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certainly not conformable to the sense in which the respondent's family and counsel originally understood the extent of his own claim; for though the decree now appealed from gave the respondent the whole of the fund in question, yet in his first application to the Court of Chancery, he confined his claim to a precise moiety.

On the other side it was argued (Ll. Kenyon, J. Dunning), that though John Wicker and Mrs. Mitford, the testator's brother and sister, if neither of them had had a second son, would, under the former clause in the will, have taken the testator's fortune between them in moieties, the testator having, in that event, given it to them expressly in that manner, yet the preceding gift to their second or younger sons was not a gift of a moiety of the fortune to the second or younger sons of each, but was a gift of the whole fortune to all their second or younger sons; and the words, equally to be divided, imported nothing more than that if they both had had more younger sons than one, all those younger sons should take equal shares of the whole; and the division in that respect would have been the same, whether they both had had the same number of younger sons, or whether one of them had had a greater number than the other, the event being, that Mrs. Mitford had only one younger son, and John had none; that only younger son consequently became entitled to the whole. This, it was submitted, was the plain and natural meaning of the bequest itself; and this construction was corroborated by the gift over to the brother and sister, which was to take effect if the sister and brother should not have any second or younger son, the testator, as it should seem, emphatically using the word son in the singular number; and as that contingency did not happen, the gift over could not take effect. That the subsequent proviso, by which one half of the testator's fortune was given to William Mitford the son in case the testator should die without issue, and his sister Mitford should not have a second son or younger son born of her body, made no variation in the original disposition in favour of the younger sons of John Wicker and Mrs. Mitford; and it was in truth nothing more than letting in William, in failure of a younger son, to take a moiety of the fortune in preference to his mother. And the reason for the testator's taking notice in that proviso of Mrs. Mitford's not having any second or younger son, and not making any mention [454] of John's not having a second or younger son, was sufficiently obvious; Mrs. Mitford having then an eldest son living, and John not having any, it was natural enough to give a son of Mrs. Mitford's son, who was living, a preference to his mother, in the half of the fortune otherwise intended for her; and the testator not having given any such preference in favour of an elder son of John, plainly indicated, that when he made that variation in the prior disposition of his fortune, he did it upon the presumption that his brother John would not have a son. If the event had been, that John had had younger sons, and Mrs. Mitford none, it was conceived that this proviso would not have had any effect to deprive the younger children of John of the benefit of the prior bequest, and that notwithstanding that proviso, the younger children of John would in that case have taken the whole of the fortune.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed, and the decree therein complained of, affirmed. (M. S. Jour. sub anno 1782. p. 909.)

This was an ejectment brought in the Court of King's. Bench by Joseph Goodtitle, lessee of Morris Bailey and Ann his wife, Samuel Margerum and Elizabeth his wife, and Thomas Davis and Lydia his wife, against Evan Pugh and Samuel Pugh, for eject-