Page:The English Reports v1 1900.pdf/955

The testator George Barlow being possessed of a considerable personal estate, by his will, dated the 20th of May 1727, devised in the words following:—

I give and bequeath unto my kinsman Charles Barlow, (meaning the appellant,) son of Edward Barlow, deceased, an infant now at school at Mr. Phipps's, at Westham, in the county of Essex, the sum of £8000, of lawful money of Great Britain, to be paid to him when he shall attain his age of twenty-one years: but in case the said Charles Barlow shall happen to die before he shall at-[273]-tain the said age of twenty-one years, then I give the said sum of £8000 with all benefit, interest, and improvement thereof, unto my kinswoman Mary Barlow, (meaning the respondent Mary,) an infant under the age of twenty-one years, now being with Mrs. Farrington in Blackmoor-street, in Southwark, in the county of Surrey, to be paid to her at the day of her marriage, in case she shall marry with any person of the surname of Barlow; but if she shall marry a person of any other surname, then from and immediately after such last-mentioned marriage, I give and bequeath the said £8000 and the interest, produce, and improvement thereof, unto my friend Henry Best of London, packer. Item, I give and bequeath unto my said kinswoman Mary Barlow, the sum of £1000 to be paid to her at her age of twenty-one years, or day of marriage, which shall first happen; but in case she shall die before she shall attain the said age of twenty-one years, or be married, then I give the said £1000 to my kinsman Charles Barlow, to be paid to him at his age of twenty-one years. Item, In case the said Mary Barlow shall marry with any person of the surname of Barlow, then I give her the further sun of £1000 of like money, to be paid her on the day of such her marriage with a Barlow aforesaid; but if the said Mary Barlow shall die unmarried, or shall marry a person not bearing the surname of Barlow, then I give the said last-mentioned sum of £1000 unto the said Charles Barlow, to be paid as aforesaid.

And the testator, by his will, directed that his executors should, as soon as conveniently might be, lay out the said several sums in Bank and South-Sea annuity stock, for the benefit of the appellant and the respondent Mary respectively.

Soon after the testator's death, which happened on the 4th of July 1727, the respondent Mary, not regarding the condition or terms put upon her by the will, intermarried with the respondent Robert, who was then an apprentice to a coach-harness maker, and whose father's name was Bateman, and who was himself christened, called, and known by the name of Robert Bateman.

The appellant being under the age of twenty-one, and being advised that by the said marriage he became well entitled to the said legacy of £1000 so conditionally devised to the respondent Mary as aforesaid; in Michaelmas term 1728, exhibited his bill in the Court of Chancery against the respondents Robert and Mary his wife, and against the executors, to be decreed, inter alia, to the said sum of £1000, and the interest and produce thereof.

To this bill the executors put in their answer, and thereby confessed they had sufficient assets of the testator to answer the legacies so devised as aforesaid; and that they had, in pursuance of the testator's will, and in discharge of their trust, laid out a sum of £11,796 5s. in the purchase of £5000 Bank, and £5000 South-Sea annuity stock, and submitted to pay the legacies as the court should direct. And