Page:The English Reports v1 1900.pdf/223

in failure of issue male, William, by indenture, 20th March, 1676, conveyed divers other lands, then in jointure to Dame Ann Morgan and Jane Oldsworth, unto Lord Wharton and Goodwin for 200 years, to raise 5000l. for daughters, and if but one daughter for her, payable at her age of 16 years or marriage, and 30l. a year maintenance for each daughter till eight years old, and then 60l. till her portion payable: Provided, if William should afterwards make satisfaction, or provision for such daughter, to the contentment of Lord Wharton, and Goodwin Wharton, then the term of 200 years to be void: and William died 1677, leaving issue a son and daughter, viz. Edmond, afterwards Sir Edmond, and the said Ann.—Sir Edmond died without Issue, 17th January, 1692, being then about 19 years old, whereupon the whole family estate, near 3000l. per. annum, descended to the said Ann as heir at law; and Sir Edmond made his mother, the late Lady Kemeys, his executrix, whereby she got to her own use the profits of his whole estate, which she had received for 15 years as his guardian, worth above 30,000l. and Ann, the daughter, attained her age [113] of 18 years, 10th August, 1694, and died of the smallpox 24th August, 1694; and during her illness a clergyman, who attended to pray with her about two days before she died, asked her how she would dispose of what she had? she answered, in general words, "all that is in my power to give, I leave to my mother, brother and sisters," (meaning Charles, Jane, and Mary Kemeys, her mother's children by Sir Charles) and also gave some specifick legacies, and some small money legacies to other persons; which words the clergyman wrote in short hand, but when written did not appear: Soon after her death, Sir Charles Kemeys and his Lady took out administration as if she had died intestate, but about seven months afterwards, upon better consideration, procured some of the legatees to sue them in the Prerogative court, to repeal that administration, and thereupon an administration, with such nuncupative will annexed, was granted to Lady Kemeys; and by this nuncupative will they gained two houses in Holland worth 2000l. and about 4000l. money in the Bank of Holland, which would otherwise have come to the appellant as heir; besides which Ann had 4000l. ready money, and securities for great sums of money and jewels of great value, all given her by the Lady Morgan, her grandmother, all which, as personal estate, together with two years rents and profits of the whole real estate, received during the life of Ann (not charged with the 5000l. portion) came to Lady Kemeys and her three children, under the nuncupative will; yet Sir Charles Kemeys and his Lady claimed said two sums of 5000l. a-piece, so limited for the portion of Ann, and brought ejectments, and got judgments therein in the name of the trustees; whereupon appellants brought their bill in Chancery against respondents, for an injunction to stay proceedings on said ejectments, and to compel them to assign the trust terms to appellants; and 9th March, 1696–7, the cause was heard before the late Lord Chancellor, who declared that the terms for years were not discharged by the inheritance vesting in Ann, and that the 5000l. portion limited by the last settlement, ought to be raised and stand charged upon said estate, together with several sums for maintenance for Ann till her age of 16 years, and from thenceforth full interest for said 5000l. and decreed an account of the profits of the trust estates from the death of Sir Edmond to the death of Ann, but gave no direction how same should be applied, nor [114] reserved the consideration thereof, or referred it to a master to compute any account of the said 5000l. and maintenance and interest; but declared that upon construction of the trusts, one 5000l. only ought to be raised; and appellants insisted that the portion of 5000l. was designed as a provision for the daughter, in case she should have nothing else, and ceased when the reason and occasion of raising it ceased; namely, when the estate and inheritance out of which it was to be raised descended upon Ann; for it were against reason that her own estate should he debtor to herself, and the portion once ceased, the estate ought to remain discharged in the hands of appellant to whom it descended. And that it was not in the power of Ann by nuncupative will to revive the portion, or continue it as a charge upon her inheritance, because she was an infant; and that although she had made a deed by express words to charge the portion, or had appointed it to be raised out of her inheritance, such deed would have been void by reason of her infancy; and further, that it did not any