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jointure; remainder as to the whole, to his first and other sons by her, in tail male; remainder to trustees for a term of 500 years, to raise portions for daughters; remainder to the heirs male of his body; remainder to his uncle Heneage (the present earl) for life; remainder to trustees to preserve contingent remainders; remainder to the first and other sous of the said Heneage, in tail male; with remainders to his other uncles and their issue male; remainder in fee to his own right heirs. But by this settlement, Earl Charles reserved to himself a power of revoking all the uses thereby limited; except those to Countess Sarah and her issue, and to limit such other uses as he should think proper.

In the year 1700, Earl Charles became greatly indebted, and though he had then no issue mule, yet as there was a probability of it, he could not make any part of the settled estate a security for the payment of his debts; and therefore he applied, by the Lord Weymouth, to Countess Elizabeth, requesting her to join with him in charging her jointure-estate, after her death, with £6000; and, to induce her to comply with this request, he offered to settle all his other estates in such manner, as that after his death, without male issue, they should come to her son John Finch, in tail male. Accordingly it was agreed, that the countess should make a conditional surrender of her jointure, to enable the earl to suffer a recovery, and bar all estates tail in that part of the estate; and that he should convey it to trustees, for the purpose of raising the £6000, and then settle the same, and all his other estates, so as upon failure of his issue male, they might after his death, come to the respondent Earl Heneage, for life (subject to the jointure of Countess Elizabeth, and the £6000 mortgage) and to his first and other sous, in tail male; remainder to the said John Finch for life, and his first and other sons, in tail male; remainder to the several other uses in the settlement of 1694; and that proper conveyances should be prepared by one Mr. Johnson for these several purposes.

Pursuant to this agreement, the Countess Elizabeth executed a surrender of her jointure-estate; and thereupon Earl Charles suffered a recovery, and afterwards joined with the countess in a conveyance thereof, to trustees and their heirs, to the use of the countess for life, and with power to the trustees to mortgage the same for [147] £6000; and, in order to fix the limitations of all the estates in the male line of the family, according to the agreement, the earl delivered to Mr. Johnson the settlement of 1694, that he might prepare proper conveyances for that purpose; but he being of opinion, that a release of Earl Charles's power of revocation under that settlement would be sufficient, he prepared such release only, and the earl executed it.

About eight years after the agreement, it was discovered, that Earl Charles, in failure of issue male by his wife, Countess Sarah, had a remainder limited to the heirs male of his body, which the release of his power of revocation did not destroy; and therefore, in 1709, the earl suffered a recovery of all the estate comprised in the settlement of 1694; whereby he became seised in fee thereof, but never resettled the same, pursuant to the above agreement; so that upon his death without issue, which happened in August 1712, the estate descended to the appellant Mrs. Herbert, as his heir at law, subject to several mortgages and other incumbrances which then affected the same.

But in Michaelmas term following, Mr. Finch and the several other persons who would have been interested in this estate, in case the same had been settled according to the agreement, exhibited their bill in Chancery against the appellants and other necessary parties; praying, that this agreement might be fully and effectually performed and carried into execution.

The evidence adduced in support of the agreement, were certain letters which had been written by Earl Charles, the Lord Weymouth, and Dr. Leopold Finch, to Earl Heneage the respondent; and the several conveyances which had been executed by Earl Charles and the Countess Elizabeth.

On the 9th of July 1713, the cause was heard before the Lord Chancellor Harcourt; when his Lordship declared, that the agreement between Earl Charles and the Countess Dowager Elizabeth, was proved by written evidence, as well as by the depositions taken in the cause; that there had been a complete execution of it on the part of the countess, by making a conditional surrender of her jointure, and

joining with Earl Charles in a conveyance, enabling him to take up the £6000;