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that they filed their bill for relief within a short time afterwards. And as to a fourth objection, that if the marriage articles should be allowed to controul and vary the settlements, it would affect the purchasers under Richard Erisey; it was answered, that the appellants had not brought their bill against any purchaser: but as to those parts of the estate which were sold by Richard, they only prayed to have a satisfaction for the same out of his personal estate, which was principally acquired by means of those sales, and in breach of trust. Besides, by the conditions which in his will he had annexed to the trifling and fruitless bequests to the appellants, his grand-daughters and heirs at law, he seemed to be aware of the injury he had done them, and that his personal assets would be liable to their demands in respect thereof. It was therefore hoped, that the decree of dismission would be reversed; and the appellants relieved agreeable to the nature of their case.

[232] On the other side it was contended (T. Lutwyche, N. Fazakerley), that there was no precedent of a court of equity having interposed to carry articles into strict settlement, in favour of heirs female in any case; and much less in a case of this nature, where part of the consideration of both the settlements was the continuance of the name of the Eriseys, which could not subsist long in females; and where the remainder limited to them, was to commence after failure of issue male of Richard Erisey by any other wife, and consequently after an estate tail in him; which remainder is of no account in the law, as being subject to be every day barred by the tenant in tail in possession. That the settlements being both made before marriage, and prepared by Sir Peter Killegrew's own counsel, and the parties having maturely deliberated thereon, as appeared by the razure in the first settlement, and Sir Peter's letter; it was evident, that the parties fully agreed to the settlement as now made, and if the same varied from the terms of the articles, it ought to be taken as a new agreement; and the articles being carried into execution by a settlement formally and deliberately made, previous to the marriage, the parties ought to be bound and governed thereby. That the bill was not brought against James Erisey, who was to perform the covenant, or against his heir at law; but against the respondent as devisee of Richard, who did not appear to be, nor was the heir to James; whereas nothing moved from Richard, he being to take such estate and interest only, and in such manner as James thought fit to settle upon him. That it would be dangerous to the purchasers of the several estates sold by Richard Erisey, if by the two common recoveries he could not bar the estates tail and remainders; for the purchasers could not purchase but under and with notice of the two settlements, they being his only title; and it being said in both of them, that they were made in pursuance and performance of the articles, the purchasers must consequently have had notice of those articles. That the decree contended for by the appellants, might shake very many settlements made even before marriage, where there happened to be any variation from the articles; though such variations really proceeded from a new agreement between the parties, which, after some distance of time, it might be very difficult to prove. And as to the omission of trustees to preserve the contingent remainders, it was very difficult to account for every omission in the limitations of a settlement, and especially at so great a distance of time; but as to this omission, there had no inconvenience ensued, and though the intention had been to secure an estate tail to the son, it did not follow that it should be so for the daughters; neither was it so usual to settle an estate in strict settlement upon daughters, as upon sons; nor did it appear to be the intention of the parties in this case, but rather the contrary, from the different manner of wording the limitations in the settlements. And therefore it was hoped that the decree would be affirmed, and the appeal dismissed with costs.

But, after hearing counsel on this appeal, it was ordered and adjudged, that the decree therein complained of, should be re-[233]-versed: And it was further ordered and adjudged, that the defendants Worth and Hearle, and the respondent Mary Erisey should convey such of the lands contained in the marriage articles of the 23d of December 1685, as were conveyed to the said Worth and Hearle, and Samuel Trefusis, esq. deceased, and their heirs, by the deeds of the 15th and 16th of February 1700, and had not been sold, to the appellants Mary