Page:The English Reports v1 1900.pdf/939

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PHILIPS v. WALTER [1720]
II BROWN.

Essex and Kent were mortgaged, or otherwise encumbered, to more than their value.

In Michaelmas term 1706, the appellant by his guardian, exhibited his bill against the respondent in the Court of Chancery in Ireland, to have possession of the two poles of Mullahchrogh-[249]-rey and Cullakendes, and for an account of the profits thereof, from the death of the last testator, which happened in the year 1696; and also for a conveyance thereof, to him and his heirs.

On the 10th of February 1712, the cause was heard, when the court declared, that the estate of Ballyhaise was to have come clear to the defendant; and therefore referred it to a Master, to examine and state what were the debts and legacies left by Thomas the son, charged on the said estate and lands of Ballyhaise, and what was the amount of his personal estate; and upon the coming in of the Master's report, such further order should be made as should be just.

From this decree the plaintiff appealed, insisting (J. Jekyll, E. Northey), that the intent of his father's will was, that as soon as Ballyhaise should come to the respondent, by the death of Thomas his brother without issue, or without making any disposition thereof, he should then relinquish his right to the two poles of Mullahcroghrey and Cullakendes, to the appellant; and that by a plain and reasonable construction, this estate of Ballyhaise might be said to fall to the respondent, as soon as the debts and legacies, to which the same was subject, were discharged. That the respondent ought therefore to have been decreed to account for the rents and profits of Ballyhaise, and of the estate in England, devised to him by his brother's will, as well as for his personal estate, in order to satisfy the debts and legacies charged on Ballyhaise; and so soon as they should be discharged, to convey the said two poles to the appellant and his heirs.

On the other side it was contended (N. Lechmere, S. Cowper), that the estate of Ballyhaise did not descend to the respondent, as heir of his brother Thomas; in which case only, the executory devise of these two poles to the appellant was to take place. That the debts and legacies charged by Thomas the son on Ballyhaise, which the respondent had paid, and was liable to pay, amounted to the full value of that estate, and more than double the inheritance of the two poles, as they were at Thomas's death; and it was manifestly the intent of Thomas the father, that Ballyhaise should come clear to the respondent. Lastly, that the appellant's title was properly triable at law, as it depended merely upon the construction of the devise in the father's will; and there was no equitable circumstance in the case, to change or alter such legal construction.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the decree therein complained of, affirmed. (Jour. vol. 20. p. 163.)


[250] Case 5.—Peter Philips,—Appellant; John Walters, and Others,—Respondents [17th February 1720].

[Mew's Dig. iii. 2064.]

[J. S. founded a lectureship, with a salary of £50 per ann. charged upon his lands for the Lecturer, so long as he should attend the charge of diligent preaching there once every Sunday, if he should not otherwise, by necessity, be hindered; and when the lectureship should be void by death, removal, departure, or otherwise, the trustees were to appoint a new Lecturer. A. was appointed to this lectureship, but some time afterwards becoming greatly indebted, he withdrew himself, and continued abroad for several years. Held, that A.'s extravagance was not such necessity as could be pleaded in his excuse; and that his so withdrawing himself was such a departure, as justified the trustees in appointing a new Lecturer.]

Viner, vol. 4. p. 494. ca. 14. 2 Eq. Ca. Ab. 199. ca. 4.

Sir John Walter, bart. formerly Lord Chief Baron of the Exchequer, by indenture dated the 29th of September, 2d Charles I. conveyed to trustees and their heirs, certain

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