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his life; and after his death, to and for such uses and purposes as he should by his last will, or other instrument under his hand and seal, attested by two or more witnesses, appoint; and in default thereof, to the use of his right heirs.

Richard Erisey had no issue male by Frances his wife, and only one daughter named Mary, who was born before the recoveries were suffered; she afterwards married John West, and they had issue the appellants their only children. Mary the mother died in January 1715.

On the 20th of December 1722, Richard Erisey made his will, and thereby gave to the appellants his grand-daughters £20 to be divided between them in lieu of mourning, to be paid at the end of 13 calendar months after his death, if they should be then [229] living; provided, that no trouble in law or equity should be given to his executrix by any person whatsoever. He gave to the appellant Frances West, if she should outlive her grandmother, the testator's wife, and the said John West her father, £20 per ann. for her life; the first payment to be made at the end of the year after their decease, provided no trouble in law or equity should be given to his executrix. He also gave to the appellant Frances all his right, title, and interest to a bond of Sir Peter Killegrew's for £1500 then in the possession of Frances his wife, for the enjoyment of the yearly interest thereof for her maintenance; but if any trouble in law or equity should be given to his executrix, he gave all his interest in this bond to her.—He then gave the residue of the estates which remained unsold to the respondent Mary Erisey his sister, and her heirs; except a small tenement, parcel thereof, in trust for the respondent Thomas Barrable, and made the respondent Mary Erisey sole executrix of his will, and gave her all his personal estate.

In the month of January following Richard Erisey died, and left a personal estate to the value of £7000 and upwards; all, or the greatest part whereof, was acquired by sale of several parts of the settled estates. Whereupon the respondent Mary Erisey entered on the real estate which remained unsold, except what was in jointure to the said Frances Erisey, and possessed herself of all the testator's personal estate.

In September 1725, the appellants, who were the only daughters and issue of Mary West, who was the only daughter and issue of Richard Erisey, by Frances his wife, exhibited their bill in the Court of Exchequer, against the respondents, and Thomas Hearle, and John Worth, the surviving trustees; insisting, that it was the intent of the marriage articles and of the parties thereto, that the estate in question should be settled in strict settlement, viz. to the use of the said Richard Erisey for his life, without impeachment of waste with the usual and common provision to preserve contingent remainders; and then to the use of the first and other sons of the said Richard by the said Frances, in tail male successively; remainder to the first and other sons of the said Richard by any other wife, in tail male successively; remainder to the daughters of the said Richard by the said Frances, in tail general; and that it should not be in the power of Richard to bar either the sons or daughters of the marriage, by fine, common recovery, or otherwise that the limitations in the two settlements under which Richard Erisey, by construction of law, became tenant in tail, and the omission therein of trustees to preserve contingent estates, proceeded from the mistake or carelessness of the counsel who drew the same, and not from any agreement or intent of the parties to vary the terms of the marriage articles; for that the settlements were expressly mentioned to be made in pursuance and performance of the said marriage articles: that the parties did not come to any new agreement to vary the terms thereof; and therefore the appellants, who were in the nature of purchasers in consideration of their grandmother's marriage and marriage [230] portion, prayed that the respondent Mary Erisey, as a volunteer under the will of Richard, might execute a settlement pursuant to the intent of the marriage articles, and make satisfaction for the lands sold by Richard Erisey, out of his personal estate; who took advantage of the mistakes in the settlements, and suffered the recoveries to bar the issue of the marriage, contrary to the intent of the articles.

To this bill the respondents put in a plea and answer, and pleaded the marriage articles, the two settlements, the common recoveries suffered by Richard Erisey, the deed to declare the uses thereof, and the devise by his will to the respondent