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would not thereafter trouble the defendant, as executor of the said Earl, it was ordered that he should deliver the said jewels to them.

From this decree the defendant appealed; insisting (S. Darell), that the respondents ought to have been decreed to perform the true meaning of the condition in the Earl of Macclesfield's will; by giving the appellant such a release as the Duke had, under his hand and seal, agreed to give the Lady Gerard, her executors and administrators; for that wills are always construed according to the intent of the testator; and that such a release must more especially be intended in this case, because there were no other differences between the parties, nor could any other trouble be given.

On the other side it was contended (J. Sloane), that no proofs were, either at law or in equity, to be admitted of the meaning of the will, but what arose upon the words and expressions of it; which make not the least mention of any such release as was insisted on by the appellant, nor was it reasonable to think that the Earl so intended; for the legacy seemed to be out of kindness to the Duchess, being part of her own mother's jewels, and of no greater value than £1200, whereas the value of the matters to be released was above £15,000. That it was not in the power of the Duchess to execute any such release; nor could the proviso be extended to the Duke, for he was not even mentioned in the will; and if it could, it would be putting it entirely in his power, whether the Duchess should or should not have the legacy, by his giving or refusing the release; which was inconsistent with the idea of a personal kindness in the testator to the Duchess. That the respondent's demand against Lady Gerard, did not affect the Earl, in his own right; and therefore it seemed far more reasonable to construe the proviso to mean, that the Duchess should not trouble or hinder his executor in the probate of his will; or even to declare it void, for being uncertain or insensible; than either to avoid the legacy, or extend the construction to such a release as the appellant contended for which, if the Earl had really meant, he would have expressed himself accordingly, and have directed the Duke to have joined in the execution of it.

After hearing counsel on this appeal, it was ordered and adjudged, that the decree complained of should be reversed; and that, if the Duke and Duchess of Hamilton should, on or before the 1st day of February 1704, and before the delivery to them of the jewels in the appeal mentioned, execute a sufficient release, in writing, to the said Lord Mohun, executor to the Earl of Macclesfield, executor of the Lady Gerard, or to his executors or administrators; and also (in case the said Lord Mohun should, be-[241]-fore such release given, die intestate) to the administrators de bonis non of the said Lady Gerard, of all demands which they, in right of the said Duchoss, had, or claimed to have, to or out of the personal estate of the said Lady Gerard, or the said Earl of Macclesfield, or of either of them; the said Lord Mohun should forth with deliver to them, the said Duke and Duchess, the jewels in question; but, in default of the said Duke and Duchess giving such release, or if they, or either of them, should sue or prosecute for any of the said demands, so to be released, within the time before limited, the bill of the said Duke and Duchess was to stand absolutely dismissed; and they were to be debarred from all benefit of the said legacy. (Jour. vol. 17. p. 388.)^[1]