Page:The English Reports v1 1900.pdf/569

division of the said estate; and instead of the specific division thereof, the Master was to allow to the widow and her children, the value or amount of two-thirds thereof, out of the residue of the testator's testamentary part of his personal estate;) and when the personal estate should be so divided as aforesaid, it was decreed, that one third part thereof should be paid, transferred or delivered by the executors and receivers to Leonora, the testator's widow; and that one other third should be divided into five parts, equally between the testator's five children, and be accordingly paid, transferred, or delivered to them respectively; and that the other third should go and be disposed of, as near as it could, according to the testator's will: and it was referred to the Master to settle the proportions thereof between the defendants, the testator's three grandsons. But as to the money legacies given to the testator's five children, John, Thomas, Mary, Leonora, and Jane, his lordship declared, that they could not have the benefit of the agreement, and likewise of the will; and they then electing to have the benefit of the agreement, and not to take the money legacies by the will, it was therefore ordered, that the said money legacies to them devised, and also the money legacy devised to Sir Thomas Frederick by the will, should sink into the testamentary part of the testator's estate.

Pursuant to this decree, the Master made his report on the 20th of December 1722, and thereby certified that he had taken an account of the testator's personal estate, and divided the same into thirds. This report was made with the unanimous consent of all parties interested, who were then of age, and signed by them; and was absolutely confirmed by consent as to them, and against the infants and executors, according to the course of the court: and accordingly, the shares of the personal estate belonging to the widow and her five children, were paid and assigned to them by the executors and trustees, and what was belonging to the appellant and his two brothers, was reserved for them until they came of age.

On the 2d of August 1723, the Master made another report, certifying, that the widow and her five children, had acknowledged before him, that they had received their several shares; and this report was signed in like manner as the former.

[259] All parties interested, who were of age, being in the full possession and quiet enjoyment of what was thus assigned to them; a treaty of marriage was, in January 1725, had between the respondents Rumney Diggle and Leonora his wife, one of the testator's daughters: and previous to the marriage an agreement was made, to which Sir Thomas was a party, whereby all the portion of the respondent Leonora, which consisted of the particulars of her share of her father's personal estate, allotted to her by the decree and report, was assigned to trustees for the benefit of them and their issue.

A settlement was also made by James Lannoy, Esq. of his estate of about £600 per ann. upon the respondent the Duchess and her issue, in consideration of the increase of her fortune; and six several long annuities of £50 per ann. each, part of her share of the testator's personal estate, allotted to her by the report, were assigned to Sir Thomas Frederick and another trustee, in trust for the Duchess for life; remainder to Leonora her daughter for life; remainder to Mr. Lannoy.

Soon afterwards Mr. Lannoy died, having made his will, and thereof appointed the Duchess residuary devisee and sole executrix: and pursuant to a decree of the court of Chancery founded upon this will, in consideration of £1450 paid to the Duchess, the reversion of the said six annuities was asigned by Sir Thomas Frederick, to James Colebrook and James Ruck.

By several deeds-poll, Leonora the testator's widow assigned £1666 13s. 4d. per ann. in long annuities, part of her share of the testator's personal estate, to the respondent Sir John, for his own use.

Sir John, previous to his marriage with Mrs. Kinnersley, in consideration of her portion, assigned £1000 per ann. of these long annuities to trustees, upon trust to sell and invest the same in a purchase of lands, to be settled upon his lady, and the issue of that marriage.

Previous to the marriage of the respondent Thomas Powell with the respondent Mary his wife, his real estate, in consideration of her portion, which consisted of the particulars of her share of her father's personal estate, allotted to her by the report, was conveyed to Mr. Justice Price and Sir Thomas Frederick, upon trust, for securing £700 per ann. rent charge for her jointure; and then the said real estate,