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liberty, after such a length of time as had elapsed from the making of the said two decrees, to review the same; and therefore dismissed the petition.

The cause, after being revived in pursuance of the bill brought by the appellant Smythe, came on to be heard before the Lord Chancellor, on the 22d of June 1767, (being set down for that purpose at the requisition of the respondent Clay,) when his Lordship ordered, that the said cause and proceedings therein should stand revived, and that the said decrees should be carried into execution.

From this last decree, as well as the two former ones, the present appeal was brought; and on behalf of the appellants it was said, (W. de Grey, J. Dunning, A. Wedderburn, J. Madocks) that by the decrees of the 15th of July 1728, and the 5th of February 1731, it was ordered and directed, that the estate to be purchased should be conveyed to trustees in such manner, that on failure of issue of John Papillon the son, the same should go in remainder to the children of the testator's three sisters and the heirs of their bodies, as tenants in common, and not as joint tenants, whereby such of the then defendants as were children of those three sisters, would take the whole per capita, whereas the will expressly directed, that each of his said late three sisters children should have an equal third part thereof; by which it appeared to have been the testator's intention, that the children as to their proportions should take per stirpes, and that the estate should be divided, first into thirds, and then each third sub-divided among the children of each sister, in equal proportions as tenants in common in tail, and not the whole among all the children of all the sisters equally. That the decrees were further erroneous, because it was not directed, that cross remainders should be limited among the children of the three sisters, before the limitation of the reversion to the testator's own right heirs; it being his intention, that his heirs general should not take, but in case of failure of issue of his son, and of the children of his three sisters; and therefore in default of such issue, meaning the heirs of the body of his son, and the children of his sisters, the limitation over was by the will made to his heirs generally; and as the decrees now stood, the respondent Clay claimed the shares in the money to be laid out of such of the children of the testator's three sisters as had died, or should die without issue; and now claimed the shares of Phebe Voyce, Papillon Ball, Benjamin Ball, Samuel Gledhill, Hannah Tren, and Sarah Daniel, being no less than six shares out of eleven, of the money to be laid out in the purchase, in prejudice of their brothers and sisters and the heirs of their bodies. That by the first decree, John Papillon the son took no more than [459] an estate for life in the Bentley estate, and also in the estate to be purchased; but by the second decree, that part of the first relating to the Bentley estate was reversed, and the title deeds ordered to be delivered to him; not upon the ground, that the opinion of the court was erroneous in the construction of the will, but upon the new discovered marriage articles of the 14th of October 1697, introduced into the cause by the supplemental bill; and accordingly it was expressly mentioned in that second decree, that such reversal was decreed on the said supplemental bill: but as John Papillon set up the articles against the will, he ought to have been put to his election, whether he would abide by the will, or by the articles; and should not have been permitted to take under the articles, in contradiction to the will, and at the same time under the will, to the manifest prejudice of the children of the testator's three sisters and their issue, who, next to his son, appeared to be the particular objects of his bounty. The consequence of his being permitted to take under both was, that by the recovery suffered in his lifetime, and by his will, his own family were disinherited of the Bentley estate, contrary to the will, and yet he received the interest of the money to be laid out in lands under the will, and his devisee now claimed certain portions of the money itself, under the same will; whereas if he had made his election to abide by the will of his father, he would have taken no more than a life estate in Bentley, and in the lands to be purchased; and in that case, on his death without issue, the children of the testator's three sisters, and their issue, would have been entitled to an estate tail in both and on the other hand, if John had made his election to abide under the articles, he could not by the rules of equity have been permitted to take under the will also, without making a recompence to the children of the three sisters and their issue, for the value of what they were deprived of by means of these articles.