Page:The English Reports v1 1900.pdf/840

pursuant to a power reserved to him in the settlement of 1679, charged part of the lands with £1500, portions for his three youngest daughters by his first wife, the eldest having been provided for in his life-time.

[108] James Barry, during the troubles of Ireland in 1688, being obliged to borrow £900 for his and his family's maintenance, obtained, in 1697, an Irish act of parliament, reciting the settlement of 1679, as lost in the time of the rebellion, enabling him to charge the estate with his debts and sisters portions, and vesting the eleven plow lands of Rathcormuck in trustees, for raising by sale or mortgage, the £1500 portions and £900 debt. In pursuance whereof, part of the lands were mortgaged in December 1697 for £2400 to Thomas Broderick, in trust for the Earl and Countess of Orkney; and another part for £300 to John Galway, for a term of 1000 years; which mortgages afterwards became vested in Lord Doneraile and Mr. St. Ledger his brother, and in Redmond Barry, a grandson of old Redmond's.

James Barry had issue by Mary Anseline two sons, Redmond and James, and a daughter named Mary, and by a second wife he had two daughters, Catherine, married to John Townsend, and the respondent Elizabeth, married to Noblet Dunscombe; and in 1709, his son Redmond having attained twenty-one, they joined in a fine and recovery of the manor and eleven plow lands, the use whereof was declared to James in fee; who afterwards sold part of the estate to Dean Pomeroy, and presently after a decree of foreclosure was obtained by Lord and Lady Orkney, and their debt liquidated at £4211.

In 1716 James Barry died, having by his will, dated the 28th of April 1716, devised his estate of Rathcormuck to Catherine and Elizabeth, his daughters by his second wife, till £2500 should be paid them by his sons Redmond and James, for their portions; and after payment thereof, he gave his estate to his son Redmond for life, remainder to his first and other sons in tail male (chargeable with £700 to his daughter Mary by the first venter, with interest at £8 per cent. during her being unmarried; and if she should die unmarried, with power to charge the estate with £200 part thereof); remainder to his second son James Barry, and the heirs male of his body; and in case his daughter Mary should survive both her brothers, and they should leave no issue, that she should be paid the farther sum of £2000 chargeable on the estate; declaring, that what came to him by his father, in case his sons Redmond and James died without issue male, should go to the son or sons of his brother of the half blood, Redmond Barry of Ballyclogh, liable to the debts and portions in the will mentioned, and for want of heirs male of his body, to the testator's right heirs.

The estate being greatly incumbered with portions and mortgages, Redmond Barry in 1721, mortgaged part of it for £2000 to Dean Jephson, for payment of Lord and Lady Orkney's debt, which mortgage was subsisting and vested in the Earl of Kildare's representatives in 1721, he mortgaged another part to John Townsend, his half sister Catherine's husband, for securing £1100, the remainder of her portion; which mortgage was likewise subsisting and vested in Henry Tom and in 1723 and 1727, he and his brother James mortgaged other parts of the [109] estate to Noblet Dunscombe, his other half sister Elizabeth's husband, for £900 and £400 remaining due of her portion; and which mortgage was vested by mesne assignments, in Perkins Croston and William Buckner.

Redmond and James Barry, the one tenant for life, but unmarried and without issue, and the other the text remainder man in tail, agreed to join in a fine and recovery for barring all remainders, which was accordingly done in Easter term 1737, and the use declared, as to the mortgaged premises, to the several mortgagees and their heirs, according to their respective interests; and subject thereto, and as to the manor and other unmortgaged lands, to the use of Arthur Hill, esq. and his heirs, in trust, by sale or mortgage, to raise money for discharging the above incumbrances, with a farther sum of £5000 to be disposed of, as Redmond and James and the survivor should appoint; and as to the premises that should remain unsold, to the use of Redmond for life, remainder to his first and other sons in tail; remainder to James Barry and his heirs. But no disposition either by sale or mortgage was ever made by Hill under this trust; and James Barry the younger brother dying unmarried and without issue in 1744, in Redmond's life-time, the remainder in fee limited to him, vested in Redmond as his heir at law.