case PHIILIP herbert et Ux  Appellants the earl OF Winchelsea and  others Respondents that April Mews dig twelve a be tenant for life under a  settlement with remainder to his wife for her jointure remainder to the issue  male of the marriage remainder over with a power to revoke all the use except  those tohis wife and her issue agree that in consideration of her surrender  her jointure estate so as to enable he to suffer a recovery and raise pound to  pay his debt he will resettle his whole estate to particular use the surrender  be make and the money raise but no resettlement make accord to the agreement  hold that this agreement have be in part perform the party be entitle to a  specific execution and decree accord Heneage earl of Winchelsea the respondent  the earl grandfather be seize in fee of several manor park land tenement and  hereditament in the county of ken Essex York and Middlesex by indenture of  lease and release date the that and that of June convey the same to several  trustee and their heir to the use of himself for life remainder to his first  and other son in tail male remainder to John finch his brother for life  remainder to his first and other son in tail male remainder to Heneage finch  son and heir of sir Heneage finch decease and the heir male of his body  remainder to Francis finch second son of the say sir Heneage and the heir male  of his body remainder to John finch three son of the say sir Heneage and the  heir male of his body with other remainder over and by this settlement a power  be reserve to earl Heneage after the death of lady mary his then wife to make  a jointure on any woman he shall marry for her life but if he shall have issue  male live by lady mary then the jointure of such after take wife shall not  exceed pound per and earl Heneage have issue by lady mary five son namely  William Lord Maidstone Heneage finch the present respondent Thomas finch  Leopold William finch and lesley finch and after her death he marry Elizabeth  the only daughter of John Eyre esquire by who he have issue one son name John  and after this marriage brown the earl by deed enrol date the that of April  James settle certain part of his Sussex estate on lady Elizabeth for life for  her jointure William Lord Maidstone die in though lifetime of his father leave  issue Charles and the appellant mrs Herbert and upon the death of earl Heneage  the honour and estate descend to this Charles by indenture of lease and  release date the that and saint of march earl Charles in consideration of his  marriage with Sarah the daughter of Henry nurse esquire convey all his estate  except what be in jointure to countess Elizabeth to trustee to the use of  himself for life remainder to the trustee to preserve contingent remainder  remainder as to part to countess Sarah for life for her brown er p jointure  remainder as to the whole to his first and other son by her in tail male  remainder to trustee for a term of year to raise portion for daughter  remainder to the heir male of his body remainder to his uncle Heneage the  present earl for life remainder to trustee to preserve contingent remainder  remainder to the first and other son of the say Heneage in tail male with  remainder to his other uncle and their issue male remainder in feel to his own  right heir but by this settlement earl Charles reserve to himself a power of  revoke all the use thereby limit except those to countess Sarah and her issue  and to limit such other use as he shall think proper in the year earl Charles  become great indebt and though he have then no issue male yet as there be a  probability of it he can not make any part of the settle estate a security for  the payment of his debt and therefore he apply by the Lord Weymouth to  countess Elizabeth request her to join with he in charge her jointureestate  after her death with pound and to induce heir to comply with this request he  offer to settle all his other estate in such manner as that after his death  without male issue they shall come to her son John finch in tail male accord  it be agree that the countess shall make a conditional surrender of her  jointure to enable the earl to suffer a recovery and bar all estate tail in  that part of the estate and that he shall convey it to trustee for the purpose  of raise the pound and then settle the same and all his other estate so as  upon failure of his issue male they may after his death come to the respondent  earl Heneage for life subject to the jointure of countess Elizabeth and the  pound mortgage and to his first and other son in tail male remainder to the  say John finch for life and his first and other son in tail male remainder to  the several other use in the settlement of and that proper conveyance shall be  prepare by one Mr Johnson for these several purpose pursuant to this agreement  the countess Elizabeth execute a surrender of her jointureestate and thereupon  earl Charles suffer a recovery and afterward join with the countess in a  conveyance thereof to trustee and their heir to the use of the countess for  life and with power to the trustee to mortgage the same for brown pound and in  order to fix the limitation of all the estate in the male line of the family  accord to the agreement the earl deliver to Mr Johnson the settlement of that  he may prepare proper conveyance for that purpose but he be of opinion that a  release of earl Charles power of revocation under that settlement will be  sufficient he prepare such release only and the earl execute it about eight  year after the agreement it be discover that earl Charles in failure of issue  male by his wife countess Sarah have a remainder limit to the heir male of his  body which the release of his power of revocation do not destroy and therefore  in the earl suffer a recovery of all the estate comprise in the settlement of  whereby he become seize in fee thereof but never resettle the same pursuant to  the above agreement so that upon his death without issue which happen in  August the estate descend to the appellant mrs Herbert as his heir at law  subject to several mortgage and other encumbrance which then affect the same  but in Michaelmas term follow Mr finch and the several other person who will  have be interest in this estate in case the same have be settle accord to the  agreement exhibit their bill in chancery against the appellant and other  necessary party pray that this agreement may be full and effectual perform and  carry into execution the evidence adduce in support of the agreement be  certain letter which have be write by earl Charles the Lord Weymouth and dr  Leopold finch to earl Heneage the respondent and the several conveyance which  have be execute by earl Charles and the countess Elizabeth on the that of July  the cause be hear before the Lord chancellor Harcourt when his lordship  declare that the agreement between earl Charles and the countess dowager  Elizabeth be prove by write evidence as well as by the deposition take in the  cause that there have be a complete execution of it on the part of the  countess by make a conditional surrender of her jointure and join with earl  Charles in a conveyance enable he to take up the pound brown er p that there  have be also a execution of this agreement though a defective one on the part  of earl Charles by release his power of revocation which have not its intend  effect a estate tail precedent to the use revoke remain in he which ought to  have be bar pursuant to the agreement that earl Charles have suffer the  recovery and make the charge of pound have receive the benefit of the  agreement and that the plaintiff ought to be consider as purchaser under a  agreement and be entitle as such to have the defective execution thereof  perfect accord it be decree that the defendant Mr and mrs Herbert and all  claim under they shall make a settlement of the estate pursuant to the  agreement but without prejudice to earl Charles creditor who be to come in  before the master and prove their debt brown from this decree the defendant Mr  and mrs Herbert appeal insist e Northey n Lechmere that the letter on which it  be ground be not sufficient evidence of the agreement to warrant the court in  make such a decree that after the write of these letter frequent meeting and  consultation be have between the party and several deed c agree upon and  execute by they and therefore no retrospect ought to he have to the letter or  any parole discourse which happen prior to the execution of such deed that if  such dormant letter shall be allow and the decree affirm after a acquiescence  of eleven year without take any notice of this pretend agreement or ever  request earl Charles to make any settlement in pursuance thereof it may be  make a precedent to shake most of the estate and settlement in England that  the intention of earl Charles in suffer the recovery of be true honourable be  to secure the payment of his just debt and make a provision for the appellant  mrs Herbert his only sister and heir at law and her child and therefore it be  pray that the decree may be reverse on the other side it be contend I Jekyll S  mead that the evidence give of the agreement be the most direct and ample that  can be require beside the actual execution of it by one of the party and the  partial and incomplete execution by the other but with respect to the whole  matter in question the appellant have give judgement against themselves for if  the recovery under which they claim be good without any consideration to he  have of the agreement then the present earl have no colour or pretence of  right to the estate and yet the appellant have think fit to buy he out who  have no right to any thing but by virtue of the agreement and therefore it be  hope that in so just and plain a case where the ancient estate of the family  be preserve in the male line in order to support the honour and without which  the honour can not be support the appeal will be dismiss with cost accord  after hear counsel on this appeal it be order and adjudge that the same shall  be dismiss and the decree therein complain of affirm jour vol p