Page:The English Reports v1 1900.pdf/226

mitted by all the defendants: And 8th July, 1700, the causes were heard by the Lord Keeper, and a question arose upon the will of Thomas, wherein, after the real and personal estate were charged with his debts, was a clause in these words:

And upon the hearing the court dismissed appellant's bill, which dismission appellant insisted ought to be reversed; because in the construction of wills the intention of the testator is principally to be regarded, and it manifestly appeared testator intended two things, that his debts should be paid, and that after payment of his debts the heir male of his family should have what remained of his real estate; and that this was his intention appeared by the marriage settlement, by the will, and by his repeated verbal declarations; for by the settlement the estate was limited to the issue male, and an ample provision made for the daughter, and by the express words of the will the estate was devised to Doctor Williams, charged with the debts, if the estate limited by the settlement (which was on the issue male) happen to determine or be spent; and it was proved in the cause that after making the settlement, and before and after making the will, testator frequently declared that if he died without issue mule, his kinsman Doctor Williams should have his estate. And appellant showed that if the dismission should be reversed, the creditors would soon be paid, the purchase money being ready, who otherwise could not receive satisfaction in many years. (W. Whitlocke, H. Harcourt.)

The respondents in affirmance of the dismission shewed, That Thomas Williams's estate was 850l. per annum, (and worth 17,000l. to be sold) and was charged with several debts of his late brother Richard, and the 250l. rent charge to his widow; and that he made the settlement stated by appellant, and frequently before and after his daughter was born, declared that if he should die without issue of his own body, his estate should never go to any of the Rumseys, who were his heirs at law, but he would in such case give it to his kinsman David Williams, doctor in physic, who had married his sister; and afterwards, before his daughter was born, made his will as stated by appellant; and that after respondent was born, (as fully proved in the cause) be on several occasions declared she should have his estate, and that it was pride in any one to give his estate from his daughter [120] to preserve a name; and that if he had 10,000l. a year she should have it all. And that immediately upon his death Doctor Williams (who was his physician, and present with him when he died) possessed himself of the will and the personal estate, and gave out that the said Thomas had given him all his estate, paying his debts and legacies; and that they, with other charges, were so great that he should be obliged to sell the estate. And that Elizabeth, the widow, having never seen the will, but believing it to be so as the Doctor had declared, entered into an agreement with him for the purchase of the estate; but her father commanding her to desist, that agreement was waved on both sides. And then the Doctor and Henry Williams contracted with appellant, who paid 300l. to Doctor Williams in part of the purchase money, and paid off a mortgage, or other incumbrance, for 1000l. and interest. And respondent's mother having proved the will, was advised her daughter had there under an estate tail, and that the Doctor had no present estate given him by the will, only a power to sell so much as the personal estate should fall short of the debts and legacies, and that the mother acquainted appellant therewith before he had perfected his agreement for the purchase, or paid any money, and cautioned him against proceeding in the said purchase; but appellant on Mrs. Page's death, whereby 250l. rent charge had fallen in, filed his bill for a specific performance of the articles of purchase, and the creditors exhibited their bill to have their debts paid; which