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which the respondent claimed, with all the subsequent devises, except the residuary devise, was void in law; and Mr. John Wicker, as residuary devisee and legatee of the testator, became entitled, on the latter's death without issue, to the whole of the fund in question; and through Mr. John Wicker, the appellants, as standing in his place, were now entitled to it. This point not occurring till after the two hearings before the Lord Chancellor, was not argued before his Lordship, and therefore was not affected by the principle on which his Lordship pronounced a decree for the respondent. That the devise to the second, or younger sons of the testator's brother and sister, seemed to have been intended to operate in the event of both the brother's and sister's having a younger son, and not in the event of there being a younger son of one of them only; and as the brother died without having had any son, the devise, on which only the respondent could claim any interest in the fund in question, thereby became incapable of taking effect. This appeared to have been the intent, from the devise over to the testator's brother and sister equally to be divided between them, share and share alike, and to their respective executors and administrators: for the words of this latter devise were, on the contingency if his brother and sister should not have any such second or younger son; which was equivalent to the testator's having said, that if his brother and sister should not both have a younger son, then they should both take in their own persons. Nor was such an intent, though particular, unaccountable; because it might naturally flow from the equality of the testator's affection towards his brother and sister, whilst he was framing this part of the will. It only amounted to this, that the testator did not chuse to suffer one of two relations in equal degree to have an immediate and personal benefit, without a like benefit to the other. But whatever was the cause of such a disposition, it was demonstrable from a subsequent part of the will, that such was the intent of the testator; for in the event of his sister's not having a younger son to take, he qualified the former devise in her favour, by making her eldest son, and eventually the brother, substitutes for her youngest son, instead of making her the sole substitute: and therefore the will appointed, that, in case of the sister's not having a younger son, her eldest son should have the one half of his the testator's fortune; and that if both her eldest son and she herself should die before the testator, the brother should have the whole of his fortune. This latter devise necessarily implied an exclusion of the brother's younger son, in the event of the sister's not having a son to take; and therefore furnished the strongest argument, that in the testator's own sense the former part of his will would pass his property to his brother and sister personally, unless [451] both had younger sons to take. If the sister had died without a younger son, and she and her eldest had also died before the testator, the brother must have taken the whole against his own younger sons. As then the sister's not having a younger son led to an exclusion of the brother's younger son, how natural was it to conceive, that the younger sons of the sister were to be equally excluded in the event of the brother's not having a younger son? This construction was not directly contended for before the Lord Chancellor, and therefore had not received his Lordship's opinion. But should it prevail, the event which had happened, namely, the brother's not having a younger son, carried the fund in question in moieties to the respective personal representatives of the brother and sister; and consequently, one moiety would belong to the appellants Mrs. Wicker and Sir Thomas and Lady Broughton, as standing in the place of the brother. Who was the personal representative of the sister, whether the respondent, or his eldest brother Mr. William Mitford, was not stated in the pleadings; and therefore it did not appear, who, according to this construction, would be entitled to the other moiety.

Though the executory devise to the younger sons of the testator's brother and sister should be good, and though it should operate in the event which had happened; yet the appellants conceived that the respondent was entitled only to a moiety of the fund in question. The decree supposed, that the testator intended to distribute his property between the younger sons of his brother and sister per capita; and that as the respondent was the only younger son of either, he was entitled to the whole. But the appellants conceived, that the intention of the testator was to establish & distribution per stirpes, namely, to divide his property into two parts, and to give one moiety to the younger sons of his brother, and the other to the younger sons of his sister. In favour of this latter distribution the appellants submitted, not only that the words of the devise to the younger sous of the brother and sister would in themselves well bear such a