Woodhall contra Benson, & al' 36 Car. 2. fo. 314.

THat John Wirley deceased,* being pos∣sessed of divers Mannors and Lands for 320 years, that the said Term came to the Defendants Adams and Shagburgh, in Trust for payment of Monies, and after in Trust for Edward Colley, Grand∣son of John Wirley for his life, and after his decease to the Plaintiff Ann, late Wife of the said Edward Colley, and the said Plaintiff Ann to have 130 l. per Annum for her life, which Settlement was made in consideration of Marriage, and after the death of Edward Colley, the Trustees were directed to permit the Heirs Males of Edward on the Plaintiff Ann to be be∣gotten, to receive the residue of the pro∣fits, and in case of no Issue Male of her, there is provision for Daughters, and Li∣mitations over to the said Edward Colley's Heirs Males; and it was also declared, that in case the Plaintiff Ann should Sur∣vive Page  291the said Edward, then she to have the moiety of the Mannor house for her life; that the Trust limited to the Heirs Males of Edward, and the Remainders thereupon depending are void, and the be∣nefit of the whole Trust was in Edward, for that the Trust would not be Intailed.

That by another Deed it was declared by the said Edward Colley and his said Trustees, that in case the Plaintiff Ann should have no Issue, she should have the whole Mannor house above the 130 l. per Annum, and by another Deed, the said Edward Colley by consent of his said Tru∣stees declared, in case the said Edward should die leaving the Plaintiff Ann no Issue, and should not otherwise dispose of the residue of the profits of the premisses over and above the Rents and Charges payable as aforesaid, then his said Trustees after his death, should by Sale or Leases of the premisses pay all debts, and after all debts paid, to permit the Plaintiff to re∣ceive the residue of the profits for her life, and after her death to permit the right Heirs of Edward to receive the same: That the Trust for the right Heirs of Edward was void and reverted, and the said Ed∣ward did afterwards declare, that in case he had no Issue, he intended to leave his whole Estate to the Plaintiff Ann.

That the said Edward, 22 Jan. 26 Car. 2. made his Will in writing, reciting the Agreement in the last Deed touching pay∣ment of his debts, and after some small Legacies devised to his said Trustees all the rest of his personal Estate in Trust, that they should pay his debts as aforesaid, and declared his meaning to be, that his Executors after his debts paid should de∣liver the overplus to the Plaintiff Ann, deducting 5 l. a-piece for their pains and all charges; That Edward soon after dy∣ing the overplus belonged to the Plaintiff, and the said Trustees possessed the pre∣misses and the personal Estate, and the Plaintiff Ann having since intermarryed the Plaintiff Woodhal, whereby the whole belongs and remains unto him in right of his Wife, and the said Trustees ought to Assign to the said Plaintiff: But the said Trustees pretend the Trust and Term a∣foresaid, doth after the Plaintiff Anns death belong unto the Defendant Gabriel Ciber and Jane his Wife, she being the only Sister and Heir at Law of the said Edward Colley; That the Defendant Ben∣son knowing of the Will and Settlement aforesaid, purchased the premisses of the Defendant Ciber and his Wife, and the Trustees Assigned to him.

The Defendants, the Trustees insisted, That their names were used in the Mar∣riage Settlement of Edward Colley, upon his Marriage with the Plaintiff Ann, in which Settlement was recited a Convey∣ance made by John Wirley, whereby he did demise the Trusts therein mentioned, and the premisses in Trusts as to Clark's Farm, for such persons as he or his Exe∣cutors should by Will or otherwise direct, and several other persons upon several other Trusts, and as to several parcels of the said premisses which the said Defen∣dant conceived, was the Estate lately en∣joyed by Edward Colley in Trust for such persons as the said John Wirley should di∣rect, and for want of such appointment to Jane his Daughter for her life, and af∣ter to John Colley her Son and Heir and his Issue Male, and for want of such Issue in Trust for the Daughters of the said Jane, and after the death. of Jane and John, Edward was intituled, and he together with Sir John Wirley the Surviving Trustees upon Edwards marrying with the Plaintiff, did Demise to the said Defen∣dants the Trustees, the Mannor-house, &c. for the Term of 20 years in Trust to pay certain Annuities therein mentioned, and to permit Edward Colly for his life to receive the profits of the residue, and in case the Marriage took effect, and the Page  294Plaintiff Ann Survived him, then to pay her 130 l. per Annum for her life, and af∣ter Edwards death, to permit the Heirs males of their two Bodies to receive the residue of the profits, and for default of such Issue male there is provision for Daughters, and supposes the residue of the profits may be limited to any Issue male of Edwards, and for want of such Issue, to permit the Defendant Jane and Ann since deceased Sister, of the said Ed∣ward, to receive the profits of the Estate as the Deed expresses, and that he remem∣bred no other Agreement than what is mentioned in the said Deed, and sets forth the Deed of 21 Jan. 26 Car. 2. whereby the said Defendants, the Trustees were in∣tituled by Sale or Leases to pay debts, and after payment thereof (if the Plain∣tiff Ann should be then living) should permit her to receive the residue of the profits for her life, and afterher decease the right Heirs of Edward to receive the same; that after the time of executing the last mentioned Deed, the said Edward made his Will, and after some Legacies took notice of the said Deed bearing date the day before, and it was declared there∣by, that the Defendants, the Trustees should out of the profits pay all his debts, and being fearful those profits should not do, did Devise to them all the rest of his Page  295personal Estate, and made them Executors, and after debts paid the residue to the Plaintiff Ann. That Nov. 1676, Edward Colley died, after which the said Defen∣dant proved the Will, and entred on the Estate; But the Defendants Ciber and Jane his Wife insisted, That the said De∣fendant Jane being the only Sister and Heir to Edward Colley, are after his debts intituled to the premisses for a long Term, to commence after the death of the Plain∣tiff Ann, and have sold their interest to the Defendant Benson.

Upon reading the said Deed and Will,* the Lord Keeper North was of opinion, that the said Term so as aforesaid Created, was a Term in gross, and so not capable of being intailed, and therefore it could not descend to the Heir of Edward Colley, but that the same should be liable to the payment of his Debts, and that the Plain∣tiff Ann should hold the 130 l. per An. for her life, and after the said Debts paid, the Plaintiff Ann should receive the profits of the whole Estate for her life, charged with the said Annuity, and the said Plaintiffs were to redeem the Mortgage to the De∣fendant Woodward: But as to the Residue of the said Term, after the death of the Plaintiff Ann, and debts paid, how the same should be disposed, a Case was or∣dered to be made.

A Case being Stated, this Cause came to be heard thereon before the Lord Chan∣cellor Jefferies, and all the former plead∣ings being opened, as also the De∣fendant Cibers cross Bill, which was to this effect (viz.) to have the said Term of 820. years to attend the Inheritance, and the Case stated, appearing to be no other∣wise than before is set forth.

His Lordship on reading the said Deed and Will,* the Question being, who shall have the remainder of the Term in the said Lease, whether the Plaintiff Ann as Residuary Legatee, or whether she shall have only an Estate for life, his Lordship declared, that the Deed and Will do make but one Will, and by them there was no more intended to the Plaintiff Ann, than an Estate for her life, and that she ought to enjoy the whole Mansion House cum pertin' during her life, and also the over∣plus of the profits of the Residue of the said Estate after Debts and Legacies paid, and the Defendant Benson who purchased the Inheritance of Ciber, to enjoy the same, discharging all things as aforesaid.