Page:The English Reports v1 1900.pdf/270

brother of James, of Neilsbrook, taking the guardianship of the daughters, in Michaelmas term, 1683, filed a bill against appellants, suggesting that Sir Hans and appellant James, had made purchases in trust for all the other uncles sons, as well as for themselves; and prayed that the said purchases might be decreed to be a trust, as to one fifth for the three daughters; but took no notice of the award, which defendants in their answers insisted on: And that the cause was heard in Trinity term, 1686, before Lord Chancellor Porter, who declared that the whole matter was not brought fairly before the court, and that he would dismiss the bill; but on the importunity of respondents council, gave leave to file a supplemental bill, which was accordingly filed in Michaelmas, 1686; and stated the award, but alleged it was obtained corruptly: And that appellants severally answered and denied the trust, and insisted the award was fair, and said they were ready and willing to perform it: And shewed further, that Countess Ann died in January, 1688; and that Rose and Rachael, two of the daughters, died without issue: And that respondent, [212] Hans Stephenson, married Ann, the third daughter, and revived the cause, and witnesses were examined on both sides: And that pending the cause, appellants specifically performed the award by a partition of the estate made, to which respondents were parties, and agreed and accepted of one fifth part of the jointure lands and leasehold lands for lives, according to the said partition, and their lot drawn, and still held and enjoyed the same: And that appellant, Hans Hamilton, being then under age, gave security to perform the same, and accordingly did perform when he came of age: And that notwithstanding all this, respondents afterwards brought the cause to hearing: and John Methuen, Esq. Lord Chancellor of Ireland, 10th February, 1698, decreed the will of Earl James to be a good will, and that respondents should have and recover one full fifth part of all the purchases made by Sir Hans and appellant, James Hamilton: And as to the award, his Lordship declared, he did not think himself so fully apprised of the matter as to confirm it, or to declare it corrupt or a bar to plaintiff's right, but left the parties to take their remedies thereon: And appellants shewed further, that pursuant to the Lord Chancellor's directions, appellants, in Trinity term, 1699, brought a bill against respondents, stating the award; and that appellants had specifically performed it on their parts, and that respondents had accepted one fifth part of all the lands, so conveyed to them by appellants, upon an equal partition, and prayed a specific performance of the award from respondents on their parts: And that to this respondents, 7th December, 1700, pleaded the proceedings and decree in the former causes; And that the said Lord Chancellor Methuen, 24th July, 1701, allowed the plea; but afterwards, on a re-hearing, his Lordship over-ruled the plea, and ordered it to stand for an answer; and that tho' the suit was still depending, and many delays used by respondents therein, the Lord Chancellor, in December, 1701, ordered appellants forthwith to convey a fifth part of the said purchases to the respondents, and since ordered the rents to be sequestered; which decree and order appellants insisted ought to be reversed as erroneous, because none of the purchasers were made, or intended to be made in trust for James, of Neilsbrook; neither was there any proof in the cause of any such trust; and because the award was good and binding on James, of Neilsbrook, and he had acquiesced in it during his life, and [213] appellants had specifically performed the same after his death to respondents, who had ever since enjoyed benefit there-under; And because no order for sequestring the rents and profits ought to have been made pending the cause: And because, supposing the will of Earl James good, yet appellants contended, that no greater estate passed thereby to the five uncles sons, than for their lives only, and consequently the respondent, Ann, could have been intitled to nothing thereby. (Henry Poley. J. Sloane.)

The respondents, in affirmance of the decree stated, that Earl James's will was in the words following: "If it do happen that my sons should decease without issue, or heirs of their bodies, before my debts paid, I do then appoint my debts to be first paid;" and then gives 20l. a year to the school of Bangor, and other yearly sums to other schools; "and the remainder of my estate to be divided in five equal parts amongst the eldest sons, or issue male of my five uncles, as the lands can be laid out in most equal and just divisions:" And that he died soon after: And that his Countess Ann, his executrix, proved the will; and that her