case patrick Delane and other appellant thomas tenison and other respondent  that march Mews dig way where a deed be wilful destroy every thing be to be  presume against the party in odium spoliator and therefore the parole evidence  of the person who prepare the draft though at the distance of several year be  admissible to prove the general content of it William Barton Esq uncle to the  respondent Thomas and William and to Elizabeth head be seize in fee of a large  real estate in Ireland and possess of a very considerable personal estate  consist of mortgage and other security and valuable lease for year and have a  only child Margaret then wife of Richard tenison Esq by his will date the d of  September devise his real estate to trustee to the use of the say Richard and  Margaret tenison during their life and to the survivor remainder to their only  son William tenison for life and to his first and other son in tail male  remainder to the second and other son of Richard and Margaret in tail male  remainder to their daughter Elizabeth tenison for life and to her first and  other son in tail male remainder to the second and other daughter of Richard  and Margaret in tail male and for want of such issue upon trust to be dispose  of to such use and estate and subject to such charge and appointment as  Richard and Margaret joint brown er p during their life or the survivor by  deed in write execute in the presence of three or more witness shall appoint  and for want of such appointment remainder to the daughter of William tenison  remainder to the daughter of Elizabeth tenison remainder to the issue of  Richard and Margaret and of the survivor remainder to his own right heir and  the say testator direct that all his personal fortune shall be divide into two  equal moieties one moiety whereof he bequeathe to the say Richard tenison if  live at his death but in case of his death he devise that moiety to the brown  say William and Elizabeth and such other child or child as Richard shall have  at his death equal and if no such child then to Margaret her executor and  administrator and the other moiety he bequeathe unto John Rogerson and Charles  Campbell esqr in trust to be dispose of as Margaret if live at his death by  any write under her hand and seal testify by two or more witness shall appoint  and for want of such appointment or if Margaret shall die before he then he  bequeathe that moiety to William and Elizabeth and to such other child or  child of Richard and Margaret as shall be live at her death share and share  alike and if no child then to Richard his executor and administrator and  appoint Richard and Margaret executor in February the testator die whereupon  Richard and Margaret prove the will and take possession of the real and  personal estate have at that time issue William and Elizabeth only but they  afterward have another child name Margaret bear the that of August on the  saint of may a trust deed be execute between Richard and Margaret of the one  part and Charles Campbell of the other recite Barton will that they be thereby  entitle to his real and the residue of his personal estate that Barton at his  death have a considerable sum of ready money by he beside what he have at  interest and in banker hand that part thereof have be since dispose of by  their joint consent for necessary and for several sum pay for Barton debt and  some debt forgive to friend and some present make by he it be therefore agree  that the ready money leave or lie out or forgive shall not be call in question  and recite that it be not then think proper to make any division of the  personal estate Richard tenison grant and assign his moiety thereof to  Campbell in trust for himself his executor and administrator and Margaret  moiety be vest in Campbell subject to such disposition as she shall make of  the same and in default thereof to such trust and use as in Barton will to  this deed there be a schedule annex of the particular of the personal estate  so assign among which be a mortgage make by Richard tenison of his own estate  in the county of Leitrim and Roscommon to Mr Barton in the year for pound  beside which Campbell receive to the amount of pound and upward in July Mr  Campbell together with Richard and Margaret tenison assign the pound mortgage  to John Pocklington Esq in consideration of pound pay by he to Campbell in  trust for Richard and Margaret Richard tenison by his will date the that of  October give a legacy of pound to each of his daughter Elizabeth and Margaret  and after some other legacy to the amount of about pound he leave the residue  of his fortune to his wife Margaret appoint her sole executrix during her life  and brown the respondent Thomas tenison William the testator son and the  reverend Peter Jackson or the survivor of they his executor after his wife  death and guardian to his young child he soon after die Margaret prove the  will and possess herself of his fortune and soon afterward Campbell the  trustee die in Michaelmas term Margaret file a bill in the court of chancery  against Campbell representative set forth the deed of the saint of may and the  sum receive by Campbell and that a treaty for the purchase of a estate call  Ballynescaulan wherein the money be intend to be invest have not take effect  and therefore pray a account and repayment of the several sum receive by  Campbell and that the outstanding security and leasehold interest may be  reassigned to her on the that of November she obtain a decree in this suit  against the representative of Campbell for pound S d be the balance then due  on account of the sum receive by he and it be order that they shall reassign  to her the outstanding security and leasehold interest mention in the schedule  to brown er p the trust deed and accord on the that of march Campbell  representative reassigned the same to her and pay her the balance then due of  pound S d part whereof Margaret soon after lend to John foster Esq William  tenison the son in December marry mary Townley her fortune of pound be by the  marriage settlement agree to be pay to Margaret the mother who thereby oblige  herself to pay off the pound due on Pocklingtons mortgage and keep the same on  foot as a provision for William and mary young child but on failure of issue  of William Margaret be to be at liberty to dispose of this pound by deed or  will as she shall think fit on the d of may William die without issue whereby  the pound revert to Margaret Elizabeth the old daughter in December marry  Robert Rochfort Esq afterward earl of Belvidere Margaret by the settlement on  this marriage reserve to herself a power of dispose of the pound as she shall  think fit and Elizabeth die soon after without issue in July Margaret the  young the only survive child be a infant of about the age of nine year and her  mother Margaret the elder be seize of a real estate of about pound a year for  her life subject only to a jointure of pound a year to mary the widow of her  son William and some small annuity and be possess of a personal estate to the  amount of about pound beside a power of dispose of her father Mr Barton real  estate in case her daughter Margaret shall die without issue and she herself  shall have no other child the appellant be then about fifty year old have  church preferment of pound a year and brown be indebt about pound in these  circumstance he make his address to and marry Margaret the mother and  immediate afterward possess himself of her real and personal estate and  particular draw out of the hand of Burton and Falkiner her banker in Dublin  above pound and on the that of February without Margaret concurrence he sell a  term for year in the land of Thomastown in the county of Lowth part of William  Barton personal estate for pound in or he receive mary townley portion of  pound and pound principal money with the interest thereon due by John foster  beside some other debt due to his wife and by lease and release date the d and  d of April a mortgage of land in the county of Monaghan make by one mary  Choppin to Mr Barton be also part of his personal estate whereon pound be due  at the marriage be by the appellant and his wife in consideration of pound S d  assign to Peter Jackson Margaret have during her widowhood pay pound part of  the principal and interest on the pound mortgage to Mr Pocklington the sum of  pound S be the remainder thereof be pay to Isaac Manley representative of  Frances Evans who have the right thereto as her share of the mortgage money  and the mortgage be assign to Peter Jackson in trust for the appellant and his  wife who by lease and release date the that and that of July assign the same  to Richard helsham Esq in trust for the appellant his heir executor  administrator and assign and by other indenture of lease and release date the  that and that of January part of the land of Arthurstown and other land be in  consideration of pound S d whereof pound S d due on a mortgage and other  security of the say land make to Mr Barton be part convey by the appellant and  his wife to Mr helsham in trust for the appellant and the mortgage and other  security be assign to Mr Jackson to protect the purchase beside the above  particular Margaret personal fortune at the time of the marriage consist of  plate a leasehold interest in king street and Stephens green in Dublin for a  long term of year a lease for year of Kilnurrays and Aghafadd under the see of  clogher both which lease be part of the say William Barton fortune and she be  also entitle by the will of her former husband to a lease for year of  Clanmacnoise under the see of meath which lease under the see of meath and  clogher the appellant give up and take new lease in his own name on the that  of December mrs Delane die intestate leave no child but her daughter Margaret  whereupon the appellant administer to her and also obtain administration de  good non to William Barton with his will annex immediate after his wife death  the appellant produce a letter without date in the handwriting of Peter  Jackson who brown die in September sign by his brown er p wife and direct to  the say Jackson and the respondent Thomas who be guardian to Margaret the  daughter by her father will express a earnest desire that in case she shall  die before her daughter be marry the respondent Thomas and Mr Jackson may  commit her entire to the appellant care that a coach and proper number of  servant shall be keep for her at her sole expense that mrs Berkley and mrs  Donagh shall live with her and be allow pound a year each and that she shall  live up to the whole income of her estate and the appellant who by a deed he  obtain from his wife in June be to have Mr Barton real estate for his life if  Margaret the daughter die without issue prevail upon the respondent Thomas the  survive testamentary guardian to put miss Tenisons person and fortune under  his care and to execute a letter of attorney empower he to receive her rend on  the that of may miss tenison make her will and thereby give the respondent  Thomas pound and leave other pecuniary legacy amount in all to pound and  appoint the respondent Thomas and one Mr John wood her executor but make no  disposition of the residue of her fortune she die unmarried on the that of  January follow be then about year old and such undisposed residue become  distributable between the respondent Thomas and William tenison her uncle and  Elizabeth head her aunt as her next of kin John wood renounce the respondent  Thomas alone prove this will and also obtain a probate of the will of Richard  tenison by miss Tenisons death without issue the respondent Thomas become  seize under Richard Tenisons will of the Leitrim and Roscommon estate subject  to the before mention mortgage of pound which the appellant claim title to and  the appellant have give in a unreasonable account of his receipt and  disbursement for miss tenison the respondent Thomas on the that of June file a  bill in the court of chancery in Ireland against the appellant and other for a  account of the personal fortune to which miss tenison be entitle under the  will of her grandfather William Barton and it not be then know that any  settlement have be make between the appellant and his wife previous to their  marriage the bill charge that they have marry without settlement the appellant  by his answer to this bill deny that the marriage be without a settlement and  say there be a settlement by deed or article date about the that of July  perfect between he and his wife in the presence of two witness wonder hereby a  power be reserve and give to her to dispose of her whole fortune of what  nature or kind so ever by deed or will to such person or person as she shall  think proper and that for want of such disposition or appointment the same be  to go to and be actual vest in the appellant and he insist brown that the  pound mortgage be by the deed of the that and that of July assign to Mr  helsham for the sole and proper use of the appellant and that miss tenison be  not entitle to the legacy of pound bequeathe to her by her father because her  father personal estate after payment of his debt and funeral expense be not  sufficient to answer the same or any part thereof the respondent Thomas give  credit to the appellant answer and not have the least notice or intimation of  the marriage settlement have be destroy by the appellant come to a agreement  with he which be reduce into write and date the d of June whereby the  respondent Thomas release to the appellant all claim and demand which he have  or may have have to the personal fortune of William Barton Richard tenison and  Margaret tenison the young and the appellant and respondent Thomas agree that  pound part of the interest of the pound mortgage which the appellant claim to  be due to he since his wife death shall be put into the hand of the bishop of  Elphin for the benefit of the respondent Thomas wife and child and the  respondent Thomas agree that the say pound shall stand a charge on the Leitrim  and Roscommon estate for the benefit of the appellant at pound per cent per  annum during the appellant life and at pound per cent per annum afterward and  a tenant of a principal part of the estate be assign over by the respondent  Thomas to the appellant for payment of the interest which the appellant  continue to receive accord a account be also sign between they on the same day  wherein the appellant charge the respondent Thomas with the interest of the  pound from before his wife death and do not give he any credit for the legacy  of pound leave to Margaret tenison the daughter by the will of her father  brown er p Elizabeth the wife of the respondent head have die in June the  respondent head administer to her in August the respondent first hear of the  appellant have the next morning after the burial of his wife burn the marriage  settlement which act of his he have all along with the utmost art and industry  conceal from the respondent whereupon the appellant be apply to to produce the  settlement he have state in his answer but he prevaricate and endeavour to  conceal his have destroy it till the respondent head tell he he can prove he  have burn it and the appellant not be able to give any reasonable or  satisfactory answer to this fact the respondent in January exhibit their bill  in the court of chancery in Ireland against the appellant and other charge  that the appellant have make his address to Margaret his late wife in London  in she refuse marry he until her personal estate shall be previous settle for  the benefit of her daughter Margaret and such other child as she may afterward  have that accord a settlement brown be execute by the appellant and Margaret  previous to their marriage whereby it be agree that the personal fortune she  be possess of and particular the several security and leasehold interest in  the bill mention shall be vest in trustee to permit and suffer her to receive  the produce and interest of the say several security and personal estate to  her separate use during her life and in case Margaret tenison her daughter  shall outlive her and the say Margaret the elder shall have other issue live  at her death that then she may dispose of her personal fortune among her child  as she shall think fit but in case her say daughter Margaret shall outlive her  and she shall have no other issue live at her death then and in such case her  whole personal fortune shall vest in and go to Margaret her daughter her  executor or administrator and that Margaret the elder thereby reserve to  herself a power to make a competent provision for Margaret her daughter out of  her personal fortune during her life if she shall marry with her consent that  soon after the death of his wife the appellant have destroy this marriage  settlement in order to conceal the content thereof from miss tenison and other  interest therein and the respondent title as her next of kin and therefore the  bill pray that they may be decree their distributive share of the residue of  the personal estate which Margaret the young be entitle to at her death and  that the respondent Thomas may be decree the legacy of pound and the interest  thereof and that the appellant may render a just account of the personal  estate which Margaret the young be entitle to at her death and that the  account and deed of the d of June may be set aside the appellant by his answer  admit that he pay his address in London to Margaret his late wife in and that  a settlement be execute previous to their marriage but deny that he perfect  any settlement whereby any limitation be make of the personal fortune of  Margaret the elder unto Margaret the young or any other person or that  Margaret the elder ever mention to he the least intention of settle her  personal fortune upon her daughter who name to the best of his remembrance and  belief be never once mention in the settlement enter into on his marriage with  Margaret but say that upon his intermarriage it be agree between he and his  wife and a settlement be thereupon execute by they whereby a power be reserve  to his wife to dispose of her personal fortune as she please by any deed under  her hand and seal in her lifetime or by her last will and testament but that  in case of no such disposal her whole personal fortune be thereby to be  absolute vest in the appellant in case he survive her to his own use and  benefit and that he consent to enter into the say deed and settlement upon a  solemn promise make to he by Margaret that she never will dispose of one  shilling of her personal fortune without his full and free consent and brown  that he shall be absolute master of it as if no such power have be ever  reserve to her and that her only reason for desire such a power be to fulfil a  promise exact from her by Mr Barton that in case of her enter into any  subsequent marriage she will reserve to herself a power over her personal  fortune and say he do not believe she be possess of any considerable sum of  money not even to the amount of pound he admit that the respondent Samuel head  apply to he for a sight of his marriage settlement upon which he declare he  have it not and do not give he the least hope of ever see it and then tell he  that there may be a counterpart of it lodge with a friend in England but that  be can not by any mean assure he of it or to brown er p that effect he also  admit that he never mention the settlement to the respondent Thomas before he  prefer his bill against he nor to any other person until the day on which it  be burn because it be a private affair and not intend to be make public and  that consider it as whole useless after the death of his wife he in the  presence of Dorothy Donagh and Elizabeth Berkley tell miss tenison that she  may throw it into the fire he then state the transaction of burn the  settlement in manner follow the next day after his wife be bury when he be in  great distress of mind with little attention to worldly affair miss tenison  come down from her own chamber to that in which the appellant then sit with a  parchment in her hand cover seal and endorse which as she then say she find  among her mother thing upon the sight of which without its be open and hear  the endorsement read immediate recollect that it be the aforesaid settlement  he in the presence and hear of Dorothy Donagh and Elizabeth Berkley tell miss  tenison what it be and further tell her it be then of no use and that she may  throw it into the fire which be accord do and to this answer the appellant  annex several schedule in one of which he value Clanmacnoise and clogher lease  together at pound though he have sell Clanmacnoise lease alone a few month  before to Thomas Adderley Esq for pound and clogher lease about the same time  to John wood for pound S this answer be except to the appellant put in a  further answer whereby he admit he do not previous to the agreement of the d  of June inform the respondent Thomas that the settlement be destroy and  believe that Thomas previous to that agreement have no notice it be destroy  the respondent find that the appellant have by his answer insist upon two  thing namely that miss tenison be entitle to no fortune and that the pound  mortgage be assign for his own use and benefit they amend their bill and  charge that the appellant write a letter to the respondent Thomas on the that  of February in which be a paragraph in the follow word I take it for grant  that you brown know miss Tenisons fortune of pound be to be pay out of a  mortgage upon your estate in the county of Leitrim and Roscommon assign to I  for that purpose the mortgage be for pound the appellant by his answer to the  amend bill say he remember nothing of his have write such a letter but own he  never make it a secret to any human creature that he intend that pound of the  pound shall be assign by he as a marriage portion for the use and benefit of  miss tenison and whenever she shall marry he have promise her mother that he  will assign that sum for a portion for her whenever she marry say he never  make the least difficulty of pay miss Tenisons legacy till the respondent  Thomas bill be file against he when upon inquiry he be full satisfy that  Richard Tenisons debt and legacy already pay by Margaret his late wife far  surmount the whole value of his personal estate reflect at the same time that  his wife never lie he under any promise or obligation to pay the say pound to  the executor of miss tenison or to any person whosoever in case she die  unmarried he apprehend and be advice that he be under no obligation to pay the  same but he admit there be a account settle between he and the respondent  Thomas on the d of June previous to which the appellant insist that Margaret  his wife have not leave a personal fortune sufficient to pay the legacy  bequeathe by her in which account he believe there be no credit give for the  say pound this cause be set down to be hear in Michaelmas term but the  appellant to postpone the hear and give the respondent all the delay in his  power exhibit a long cross bill against they contain the substance of the  defence in his answer and pray that the respondent may stop proceed in the  original cause till they answer the cross bill that both cause shall be hear  together and that the pound mortgage shall be foreclose but after the  respondent have answer this bill the appellant never bring his cause to hear  however upward of month after the original cause be at issue the appellant  obtain a order that he shall have a commission to examine John Burke Esq the  person say to have prepare the draft of the settlement of the that of July in  Jamaica returnable without delay and a commission be accord issue Mr Burke be  examine and depose that to the best of his recollection the appellant brown er  p acquaint he of his intention to marry and afterward of his marriage with mrs  Delane in or and that he very well remember that a deed or article be draft  ingross and prepare for execution relative to the appellant marriage some  short time before it be solemnized that he do not know whether it be execute  but believe it be because the appellant brown give he to understand that the  solemnization of the marriage wait for the execution of the deed that he  prepare it accord agreeable to the instruction give he and afterward give it  to a scrivener to ingross with blank for the party name which he fill up with  his own hand before he deliver it to the appellant that the import of this  deed to the best of his recollection be to vest her fortune or some  considerable part of it in trustee for her separate use during the coverture  and to secure the same to her in case she shall survive her intend husband  that he do not recollect whether there be or be not any power reserve to her  by this deed to dispose of all or any part of her estate but think he can be  certain there be not any provision use or limitation which relate to any  person but the appellant and mrs Delane on his cross examination he say that  his recollection of matter pass be as he believe pretty much like other people  he can recollect some circumstance of importance for several year and other  may have escape his memory and that this be the first deed he ever draw on the  d of December the cause be hear when the Lord chancellor of Ireland pronounce  the follow decree that the agreement of the d of June shall be set aside and  that the respondent be entitle to the sum of pound as representative of  Margaret tenison the young that it shall be refer to the master to take a  account of the personal estate of Margaret tenison the young into who hand the  same come and how dispose of and what debt and legacy be pay by the appellant  for or on account of the say Margaret the young and to take a account of the  personal estate and effect which the appellant wife be possess of or entitle  to at the time of her marriage with the appellant and at the time of her death  respective either in her own right or as executrix of or under the will of  William Barton or Richard tenison and to distinguish the same respective and  whether any and what part thereof come to the band of the appellant and when  and to take a account whether the say Margaret owe any and what debt at the  time of her marriage with the appellant and to who and whether any and which  of they have be since pay and discharge and by who and when in pursuance of  this decree the respondent bring in their charge before the master but the  appellant on the that of march petition for a rehear complain of the decree in  general and allege that if the court shall on the rehear think proper to  direct the account already direct it shall also direct a account to be take of  the asset and personal estate of Richard tenison and of his debt and legacy  and likewise a account of what asset or effect of the say Margaret the elder  be either by herself or in conjunction with her husband the appellant dispose  of after her intermarriage with he and how and brown accord the court order  the cause to be reheard the next easter term the respondent upon a affidavit  of the appellant age and circumstance whence it appear he have nothing but a  life interest in Mr Barton real estate his deanery and some chattel which  there be reason to think he will make away with to avoid the justice of their  demand then compute at upward of pound that he be year old and by his delay  the respondent be in danger of lose what they be entitle to move the court  that the rend of the remain leasehold interest shall be bring into court or a  receiver appoint to receive they and the appellant in his answer to this  affidavit disclose for the first time that he have sell the two lease of  Clanmacnoise and clogher it be order on the that of may that the appellant  shall from time to time bring into court the profit rend of the leasehold  interest of Stephens green and Kingstreet Dublin be the only leasehold  interest then remain which the appellant accord bring in to the amount of  pound S d the cause be reheard on the d d that and that of February when the  court affirm the former decree with the follow variation only videlicet that  the respondent Thomas tenison shall be decree the sum of pound in the former  decree mention together with the interest thereof as executor of Margaret  tenison the brown er p young and that the master on take the several account  direct by the former decree shall take a account of what part of the personal  estate and effect of Margaret the elder either by herself or in conjunction  with the appellant be dispose of after her intermarriage with he and how the  master by his report of the that of July whereto both side take exception make  this special point videlicet that William Barton have by his will bequeathe  one moiety of his estate to Richard tenison and the other moiety to trustee  for the use of Margaret Richard and Margaret his executor do by the deed of  the saint of may assign the say security to Campbell on the trust therein  mention that Margaret after the death of Richard and Campbell file a bill  against the representative of Campbell obtain a decree of the that of November  and a reassignment of the several security and the leasehold estate therein  mention in pursuance thereof on the that of march that the respondent insist  Margaret be entitle thereto one moiety under the will of William Barton and  the other moiety under the will of Richard tenison that the appellant admit  Margaret be entitle to one moiety under the will of Richard tenison but insist  that she be not entitle to the other moiety under the will of William Barton  but in her own right under and by virtue of the bill decree reassignment and  other deed wherefore it appear difficult to the brown master he submit to the  court in what right she be entitle to this moiety the cause be hear upon this  special matter and also on some of the exception on the that that that that  that d and that of may and on the that of June follow the Lord chancellor  pronounce the follow decree That the deed of the d of June shall be set aside  that the respondent be entitle in right of Margaret tenison the young to the  personal estate which Margaret the mother appear by the report to have be  possess of interest in or entitle unto at the time of her marriage with the  appellant and which he appear by the report to have receive after his marriage  with the say Margaret the elder the several sum therein mention amount to  pound S d out of which the appellant be to have credit for such sum as appear  by the report to have be pay by he and Margaret or either of they in discharge  of her debt due at her marriage with the appellant and for pound S pay to  Isaac manly for Frances Evans share of the pound mortgage assign to John  Pocklington and also for pound lend to the respondent Thomas and for pound  which Margaret the elder promise to give mary Shakleton amount to pound S d  which be deduct from the say pound S d a balance of pound S d remain which  balance with interest for the same at pound per cent per and from the death of  Margaret the elder to the death of Margaret the young the appellant be  answerable for to Margaret the young and to the respondent in her right amount  to pound S d which be add to the say balance amount to pound S d that the  appellant be entitle to credit out of the say sum as from the death of  Margaret the young for pound S d report to have be pay by he on her account  more than he receive on her account which be deduct from the say pound S d the  balance remain due be pound S d and decree to the respondent the say balance  against the appellant with interest at pound per cent per and from the that of  January to that June amount to pound S d that the appellant shall pay the  respondent the several sum report to have be receive by he since the death of  Margaret the elder for rend of the leasehold interest of Kilmurrys and  Aghafadd and of Clanmacnoise to the respective time he sell the same videlicet  seven year rend of Kilmurrys and Aghafadd at pound S a year amount to pound S  and six year and a half rend of Clanmacnoise at pound a year amount to pound  and also the sum receive by the appellant for the say leasehold interest at  the respective time he sell the same with interest for such sum at pound per  cent per and that be to say pound S receive for the lease of Kilmurrys and  Aghafadd in and the register be to compute interest for that sum from that  march which he do and the same amount to pound S d the sum of brown pound  receive for the lease of Clanmacnoise in September and the register be to  compute interest for that sum from saint October which he do and the same  amount to pound and that the appellant shall pay to the respondent pound S d  report to have be receive by he after the death of Margaret the elder for  interest of the pound brown er p mortgage all which sum amount to pound S d  which sum the appellant be to pay to the respondent with interest from the  date of the decree at pound per cent per and till pay and it be further order  that pound the legacy devise to Margaret the young by her father Richard  tenison which by the decree of d December and that February be decree to the  respondent Thomas as her executor shall be pay out of the pound mortgage and  that the remainder of the principal and interest due on that mortgage shall be  pay to the respondent and for this purpose the appellant and the defendant  helsham be order to assign the say mortgage and other security for the say  pound to the respondent or to such person or person as they shall appoint and  the court declare that the respondent be entitle to the leasehold interest of  the message and tenement in Kingstreet and saint Stephens green for the  residue unexpired of the term thereof and a injunction be to issue to put they  into possession and that they be also entitle to pound S d deposit with the  usher by the appellant on account of the profit rend of the say leasehold  interest and it be order that the appellant shall deliver up upon oath all  deed write and evidence in his hand power or custody relative to the pound  mortgage and to the say leasehold interest and it be further order that the  respondent shall give security to the appellant to be approve of by the master  to indemnify he for the security report to be give by the appellant to Michael  Dunn for a legacy bequeathe to Margaret his wife of pound by Margaret tenison  the young Payable on the death of Elizabeth Berkley and for pound report to be  still due to Elizabeth tenison for a legacy bequeathe to her by William Barton  and for the interest due to her for such legacy and it be refer to the master  to take a account against the appellant of what he receive for the profit of  the say leasehold interest in Kingstreet and Stephens green from the death of  Margaret the elder to the time the rend be order to be pay into court and his  lordship decree the respondent their cost against the appellant and that the  defendant helsham and Tenisons shall have their cost against the respondent  and that they shall have the same over against the appellant and that the  respondent may make up and enrol the say decree with cost against the  appellant and either party be to be at liberty to apply to the court for such  direction as shall be necessary for carry the decree into execution from all  these decree and other proceed the present appeal be bring and on behalf of  the appellant it be insist brown c Pratt g perrott that William Barton  personal estate vest in equal moieties in Richard tenison and Margaret his  wife afterward mrs Delane and that by the will of Richard tenison his moiety  vest absolute in Margaret to her own use and be part of her personal estate at  the time of her intermarriage with the appellant subject only to the payment  of Richard Tenisons debt and legacy and if nothing be do to prevent it the  same absolute vest in the appellant by the marriage or at least he become  entitle thereto as administrator of his wife that the moiety give to Margaret  by William Barton will be discharge of the trust of that will by the decree  and the several assignment and conveyance before state or at least the pound  mortgage upon Richard Tenisons estate be discharge of those trust by the  assignment to Mr Pocklington of the that of July the settlement of the saint  of December the decree of the that of November the settlement of the that of  December and last by the deed of the that of July and that the security upon  the land of Arthurstown be in like manner discharge of the trust in Mr Barton  will by the assignment to John foster Esq of the d of January and the deed of  the that of July that Choppins mortgage be likewise discharge of these trust  by a conveyance of the d of April and the lease hold under the see of clogher  and meath by the renewal which the appellant make in his own name in the  lifetime of his wife wherefore it be apprehend that no part of the personal  estate of Mr Barton ought to have be consider as subject to the trust of his  will at the time of mrs Delane death and this will bring the case to the great  question between the party videlicet whether the court of chancery in Ireland  ought to have presume that by the article of settlement execute previous to  the marriage of the appellant the whole personal fortune of mrs Delane be  agree to be vest in trustee upon trust to permit her to receive the produce  and interest of the say several security and personal brown er p estate to her  own separate use during her life and in case Margaret the young shall outlive  her and Margaret the elder shall have other issue live at her death that then  she may dispose of her personal fortune among her child as she shall think fit  but in case Margaret the young shall outlive her and Margaret the elder shall  have no other issue live at her death that then and in such case the say whole  personal fortune shall vest in and come to Margaret the young her executor and  administrator and that Margaret the elder thereby reserve to herself a power  to make a competent provision for the say Margaret the young of the say  personal estate during her own life if Margaret the young shall marry with her  consent and it be contend that no such presumption ought to have be make  because it be not only whole destitute of any proof to support it but beside  the oath of the appellant there brown be proof by the drawer of the settlement  to the contrary and every fact and circumstance in the cause prove that the  settlement can not be of such import or effect it be however say that the  settlement have be destroy by the order of the appellant he be to be consider  as a spoliator and every thing be to be presume against he but this proceed  upon a mistake for it be not every destruction of a deed that make a  spoliation but it must be do evil mind to injure another whoever therefore  will charge any person as a spoliator must show that he have a interest in the  deed destroy but there be no such proof in the present case on the contrary  all the proof in the cause relate to this matter be on the other side if it be  just to conjecture the content of the settlement it be not credible that mrs  Delane shall restrain her power over her personal estate in so strict a manner  as be suppose by the respondent bill she be at that time indebt in more than  pound and yet by this extraordinary settlement she have not leave herself the  power of apply a single shilling in the payment of her debt beside if the  settlement have be of such import it can never be believe that she will not  acquaint some friend with it and yet there be not the least evidence of a  single declaration from her that any such settlement have be make and every  act do by her after her marriage contradict the notion of any such settlement  have ever exist as they be inconsistent with it that the particular caution  she use in prevent the nature of this settlement from come to the knowledge of  any other person not only by not declare the nature of it to any one but by  the superscription on the paper in which it be enclose all in her own  handwriting namely this be not to be open by any one but either dr Delane or  mrs Delane be express prove and evident show that nobody be interest in it but  the appellant and herself and be a prohibition to every body but her husband  even to look into it that this be total inconsistent with the notion that it  be make for the purpose contend for by the respondent who must insist that the  deed be make to secure the personal estate to the daughter and put it out of  the power of the husband at the same time that the endorsement put it absolute  in the power of the husband by deny as it be to every one else the mean of  know not only the content of it but even that there be any settlement at all  that the manner in which the appellant destroy the settlement evident show his  innocence have he intend a fraud he will have do it secret and not in the  presence of the only person who be now pretend to have be interest in it he  will not have declare it to be a marriage agreement between he and his wife  which may natural lead the daughter to inquire into the content nay how can  the appellant be sure that mrs Delane have not communicate the content to her  daughter in which case his fraud will have be detect in the very act his  purpose will brown have be defeat and he himself expose before witness to that  very person from who he shall have conceal his iniquity it be therefore hope  that the decree will be reverse the respondent bill dismiss with cost and  restitution decree the appellant of the money pay into court together with  quiet possession of the premise for the time to come on the other side it be  say c York a forester that the appellant admit a settlement make previous to  his marriage in restraint of his marriage right and that he destroy it without  regard to those concern in its preservation and without its ever be inspect by  they miss tenison her mother only child have a clear right to inspect that  settlement to see how far the restraint go and whether there be not some  limitation in her favour which be very natural to presume her mother be  possess of a very large real and personal estate far exceed the appellant  around brown er p stances the respondent Thomas as miss Tenisons testamentary  guardian have also a right to inspect the settlement that the appellant have  avail himself and now feel the benefit of his wife power of dispose of Mr  Barton real estate but miss tenison accord to the appellant pretence that her  father have not leave wherewithal to pay her pound legacy have not a shilling  during her mother life but what she may expect from her it be therefore to be  presume that a provision be make for her by the settlement and the quantum of  that provision not appear from the appellant own voluntary act in burn that  settlement every thing be to be presume in odium spoliator since otherwise the  innocent may be irretrievable injure by the act of the guilty the appellant  therefore have himself destroy the only evidence which can ascertain the  extent of his right to his wife personal estate admit by himself to be  restrain by the settlement miss tenison alone and her representative have a  right thereto that the establish rule of presume every thing against the  spoliator derive additional weight in this case from the whole tenor of the  appellant behaviour immaterial as he pretend the settlement to be by his wife  death he conceal his have destroy it with the great art and secrecy during the  former suit between he and the respondent Thomas and even at the time of the  agreement between they in and so down to the period of his be charge with it  by the respondent head the confession he be at last drive to in his answer  contain a account of burn the settlement very different front that give by the  witness present Elizabeth Berkley he call it a settlement and say he tell miss  tenison what it be whence one will imagine that he tell her it be a settlement  make on his marriage with her mother relative to her mother personal estate  but mrs Berkley swear he only say it be a agreement between he and his wife of  no use to any one else word of a very different import as a agreement between  he and his wife may indeed be of no use to any one else as relate to many  other thing than a settlement brown of her fortune so that miss tenison be  hereby lead to think it nothing in which she can have any concern and her  suspicion be prevent she be herself make the innocent instrument of execute  the appellant purpose his behaviour respect the pound mortgage be answerable  to the rest he all along claim it as assign to helsham for his benefit he say  by his first answer to the respondent original bill that it be so and when  they by their amend bill produce his letter of that February to prove that  assignment be intend for secure miss Tenisons pound which letter he do not  remember have write he endeavour to reconcile this contradiction by say he  never make it a secret that he intend assign her that pound as a marriage  portion in pursuance of a promise make to her mother although such intent do  not appear to have be ever reveal before the production of the letter and  although the letter itself write a month after miss Tenisons death when she no  long want a marriage portion state the assignment to have be make at the time  for secure her this pound and not to depend on any future gift of his he also  swear by his answer that his wife be not possess of ready money to the amount  of pound at the time of his marriage whereas one of her banker prove that she  have then above pound in their hand and that the appellant draw it out soon  after the marriage he likewise in one of the schedule annex to his answer  value Clanmacnoise and clogher lease together at only pound when he have but  in the September precede sell the former for pound and the latter about the  same time for pound S but it be object that the deed do not appear to have be  destroy evil mind it be a accident or at worst a inadvertent inconsiderate or  improvident act and therefore the appellant shall not be punish as a wrongdoer  accident however suppose no design but this appear to be a deliberate act the  appellant know the purport of the deed and what he do be to prevent any  inquiry or suit about it but suppose it a inadvertent or improvident act only  still the party be as much injure as if do with a evil intent and as court of  human judicature can determine the intent from external act only it be  incumbent on a court of equity to relieve a person undeserving injure by the  act of another and replace he in the best situation it can without enter into  the character or station of the person do the injury the appellant swear by  his answer that he consent to the power reserve to her over her personal  estate by the settlement only upon a solemn promise that she will never  dispose of it without his full and free consent and that the power be insert  only to fulfil a promise of she to her father that in case of a second  marriage she will brown er p reserve to herself the disposal of her personal  estate have she put it into write a court of equity will have see it execute  and though but verbal it must brown sure appear to one of the appellant  function equal bind in door knowledge but where be the difference between her  have and not have such a power reserve when upon the appellant own show she be  not leave at her free choice to execute it he further say that notwithstanding  the great disparity of their circumstance he will not have marry her but for  the above promise she make he which without enter into the credibility of it  be say he will not have marry her unless she consent to break a just and  reasonable promise make to a decease beneficent father from who she derive  every shilling of her fortune it be further object that the content of the  settlement do not rest upon the appellant answer only but also upon the  evidence of Mr Burke who draw it but to this it may be answer that his  evidence ought not to have be read for however proper parole evidence may be  to prove the purport of a deed lose by accident or misfortune a person who  wilful destroy certain unerring evidence must not be permit to substitute  doubtful parole proof in its room beside Burke evidence be vague and uncertain  be only a narrative from recollection and belief of a transaction many year  pass and even such as it be he do not pretend to say that a deed agreeable to  his draft be ever execute by the appellant or his wife and the draft may have  be alter by they upon perusal so that there be no evidence of the content of  the settlement execute Burke be a young man and have be but a few year at the  temple when he prepare this draft and suppose it to be that of the settlement  execute it be probable that a man of so little experience can not draw a deed  of this nature without great mistake and have there be any defect or blunder  in the deed with regard to the limitation the daughter have a right to take  the advantage thereof which be a valuable chance but the appellant by destroy  it put that out of her power it be also say that let the spoliation be  construe as it may the appellant do not derive under the settlement but be  entitle as administrator of his wife but if every thing be to be presume  against a spoliator the settlement must be consider as a bar to the husband  right and consequent to his right as administrator which can be find only on a  marriage without settlement and if a person destroy a deed or will which may  restrain his right he shall never be permit to claim as heir or next of kin  for that will be encourage the suppression of deed and will as the spoliator  may resort to his title of heir at law or representative though all be give to  other by the instrument which he have suppress that put the marriage  settlement out of the case miss tenison be entitle to such part of her mother  personal estate as she take under Mr Barton her father will nothing have be do  by the mother to extinguish or change his disposition the assignment brown to  Campbell in may be only to ascertain the quantum of Mr Barton personal estate  and he thereby become a trustee of her moiety express on the foot of the will  nor be there any thing in the decree of or the reassignment of march which  hint the least intent in the court or in herself to affect the right of her  child by vary the nature of the interest she take by her father will the  assignment to Pocklington of the pound mortgage be but a temporary disposition  and upon payment revert to her in the same plight as it do also on her son  William death without issue and be not settle at all on her daughter Elizabeth  marriage miss tenison therefore have a lie on this moiety of Mr Barton asset  at the time of her mother marriage with the appellant but it have be say that  the respondent can claim nothing which the wife dispose of before her death  and that she dispose of Choppins mortgage of the Menaghan land williams  mortgage of Arthurstown and the Leitrim and Roscommon mortgage of pound as to  the first the money due thereon be claim and receive by the appellant in his  right of husband and as have dominion over it and not as a gift from Margaret  and if he be exclude from the right of a husband he must be consider as have  receive this money in trust for Margaret and consequent at her death be a  trustee for her and afterward for her daughter the assignment of Arthurstown  mortgage for the appellant benefit also recite his right thereto as husband  but this recital be destroy by the claim he now set up to his wife whole  personal estate under the settlement and be a manifest evidence of fraud and  coercion brown er p on his wife who as a feme covert be entitle to a most  liberal and favourable construction of her act which must be impute to her  husband influence the assignment of the letrim and Roscommon mortgage for  pound be indeed silent as to any trust but the trust as to three four of it be  now clear establish by the appellant letter of that February which lie open  the fraud of that transaction nor can he avail himself of the remain four  because it come within the answer give as to the two former mortgage beside as  the settlement of July must now be presume to be whole in miss Tenisons favour  it be not in the power of her mother or the appellant to defeat any part of it  and consequent these mortgage interest fall under the same rule as the rest of  the personal estate and as to the pound legacy it be say that the father do  not leave asset sufficient and that miss tenison be not entitle to any thing  but her wear apparel and a few movable but this be sufficient answer by the  appellant letter which not remember he have write he charge miss Tenisons  executor with the whole interest of this mortgage from the death of his wife  as a debt due to himself in the account state preparatory to the agreement of  June brown after hear counsel on this appeal it be order and adjudge that that  part of the decree of the d of December which direct that the deed of the d of  June shall be set aside shall be affirm and that after that part of the say  decree which decree that the respondent as representative of Margaret tenison  the young be entitle to pound with interest from her mother death these word  shall be add and that the appellant do pay the same to the respondent Thomas  tenison executor of the say Margaret tenison the young the act do by the  appellant and his late wife amount to a admission of asset for that purpose  and also that that part of the say decree which direct a account to be take of  the personal estate of the say Margaret tenison the young into who hand the  same come and how dispose of and what debt and legacy be pay by the appellant  on her account shall be affirm with this addition videlicet that the appellant  do pay what shall be come on the balance of that account to the respondent  Thomas tenison her representative and it be further order and adjudge that all  the rest of the say decree and also the decree of the that of February upon  the rehear of the cause shall be reverse and it be declare that neither the  assignment make by Richard tenison and Margaret his wife date the saint of may  to Charles Campbell or the bill file by Margaret tenison in January against  the representative of the say Charles Campbell nor the decree make thereon nor  the reassignment by Campbell executor in pursuance thereof date the that of  march do amount to a sufficient appointment or discharge of the trust in the  will of William Barton concern the moiety of his personal estate bequeathe to  the appellant late wife in manner therein mention and it be refer to the  master to take a account of the personal estate of William Barton whereof mrs  Delane or any other person in trust for her be possess at the time of her  marriage with the appellant and also how the same be dispose of and it be  declare that so much of one moiety of the say personal estate as be not  sufficient dispose of or appoint by the say Margaret tenison pursuant to her  say father William Barton will belong to Margaret tenison the young and be to  be carry to the account of her personal estate the appellant not be entitle to  claim any benefit whatsoever by or under the settlement allege to have be make  on his marriage with his late wife the same have be burn by he or by his  direction and it be further declare that the sum of pound secure by a mortgage  of part of Richard Tenisons estate and also the mortgage upon the estate call  Arthurstown and also Choppins mortgage appear to have be sufficient appoint or  dispose of free from the trust in the will of William Barton and it be order  that in take the say several account the master shall make to all party all  just allowance and particular to the appellant a allowance brown of one moiety  of the fine and charge of renewal of any lease part of the estate of William  Barton which be pay by he with interest after the rate of pound per cent per  annum for such moiety of such fine and charge from the death of his late wife  and that for the better take the say account all party shall produce before  the master all deed write book and paper touch or concern the same and be  examine upon interrogatory as the master shall think fit and that in take the  last mention account brown er p the appellant shall be charge with one moiety  of the rend and profit of such leasehold estate part of William Barton  personal estate as be not sufficient dispose of or appoint as aforesaid and  which accrue since the death of his say wife until the same be respective sell  by the appellant and from the time of such respective sale with one moiety of  the money arise by such sale and interest for the same after the rate of pound  per cent per annum and as to what shall be come to the estate of Margaret  tenison the young for the residue of the say moiety of William Barton personal  estate not appoint or dispose of as aforesaid the appellant shall be charge  with interest for the same after the rate of pound per cent per annum from the  death of his say late wife and it be further order and adjudge that all the  subsequent proceed complain of in the appeal shall be reverse and that the  appellant shall pay to the respondent their cost of this suit in the court of  chancery in Ireland to the time of the first hear include the cost of that  hear and as to the subsequent proceed that no cost shall be pay on either side  and it be further order that the subsequent cost in the say court of chancery  and all further direction shall be reserve with liberty for any of the party  to apply to the say court as there shall be occasion and that the say court  shall give all proper direction for carry this judgement into execution jour  vol p