Page:The English Reports v1 1900.pdf/261

This appeal was from a decree in Chancery, made 3d February, 1699, in a cause wherein Rebecca Jenkins, respondent, Philip's, mother and respondent Susanna, then Susanna Rainbutt, widow, were plaintiffs, and Christopher Stokes the elder, deceased, and others defendants; and thereby, amongst other things, a lease for three lives of the parsonage of Whitchurch, and also the houshold stuff and goods in the parsonage house, were decreed to said Philip and Susanna, as heirs at law of Mary Ayliffe, widow: And appellant stated, that the master and brethren of St. Cross, nigh Winchester, 2d August, 35. Car. 2. had demised the parsonage of Whitchurch to said Mary Ayliffe and her assigns for her own life, and the lives of Jane Brookes and Thomas Brookes, and the longest liver of them: And that said Mary Ayliffe, 15th August, 35. Car. 2. had previous to her marriage with said Christopher Stokes the elder, and with his consent assigned over that lease to trustees in trust, to permit her to receive the rents and profits during her life; and after her death to permit such child or children as she should leave at her death, and their heirs, equally share and share alike, to receive the rents, issues and profits, for the residue of the term and estate and if she died without children, then in trust, to permit the said Thomas Brookes, if then living, or if dead, such child or children of his as should be then living, to receive the rents and profits for the remainder of the term; and if he died in her lifetime, leaving no child, that then the trustees should dispose of the premisses to such person or persons as at her decease should be her heir or heirs at law: And that said Mary Ayliffe did, by another deed of the same date, in like manner assign over to the same trustees all her houshold goods and plate, in or about the said parsonage house, in trust, to permit her to use them during her life; and after her death to deliver them over to the person or persons who immediately upon her death should [193] be intitled to the trust of the dwelling house in Whitchurch; and that Mary Ayliffe died without issue, in May, 1690, Jane Brookes and Thomas Brookes having died before her without issue; and that the said lease being thereby totally determined, the master and brethren of St. Cross entered upon the premisses, and, in May, 1691, demised the said parsonage and tythes of Whitchurch to said Christopher Stokes the elder, for the lives of said Christopher the elder, Christopher Stokes the younger, and Francis Stonehouse, Esq. and, that said Mr. Stokes had paid a fine of 1800l. for that lease: And that, in Easter term following, said Rebecca Jenkins and Susanna Rainbutt, as heirs at law to said Mary Ayliffe, exhibited their bill in Chancery, to compel the said Christopher Stokes the elder to transfer to them his new lease for three lives, and to account for the profits from his wife's death, and to deliver the houshold goods; complaining that Mr. Stokes had obstructed his wife's renewing the old lease; and that Mr. Stokes had by his answer claimed the goods as administrator to his wife, and the new lease as a purchaser; and insisted that the old lease being determined, all the trusts relating to it were determined, and denied he ever obstructed his wife's renewing the old lease: And that, before the cause came to hearing, Mr. Stokes the elder died, and by his will gave the new lease to his son and heir, Christopher Stokes the younger, since dead, and that appellant was administrator and heir to the father and son: And appellant further stated, that Rebecca Jenkins likewise died, and respondent, Philip Jenkins, was her heir and executor; and that the said suit was revived; and on the hearing the late Lord Chancellor declared that Mr. Stokes the elder, being privy and party to his wife's said trust assignment, had excluded himself from all right of taking a new lease to his own benefit; and therefore decreed that the said Christopher Stokes the younger, should account for the rents and profits since the death of Mary Ayliffe, and should be allowed the fine paid for the new lease with interest, and should assign the new lease to the said Susanna Rainbutt and Philip Jenkins, free from all incumbrances induced by him or his father; which decree appellant contended ought to be reversed; because the old lease, and all the trusts concerning it, were determined by the death of the last Cestuiquevie named in that lease; and [194] because there was no agreement or provision for filling up the lives, or renewing the old lease, which could not be an