was apprehended, that the legacies were not void, but took effect upon the happening of that event. That