Page:The English Reports v1 1900.pdf/398

James Davoren, a Papist, was in his life-time, and at his death, seised of a considerable real estate in possession, and of freehold estates, out upon leases since fallen in, and other real estates, to the amount in the whole of upwards of £500 a year; and was also possessed of a very large stock of black and other cattle, effects, bonds, notes and other personal property, to the amount in the whole of £15,000 and upwards.

James Davoren being so seised and possessed, and having no issue, made his will on the 12th of May 1725, and thereby, after giving to his wife Eleanor Davoren, £40 a year for her life, pursuant to his marriage articles with her, and in full of all her claims on his estate, real or personal, with power of distress on his lands, he gave and bequeathed unto his nephew, Willian Davoren, son of his brother John Davoren, £500 in discharge of the like sum he was to settle, on his brother John's marriage with his wife, on his eldest son by her, and for which he passed bonds, with warrants to confess judgment, to George Martin and Patrick-French [10] Truslove, trustees appointed by said articles. He also bequeathed unto his nephew, the respondent James Davoren, son of his brother Lawrence, the sum of £500 payable at twenty-one. And to his brother Lawrence Davoren £20, and recommended him to the further consideration of his executor. The testator also declared his will to be, that all his servants and graziers should be discharged from all debts and demands which should at the time of his death appear to be due to him; and appointed his brother John Davoren sole executor.

James Davoren, by a codicil to his will, (after directing that the legacy of £500 which he had bequeathed by his will to the respondent, should remain in his executor's hands until he attained twenty-one, and that his executor should pay such annual sums as therein mentioned for his maintenance and education in the mean time,) devised and directed, that his brother Lawrence Davoren should, on the first of May then next, have the farm of Gragans, at the rent payable to George Martin. He also gave his brother Lawrence, large quantities of sheep and other cattle; and directed, that the debt which Lawrence Davoren owed to George Martin, should be paid by his executor, and gave £500 to each of Lawrence Davoren's sons: and directed, that, in case John Davoren should die without issue male, he should pay or secure to Lawrence Davoren, and his issue, £3000.

James Davoren died soon after making this codicil, without having made any other disposition than as aforesaid, either of his real or personal estate, leaving his said two brothers, John Davoren and Lawrence, him surviving; and who as such, became each of them entitled to a moiety of all his real estates, in consequence of an Act of Parliament made in Ireland, in the second of Queen Anne, which enacts:

That all tenements and hereditaments whereof any papist then was or thereafter should be seised, in fee simple or fee tail, should be of the nature of gavel kind, if not sold, aliened, or disposed of by such papist in his life-time for good or valuable consideration, really and truly paid, and should descend, for want of issue of such papist, amongst the kindred of such papist of the part of the father, any way inheritable to such estate, in equal degrees; and for want of such kindred, to the kindred of such papist of the part of the mother, in like manner, notwithstanding any settlement or disposition by will or otherwise.

John Davoren proved his brother's will, and, as his sole executor, possessed himself of the testator's personal estate, to a very considerable amount; but concealed or kept back the codicil from his brother Lawrence, who had been in indigent circumstances, and entirely supported by the testator's bounty for some years before his death.