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retrenched lands: And that a court of equity never assisted to defeat the title of a mortgage, (Richard Turner.)

Die Veneris, 4 Aprilis, 1707. After hearing council on this appeal, the Lords adjudged it to be dismissed, and the decrees appealed from, affirmed. Lords Journ. p. 313.

The appellants made this case: That Gamaliel Warter, seised in fee of lands called Bilbo and Colenemony, and by lease of three lives renewable of lands called Cullin, and seised of divers other lands, tenements and hereditaments, in the Counties of Limerick and Tipperary, in Ireland, died in August, 1681, leaving two sons, John and Edward; and that Edward possessed himself of the whole estate, pretending his father had made a will in his favour, and, about June, 1685, died, leaving issue three daughters, respondent Catherine, appellant Margaret, and Anne, who died an infant, and that John survived Edward; and that Edward's daughters being very young at his death, Sir Thomas Osborne, James Harrison, and Alice Osborne, Edward's widow, and daughter of Sir Thomas, pretended Edward had made a will, 10th April, 1685, devising Bilbo, and the rest of the inheritance, to respondent Catherine; Cullin to the appellant Margaret; and Emly to Anne; and made them executors, and entered into the estate, and applied the profits to their own use; and that, in 1698, respondent Story married respondent Catherine, and, in 1702, appellant Wilson married appellant Margaret, and thereupon Wilson was put in possession of Cullin by respondent Story, and the pretended executers of Edward all declaring it then to be the right of his wife, and appellants enjoyed Cullin for half a year; but respondent Story, 5th of February, 1702, filed a bill in Chancery in Ireland, and therein insisted Cullin was not devisable by Edward's will; and that in right of respondent Catherine, he was intitled to a moiety thereof; and upon the respondent Story's affidavit of his three years possession of a moiety in her right, he obtained an injunction directed to appellants: And on the 5th of May, 1703, the respondent Story, and Edward's pretended executors, filed another bill in that Court, setting forth that they had impowered him to manage Cullin, and [383] all the estate; whereupon he prayed another injunction to be quieted in possession of all Cullin, and made another affidavit of his three years possession of the whole, under the title of the said executors; and that by this unfair dealing, appellants were forced to enquire into respondents title, and discovered that Gamaliel made no such will as Edward had set up, and that appellant Margaret had a right to a moiety thereof, as one of the nieces and co-heirs of John, Gamaliel a eldest son and heir, wherefore appellants, in 1703, brought their ejectment in the Exchequer for a moiety of Bilbo and Colenemony, and upon full evidence obtained a verdict against Gamaliel's pretended will: And that after this verdict, respondents, 27th October, 1703, filed a third bill, and made appellants, and the said pretended executors, defendants; charging that Gamaliel being seised of Bilbo, Colenemony, Cullin, and other lands, did, by articles under his hand and seal, the 28th of January, 1680, upon a marriage to be had between Edward and Alice, and of 1400l. portion, agree to settle all his estate, for securing 300l. per annum, for their maintenance, during Gamaliel's life, and for a jointure for Alice after his death, then all the estate (except Barndarick) which was to be settled on John (who they pretended was an idiot) was to come to Edward and his heirs, charged with 100l. per ann. jointure for Gamaliel's widow; and that the marriage was had, and the portion paid, and that Edward entered into all the estate after his father's death; and by his will devised 300l. per annum to his wife, and Bilbo to his mother for her life, for a maintenance for his daughters, and devised all the estate to the pretended executors for payment of debts; and after debts paid, devised all the inheritance to the respondent Catherine, Cullin to appellant Margaret, and Emly to Ann; and that, in 1698, respondent Story married Catherine, and thereupon the pretended executors put the estate into his hands, and that he undertook to pay