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way appear that Ann had any thoughts or intention of giving away this portion, or that there was any discourse about it, but all she could be presumed to mean by this gift, was the ready money, jewels, and other things which her grandmother (the Lady Morgan) had given her; and that the respondents themselves laid no stress upon this nuncupative will, but took out administration to Ann as intestate, and never set up the will till seven months afterwards, when the clergyman swore to it from his short-hand notes; and that appellants were strangers to those proceedings, nor if they had known of them, could they by the course of the Prerogative court have opposed them; and respondent's probat was not examinable in Chancery; and appellants insisted that the respondents ought not to be favoured, for Lady Kemeys for a portion of 5000l. had a jointure of 800l. per ann. dispunishable of waste, and that Sir Charles had cut down 1000l. worth of timber and wood, and particularly groves, ornaments of the family seat at Rapera, and destroyed the deer there; and respondents had received the profits of the estate for 17 years, and gained 15 years profit of the rest of the estate, not in jointure, worth 1300l. per annum, and also received the profits of another estate worth 700l. per annum; and appellants further shewed that after this cause had been by the Lords ordered to be heard, respondents brought a cross appeal, [115] complaining that both the portions of 5000l. with interest, are not appointed to be raised by the said decree, and desiring that the decree may be altered and rectified in that behalf, which respondents insisted there was no colour for; and that it appeared upon comparing both deeds, that the only reason for making the last settlement in 1676, was because there was then issue a son and a daughter, and by the first settlement in 1674, no provision was made for daughters but in case of failure of issue male; and the 5000l. demanded by this cross appeal, did not become due to Ann till after the inheritance had descended upon her. (William Dobyns.)

The respondents shewed on the other hand, that the greater part of the premisses comprised in the settlement of 1676, had been the estate of Sir Thomas Morgan, and Lewis Morgan, William Thomas's maternal grandfather, unto whom the appellant Elizabeth was not any ways related, and yet, as being heir at law of William Thomas, she had under that settlement become intitled to, and enjoyed those estates; and that Ann survived her brother, arrived to the age of eighteen years, and 20th August, 1694, made a will, of the import stated by appellant, and that dame Mary Kemeys took out administration to Ann her daughter, with her will annexed; and she soon after dying, Sir Charles Kemeys took out administration, de bonis non, to Ann, with her will annexed; but respondents did not state the will to have been nuncupative, nor that dame Mary first administered to Ann as intestate, but stated that Sir Charles and dame Mary Kemeys, in order to recover the two sums of 5000l. together with arrears of Ann's maintenance, with interest from the times payable, brought ejectments in the trustees names, and obtained judgment, and that then appellants filed their bill, and such decree made as stated by appellants; and respondents insisted that Sir John Thomas's appeal ought to be dismissed, and that upon the cross appeal both sums of 5000l. ought to be decreed to respondents, and that the two separate settlements had provided for the raising two several 5000l. upon several and distinct funds payable at different times, and upon distinct and different contingencies, and provided different sums for maintenance in the moan time, without any declaration in either settlement, that the one sum was intended in lieu or satisfaction of the other, and that the terms (being lodged in trustees) were not [116] merged or extinguished; and that, as there was a legal remedy left at law for recovery thereof, there was no reason for a court of equity to interpose for the benefit of a remote relation, though heir at law; and that the two sums of 5000l. and 5000l. were in their nature personal estate, and as such vested in Ann, who was of sufficient age to dispose by will, and had sufficiently disposed thereof; and that the inheritance descending upon her, ought not to turn to her prejudice, or disable her from disposing of her personal estate; and insisted that there was no precedent where a Court of Equity had decreed an extinguishment in a case of this nature; and that such new construction ought not to be introduced in this case, appellants enjoying above 2000l. per annum (subject only to the demand in