Page:The English Reports v1 1900.pdf/1375

the equitable interest, the legal interest thereof having been vested in trustees for his benefit; and that at the time of his death, he was seised in fee of such freehold estates, and was equitably, entitled to him and his heirs, to the absolute property of the said copyhold or customary estates; a particular of which said last mentioned freehold and copyhold or customary freehold estates, so far as the same had been ascertained before him, was stated in the aforesaid schedule, and therein distinguished under the head No. 6.—That the testator was seised of the legal interest of all the said freehold estates, and that he was only seised of or entitled to the equitable interest in the said copyhold or customary estates; the legal interest of the whole of the said copyhold or customary estates, and of such other copyhold or customary estates of which Sir William Morgan was seised, or to which he was equitably entitled in the county of Monmouth, being in trustees. And the Master further certified, that he had in the said schedule, stated the nature and quality of the aforesaid estates, with the course of descent which prevailed, according to the customs of the customary freehold or copyhold manors, whereof the same were held, and were parcel.

On the 4th of July 1772, the causes came on to be heard before the Lord Chancellor Bathurst, as well with respect to further directions, as to the matter of costs; when his Lordship ordered, that a case should be made for the opinion of the Judges of the court of King's Bench, upon the will of Sir William Morgan, and that the question should be, "Whether Thomas Morgan, the brother of the said testator, and Thomas Morgan the younger, and Charles Morgan, or any or either of them, took any and what estate in the lands in the counties of Monmouth and Glamorgan, by the residuary clause in the said will?" And his Lordship reserved the consideration of all further directions, until after the Judges should have made their certificate; and in the mean time by consent, and without prejudice to any question in the causes, it was ordered, that the Duke of Rutland, the surviving trustee in the term of 500 years, created by the set-[344]-tlement of the 14th of May 1723, should raise by mortgage of the said term, the sum of £12,000 with interest after the rate of £4 per cent, per ann. from the 16th of July 1763, (being the time of the death of William Morgan, the son of the testator Sir William Morgan), and by the consent of the appellant Elizabeth, present in court and examined, it was ordered, that the said £12,000 and interest, when raised, should be paid to Lord Charles Cavendish, the surviving trustee named in her marriage articles upon the trusts therein mentioned.

By a subsequent order of the 14th of December 1772, it was ordered, that a sum of £4560 (which it was admitted by the parties, would be due for interest of the £12,000 on the 16th of January then next) should be considered as principal money, to carry interest after the rate of £4 per cent. from that time; and it was further ordered, that the said Charles Morgan should pay to Lord Charles Cavendish, interest on the said sums of £12,000 and £4560 after the rate of £4 per cent. half yearly, on the 16th of July and 16th of January in every year, until the said principal sums of £12,000 and £4560 should be raised and paid according to the directions of the decree, the first payment of such interest to be made on the 16th of July then next.

In pursuance of the order of the 4th of July 1772, a case was made for the opinion of the Judges of the Court of King's Bench, and the same was argued in Hilary term 1773, and again in May 1778; when the Lord Chief Justice Mansfield, Sir Richard Aston, and Sir William Henry Ashhurst, the Judges before whom the case was argued, made the following certificate:

Having heard counsel on both sides, and considered this case, we are of opinion, that the event of a second marriage was not in the testator's contemplation; but supposing that, from the generality of the description, the words, any after-born son, should be extended to the son of any future marriage, we are of opinion, that from the manifest intent of the testator, expressly declared in his will, such son must take an estate tail; consequently we are of opinion, that either way a remainder after estates tail is devised to Thomas the testator's brother, who, by virtue of the said limitation, upon the failure of the sons of Sir William the testator without issue male, was entitled to the lands in the counties of Monmouth and Glamorgan, devised by the residuary clause in the said will, for life, with remainder according to the limitations in the said will.

On the 23d of July 1773, the causes were heard upon the Judges certificate, and likewise for further directions, and as to costs; when the Lord Chancellor ordered, that