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ordered, that the interest of the said £12,000 due at the time of the death of the said William Morgan, and the said sum of £16,560 and interest, when raised, should be, according to the said order of the 4th of July 1772, paid to Lord Charles Cavendish, the surviving trustee in the articles made on the marriage of the appellants, upon the trusts therein mentioned; and upon such payment, it was further ordered, that the said term should be assigned to such person as the said Charles Morgan should appoint, in trust to attend the inheritance of the premises; and it was further ordered, that Lord George, Lord Frederick, and Lord John Cavendish, the trustees of the term of 1000 years, created by the said settlement of the 14th of May 1723, should assign or surrender the same, as the said Charles Morgan should appoint; and that the plaintiff in the original cause, should pay to the Duke of Rutland, Lord Frederick, Lord George, and Lord John Cavendish, their costs of that suit, to be taxed by the Master; and that the plaintiff in the cross cause, should pay to the said Duke of Rutland, Lord Frederick, Lord George, and Lord John Cavendish, their costs of that suit, to be taxed by the Master; and as between the respondent Charles Morgan, and the appellants, no costs were to be paid on either side: and it was further ordered, that the bills in the original cause and cross cause, as to all other matters, except what were before mentioned, should stand dismissed without costs.

[347] Both parties appealed from this decree; Mr. and Mrs. Jones from so much of it as confirmed the Judges certificate, and declared, that Thomas Morgan the father, was entitled to all the lands in the counties of Monmouth and Glamorgan, devised by the residuary clause in Sir William Morgan's will, with remainders according to the limitations in that will; and that Charles Morgan was entitled to all the estates of Sir William Morgan, in the county of Brecon. And Charles and John Morgan appealed from such part of the decree as declared, that Mrs. Jones was entitled to all the ancient copyhold or customary estates in the country of Monmouth, mentioned in the schedule to the Master's report, under the head No. 3, which the testator Sir William Morgan was entitled to at and before his marriage, and which were not surrendered, or covenanted to be surrendered, to the uses of his marriage settlement, and that she was entitled to all other the copyhold or customary estates which were under the same predicament; and from such part of it, as ordered Charles Morgan to deliver possession thereof to Mrs. Jones, and all deeds, papers, and writings relating thereto; and as directed him and John Morgan to account for the rents and profits thereof, and the value of the timber cut therefrom.

The argument in support (E. Thurlow, G. Hill) of the original appeal, was divided into two parts. I. As to the lands comprised in Sir William Morgan's marriage settlement, and which were decreed to pass to Thomas Morgan and his sons, by the residuary devise in Sir William's will. II. As to the customary or copyhold estates in the county of Brecon.

I. It was said, that the clause in the will by which the testator disposed of the new purchased lands, (these being such as could not be comprised in the marriage settlement,) and of the Brecknockshire estates, contained a devise of these premises to certain trustees, for that purpose expressly named in the will, upon trust, that they should by mortgage or sale thereof, levy and raise so much money in aid of his personal estate, as should be sufficient to pay his debts and legacies; and then, that they should stand seised of the residue of those premises, to the use (but this was really a trust) of the several persons and for the several estates therein mentioned. This was expressly devising the legal estate to trustees for executory purposes; viz. for paying debts, and then enabling them to make a settlement; which settlement was undoubtedly to be framed and modified, under the directions, and according to the rules of a Court of Equity. But the clause under which the present question arose, concerning the Monmouthshire and Glamorganshire estates, was of a quite different nature, and was worded and penned in a quite different manner. It began with making no particular disposition of the legal estate on any special trust, but disposed of the whole beneficial interest, without any distinction between legal or equitable estates, for the benefit of the persons therein named. Indeed, the testator in this clause, by way of preamble, begins with saying, that

Forasmuch as it was his intent and meaning, that in case his two sons then [348] living, or any other son or sons of him lawfully begotten, thereafter to be born, should die without issue male, etc. that then all and singular his manors, messuages, etc. in the counties of Monmouth and