The second part of Reports of cases taken and adjudged in the court of Chancery, from the 20th year of King Charles II. to the first year of Their present Majesties, King William and Queen Mary Being special cases, and most of them decreed with the assistance of the judges, and all of them referring to the register books, wherein are setled several points of equity, law and practice. To which is added, the late great case between the Dutchess of Albemarle and the Earle of Bathe.

Whitmore contra Weld, 1 Jac. 2. fo. 106.

THat William Whitmore deceased in 1675. by his Will, devised to the Earl of Craven, for the use of William Whit∣more his Son, the Plaintiff Frances Whit∣mores late Husband, all the surplusage of his personal Estate, and made his Son William Whitmore Executor, and the said Earl of Craven his Executor, during the Minority of his said Son, and the said William the Father died, and left a perso∣nal Estate of 40000 l. that William the Son at his Fathers death, being but of the Age of 13 years, the said Earl proved his Fathers Will, and possessed all the perso∣nal Estate, and the said William the Son, having attained the Age of 18 years, not having proved the said Will, and being Intituled to the surplus of the said perfo∣nal Estate in 1684. made his Will, and thereby devised to the Plaintiff Frances, all his personal Estate, and whatsoever lay in his power to give, and made her

his Executrix, and died in 1684. and the Plaintiff Frances being of the Age of 18 years, proved his Will, and is thereby Intituled to the personal Estate of William the Father.

But the Defendants, one of them be∣ing Sister of William the Father, and the other the Children and Grandchildren of the Sisters of the said William Whitmore the Father, pretend the surplus of the per∣sonal Estate of William the Father, be∣longs to them.

The said William Whitmore the Fathers Will is in these words, (viz.) The Surplus of my Personal Estate, my Debts, Legacies and Funeral paid and satisfied, I give to the Right Honourable William Earl of Craven, for the use of my only Son William Whitmore, and his Heirs lawfully discen∣ded from his Body, and for the use of the Issue Male, and Issue Female, discended from the Bodies of my Sisters, Elizabeth Weld deceased, Margaret Kemesh, and Ann Robinson, in Case that my only Son William Whitmore should decease in his Minority, without having Issue lawfully dis∣cended from his Body: I Nominate and ap∣point my only Son William Whitmore, Ex∣ecutor of my last Will and Testament. I nominate and appoint the Earl of Craven during the Minority of my only Son Willi∣am

Whitmore, Executor of my last Will and Testament.

The Defendant Dame Ann Robinson in∣sists, she is the Surviving Sister of William Whitmore the elder, and so is Intituled to the Administration of William the Elder, unadministred by William the younger, and the Defendant Sir John Robinson, and others the younger Children of the said Dame Ann Robinson insist, That they are instituted (by William the Fathers Will) to an equal share of the surplus of the per∣sonal Estate of William the Elder, the ra∣ther, for that William the Elder, made a Settlement of his Real Estate on Trustees, and thereby made a provision for the Main∣tenance of William the younger, during his Minority, and therefore they opposed the Plaintiff Frances, getting Administra∣tion of William the Elder.

The said Plaintiff Frances Whitmore in∣sisted, That by the Will of William the Elder, there was no joynt devise made to the said William the Son, and the Is∣sue Male and Female of the Sisters of Wil∣liam the Father; but a several devise to William the Son, with Remainder to the Sisters Issue, and that the said William the Son having an Interest vested in him by the Will of his Father, and being 18 years Old when he died, and he having then a power to have proved his Fathers

Will, the Earls Executorship during his Minority being determined, might have spent or given away the said Estate in his life-time, he might surely give away the same by his Will, which he having done to the Plaintiff Frances, she is thereby well Intituled to the same, and that the remainder over to Issue Male and Female of the Sisters, the Estate being purely per∣sonal, is absolutely void.

This Court hearing several Presidents quoted, declared, That by the Will of the Father, there was an Interest vested in William the Son, and the remainder over to the Issue Male and Female of the Si∣sters of William the Elder, was void; and that William the Son living to 18 years, and making his Will as aforesaid, and the Plaintiff Frances his Executrix, she is thereby well intituled to the surplus of the said personal Estate, and decreed the same accordingly.

Notes

• Devisee In∣fant lived to 18 years, and makes his Will and Executors and dies, the Executor shall have the Legacy, for that an Interest was vested in the Infant.