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of his said son John Papillon lawfully to be begotten; and in default of such issue, to the use of the children of his said late three sisters, Phebe Smythe, Mary Ball, and Ann Gledhill, and the heirs of their bodies lawfully begotten, as tenants in common, and not as joint tenants, each of his said late three sisters children to have an equal third part; and in default of such issue, to the use of his own right heirs for ever: and the testator also willed, that his said son John Papillon, in case he married, should have power to make a settlement upon any wife he should marry, for her own life only, for her jointure, of the [454] said manor thereby devised, or of the lands to be purchased in manner in the said will mentioned: and he also willed, that the remainder of his said moiety of his personal estate, until such purchase could be made, should continue in some of the public stocks, or bonds of the East India Company, in which he should leave the same at his decease; and that the dividends and interest thereof, until such freehold estates could be purchased and settled, should be paid in the same manner as the rents of the estate, when purchased and settled, were to be paid; and the testator appointed his nephew William Voyce sole executor.

The testator soon afterwards died, leaving John Papillon his only son and heir, then an infant, and no other issue.

The three sisters of the testator, Phebe Smythe, Mary Ball, and Ann Gledhill, left issue, who were all living at his decease, viz. Phebe Smythe left issue the appellant John Smythe, her only son, and two daughters, Phebe, then the wife of William Voyce, and Elizabeth Hippisley, widow; Mary Ball left two sons, Papillon Ball and Benjamin Ball, and one daughter named Elizabeth, then married to Benjamin Boddington; and Ann Gledhill left issue Mary, the wife of Thomas Robjent, Samuel Gledhill, Hannah Gledhill, Sarah Gledhill, and the respondent Ann Compton.

John Papillon, the testator's son, having attained his age of twenty-one, on the 29th of March 1727, preferred his bill in the Court of Chancery, against the said William Voyce, and Phebe his wife, Lee Steere, John Gledhill, the appellant John Smythe, Elizabeth Hippisley, Papillon Ball, Benjamin Ball, Benjamin Boddington and Elizabeth his wife, Thomas Robjent and Mary his wife, Samuel Gledhill, Hannah Gledhill, Sarah Gledhill, and the respondent Ann Compton, in order (among other things) to have the trusts of his father's will performed, and to have an estate purchased with the residue of the testator's moiety of his personal estate, and conveyed to the uses appointed by the will; and until such purchase, that he might have the interest or profits of the said residue paid to him for his use. To which bill the defendants appeared, and put in their answers; and the cause being at issue, came on to be heard on the 15th of July 1728, before Sir Joseph Jekyll, then Master of the Rolls (2 Peere Williams, 71), who after directing a general account of the testator's personal estate, and an account and payment to the plaintiff of his orphanage moiety thereof, and likewise an account and payment to him of the rents and profits of the real estate, received by the defendants since the death of the testator, and of the produce of the residue of the personal estate; decreed, that the said residue should be laid out in a purchase of lands according to the will, to be allowed of by the Master; and his Honour declared, that the plaintiff was entitled to an estate for life only in the lands so to be purchased, and did therefore order, that the same, when purchased, should be conveyed to the trustees named in the will, to the use of the plaintiff John Papillon for life, without impeachment of waste, with remainder to trustees to preserve contingent remainders, with liberty for the said plaintiff to make a settlement on his marriage, in manner therein mentioned; re-[455]-mainder to the first and every other son of the plaintiff in tail, with remainder to the daughters of the plaintiff in tail, as tenants in common, and not as joint tenants; remainder to the defendants, the children of the said testator's three sisters, Phebe Smythe, Mary Ball, and Ann Gledhill, and the heirs of their bodies, as tenants in common, and not as joint tenants; with remainder to the right heirs of the said testator for ever: and until the residuum of the moiety of the said testator's personal estate was laid out in such purchase of lands as aforesaid, the interest and produce thereof was to be paid in the same manner, as the rents of the estate to be purchased and settled were to be paid; and it was further ordered, that the defendant William Voyce should bring all the deeds and