Page:The English Reports v1 1900.pdf/634

if so, a discovery of all the matters charged in the bill would be a discovery of nothing at all, and leave the appellant in just the same state he now was.

After hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the order therein complained of, affirmed. (Jour. vol. 31. p. 75.)

William Marquis of Powis, the appellant's father, being seised in fee of several castles, manors, messuages, and other real estates, to the amount of £10,000 a-year, and possessed of a personal estate to the amount of near £40,000, did by his will, dated the 6th of April 1742, charge his real estate in aid of his personal, with the payment of his debts, funeral, and other expences; and pursuant to a power reserved to him by indenture, dated the 22d of December 1736, revoked the uses thereby limited to his son William Lord Montgomery, afterwards Marquis of Powis, and gave the reversion expectant on the death of his said son, without issue male of and in his real estate, to Robert Kettleby and James Baker and their heirs, upon trust, to mortgage or sell so much thereof, as with his personal estate should raise money sufficient to pay his debts and legacies, together with the charges of the trust; and that the residue thereof, which should remain undisposed of for the purposes aforesaid, should be settled and assured, to the intent that the several persons to whom he had given annuities, should receive the same, such annuities to be issuing out of, and charged upon his said castles, manors, and real estates, and payable at such times as therein mentioned; in which settlement there should be contained the usual power of distress and entry, in default of payment of the said annuities; and upon further trust, that the trustees and the survivor and his heirs, should convey such residue of his real estate, subject to and charged with the said annuities, and the remedies for the payment thereof, unto his said son William Lord Montgomery, his heirs and assigns for ever; and the testator gave to the said Robert Kettleby and James Baker, and their heirs, during the life of his daughter the appel-[356]-lant, one clear annuity or yearly rent-charge of £200 tax free, payable at Lady Day and Michaelmas in every year in equal portions; upon trust nevertheless from time to time to pay the same annuity to the appellant, and not to any husband to whom she then was or should thereafter be married, nor to any other person or persons who might claim the same by virtue of any assignment or otherwise; his will and mind being, that the said annuity should be paid to the hands of the appellant, if in England, or to her attorney duly authorised to receive the same, to her sole and peculiar use only, and not into the hands of any attorney for the use of any other person; the testator declaring his intention to be, to make some suitable provision to support and keep the appellant from wanting necessaries, and not for payment of her debts which she had unhappily contracted, or for the support of any person besides herself; and he declared his will and mind further was, that any power of attorney under the appellant's hand and seal, and attested by two or more credible witnesses, should notwithstanding her coverture, if she was married or should marry, be sufficient authority to the person therein named as her attorney, to receive the said annuity for her use only; and the testator gave to the said James Baker all the residue of his personal estate, if any, after payment of his debts, annuities, and legacies, and appointed the said Robert Kettleby and James Baker executors, and gave each of them £100 for their care and trouble in the execution of his will, on condition that they proved the same, and took upon them the execution thereof.

In October 1745, the testator died, leaving William Lord Montgomery, his only son and heir, who by permission of Baker, who had survived Kettleby the other