Page:The English Reports v1 1900.pdf/726

issue male, who should live to twenty-one, he gave, directed, limited, and appointed, all and singular his manors, lands, etc. in the said counties of Warwick and Salop, the uses and estates whereof he had thereby revoked as aforesaid, to Lord Cadogan, Sir Henry Englefield, and William Plowden, esq. and their heirs, upon trust with all convenient speed after his decease without issue male of his body, who should live to attain the age of twenty-one, by sale, mortgage, or other disposition thereof, and by and with the rents, issues, and profits thereof in the mean time, to raise so much money as would answer and pay all and every his just debts, funeral expences, and the several legacies and yearly rent-charges, thereby given and bequeathed, in case he died without issue male as aforesaid. And after his said trustees by sale, mortgage, or otherwise, should have paid all his debts and funeral expences, and all and singular the legacies and yearly rent-charges thereby given and bequeathed, he gave, directed, and appointed to his said trustees, and to the survivors and survivor of them, his heirs and assigns, the rest and residue of his said manors and hereditaments which should remain unsold, or undisposed of by them for the purposes aforesaid; upon trust to convey and assure the same unto his said uncle Charles Smith for his life, without impeachment of waste, and to his first and other sons successively in tail male; remainder to his uncle William Smith, for life, without impeachment of waste, remainder to his first and other sons successively in tail male, with remainder to the testator's own right heirs. The testator then disposed of all his personal estate in the words following, viz.

And as to all my personal estate of what nature or kind soever, I give the same unto my said daughter Mary Teresa Carrington, if she shall live to attain the age of twenty-one years; but if she shall happen to die under that age, then I give the same, and all the profits arising therefrom, unto my uncle Charles Smith for his life, and afterwards to my dear uncle William Smith.

And the testator devised all his other real estates to the same trustees, upon trust to come in aid of his other estates before devised, for payment of his debts, legacies, and annuities, and to be conveyed in like manner with his other estates.

The testator afterwards made a codicil to his will, whereby he gave several additional annuities and pecuniary legacies. He also entered into several contracts for the sale of his Leicestershire estate, but before the same could be carried into execution, he, on the 21st of May 1749, died without issue male; and without revoking his will, leaving Mary his widow, and Mary Teresa his only child and heir at law.

[491] After the testator's death, Lord Cadogan and Sir Henry Englefield carried his said contracts into execution, and upon executing the conveyances of the Leicestershire estate to the several purchasers thereof, they received £28,253 being the price for which the testator had contracted to sell the same. They also, with the privity and consent of the said Charles Smith, sold the Lincolnshire estate for £3649 and afterwards in like manner sold part of the Warwickshire estate for £7082 5s. and with the like privity and consent of the said William Smith, raised by mortgage of the testator's estates remaining unsold, £2500.

In August 1753, Charles Smith, the testator's uncle and first devisee, died without issue; and on the 1st of May 1754, Miss Carrington died a minor and unmarried.

The testator had no brother, but had three sisters; namely, Mary, who died without issue in his life-time; Constantia, the late wife of the respondent, Peter Holford, and mother of the appellant by her first husband, John Wright, esq. and also mother of the respondent Catherina Maria Holford, by the said Peter Holford her second husband, but who was a widow at the death of Miss Carrington; and Catherine still living and unmarried: so that Miss Carrington at her death left the said Constantia and Catherine her aunts and co-heiresses at law, whereby the reversion in fee of the estates unsold descended to them, subject to the estate for life of William Smith the uncle, and a limitation to his first and other sons in tail male.

In 1755, a marriage was agreed upon between the respondent Peter Holford, and the said Constantia; previous to which marriage, by indenture tripartite, dated the 15th of September 1750, between the respondent Peter Holford of the first part, the said Constantia, then Constantia Wright, of the second part, and Sir Edward Smith, bart. and Thomas Bramson, esq. of the third part; after reciting,