brown case countess dowager of Roscommon appellant thomas fowke Esq respondent  et e contra d April Mews dig pound a power of revocation be reserve to a by  any write under his hand and seal and of appoint new use by the same or any  other deed a by his will without take any notice of the power devise the  estate to b hold that this be a good execution of the power decree of the  Irish chancery vary sir Henry Ingoldsby Bart grandfather of the appellant and  of Elizabeth late wife of the respondent Thomas fowke be seize in fee of  several castle manor and estate in the county of east meath and Clare and of  several house in the city of Limerick in Ireland and have issue two son  William his old and Charles his young son by indenture of lease and release  date the d and d of July in consideration of a marriage then late have between  the say William Ingoldsby and theophila his wife and in pursuance of article  date the that of October make previous to that marriage and for other  consideration in the settlement mention sir Henry grant and convey all the  before mention estate in east meath and Clare by their particular denomination  and all other his estate in those county or elsewhere in the kingdom of  Ireland to sir Berkley Lucy and colonel Ingoldsby and their heir to the use  follow as to the estate in the county of east meath to trustee for a term of  year if William in Ingoldsgby and theophila shall so long live to secure a  annuity of pound per Ann to theophila for her separate use remainder to  William Ingoldsby for life remainder to trustee to preserve contingent  remainder remainder to theophila for life remainder to the first and other son  of William and theophila in tail male remainder to trustee for a term of year  to raise portion for daughter of that marriage remainder to the first and  every other son of William by any other wife in tail male remainder to Charles  Ingoldsby for life remainder to trustee to preserve contingent remainder  remainder to the first and every brown er p other son of Charles in tail male  remainder to sir Henry Ingoldsby and the heir of his body and after other  remainder which never take effect remainder to sir Henry Ingoldsby in fee as  to the estate in the county of Clare and city of Limerick except the land of  Clanderilaw and several other land particular describe and except to the use  of sir Henry Ingoldsby for life remainder as to part to dame Ann his wife for  life remainder of the whole to William Ingoldsby for life remainder to trustee  to preserve the contingent remainder remainder to the first and other solid of  William and theophila in tail male remainder to trustee for year to raise  portion for daughter remainder to the first and every other son of William  Ingoldsby by brown any other wife with like remainder over to Charles and his  issue male as be limit of the east meath estate with remainder to sir Henry  Ingoldsby in fee and as to the land of Clanderilaw Derialicky Derigyhee and  the other land in the county of Clare except out of the precedent limitation  to the use of sir Henry for life remainder to Charles Ingoldsby for life  remainder to trustee to preserve contingent remainder remainder to his first  and other son in tail male remainder to sir Henry and the heir of his body  with several other remainder over which never take effect remainder to sir  Henry Ingoldgby in fee fine and recovery be afterward levy and suffer of all  the before mention estate in pursuance of a covenant in this settlement sir  Henry Ingoldsby and his wife die in and Charles his second son die in in the  lifetime of William Ingoldsby then sir William leave one son Henry who die  without issue in and one daughter the appellant lady Roscommon sir William  Ingoldsby have issue by theophila his wife only one daughter Elizabeth who  afterward with the consent of sir William intermarry with the respondent  Thomas fowke and be by virtue of the settlement entitle to a portion of pound  which be afterward pay by sir William to the respondent sir William Ingoldsby  after the death of his wife without issue male and of his brother Charles and  Henry his son without issue male be as heir of the body of sir Henry Ingoldsby  tenant in tail general of all the before mention estate by virtue of the  several limitation in the settlement by indenture of lease and release date  the that and saint of October convey all the estate in east meath and Clare  and in the city of Limerick except Gortafeen which be not then in his  possession to Thomas Barry to make he tenant to the precipe that recovery may  be suffer of those estate which recovery be thereby declare to be to the use  of sir William and his heir in easter term recovery be accord suffer of the  east meath and Clare estate but the house in Limerick be of small value no  recovery be suffer of they the remainder in the settlement of of the Clare and  east meath estate be bar by these recovery and sir William thereby become  seize in feesimple in easter term he together with the respondent fowke and  Elizabeth his wife levy a fine sur conusance de law etcetera to James  Medlicott of the land in Girley and curragh town in the county of meath and in  Hilary term in consideration of pound another fine be levy by they of several  other part of the estate in the county of meath to Thomas Jones esquire and  other part of the estate in the county of Clare be grant in feefarm by sir  William reserve certain rend in April sir William Ingoldsby die and upon his  death the feesimple and inheritance of the land in the county of east brown  meath and Clare include in the recovery in and the rend of such of they as  have be afterward grant in feefarm by sir William descend to Elizabeth the  respondent late wife as his only child and heir and she become entitle to a  estate tail in the other premise not include in these recovery under the  limitation in the settlement of and be so seize by indenture quadrupartite  date the that of June and make between the respondent and Elizabeth his wife  of the first part the most noble James duke of chandos and sir Berkley Lucy of  the second part Richard Pierson and Robert Allen esqrs of the three part and  James Howison of the city of Dublin esquire of the four part the respondent  covenant and agree with Howi brown er p son that he and his wife will before  the end of Michaelmas term then next ensue levy fine sur conusance de law  etcetera with proclamation of all the land in the county of meath and Clare  and the house in Limerick and the feefarm rend of such of the land as have be  grant by sir William and all other the castle manor message town land tenement  feefarm rend and hereditament whatsoever which descend or come to Elizabeth  the respondent wife by the death of sir William or sir Henry Ingoldsby or in  which she or the respondent in her right or any other in trust for her have  any estate in the county of east meath or Clare or in the city of Limerick or  elsewhere in the kingdom of Ireland to the several use follow videlicet as to  all the estate in the county of Clare and city of Limerick except Gartafeen  and also all the premise call Girley or NewtonGirley or curragh town in the  county of meath to the use of the respondent for life without impeachment of  waste remainder to trustee to preserve contingent remainder remainder to the  use of Elizabeth the respondent wife for life without impeachment of waste  remainder to trustee to preserve contingent remainder remainder to the duke of  chandos and sir Berkley Lucy for year to raise pound portion for young child  of the respondent and Elizabeth remainder to the first and other sans of the  respondent and Elizabeth in tail male remainder to their daughter in tail  general and for default of such issue remainder to Elizabeth fowke and her  heir and as to all the premise in the county of meath except the before  mention premise in Girley and NewtonGirley and curragh town and also the land  of Gortafeen and all the other estate intend to be comprise in the say fine of  which no use be before limit to the use of Pierson and Allen and their heir  upon trust by sale or mortgage to raise such sum of money as the respondent  and Elizabeth his wife or the survivor of they shall by any write under their  hand and seal or under the hand and seal of the survivor of they attest by two  or more credible witness direct or appoint and after raise and payment off  such sum and their charge to convey the residue of the premise unsold and the  equity of redemption of such as shall be mortgage to the respondent for life  without impeachment of waste brown and after his decease to the use of such  person and person and for such estate and estate and Chargeable with such sum  or sum as the say Elizabeth shall by any write under her hand and seal attest  by two or more credible witness notwithstanding her coverture and as if she be  sole and unmarried direct limit or appoint and for want of such direction  limitation or appointment to convey the same to her and her heir and assign  for ever and in this indenture be contain a proviso in the word follow provide  always and these present be upon this condition nevertheless that if there  shall be no issue by the say Thomas fowke on the body of the say Elizabeth his  wife beget or be such all of they shall die in the lifetime of the say  Elizabeth that then and in such case it shall and may be lawful to and for the  say Elizabeth by any write under her hand and seal attest by two or more  credible witness notwithstanding her coverture and as if she be sole and  unmarried to revoke alter change or make void all or any the use or use estate  and estate trust limitation declaration and agreement in these present contain  except the estate for life herein before limit or intend to be limit to the  say Thomas fowke without impeachment of waste and except such estate as shall  be sell or mortgage by the say Richard Pierson and Robert Allen for raise  money as aforesaid and except such feefarm grant and lease for year as shall  be make by virtue of the power herein before mention and by the some or any  other deed notwithstanding her coverture and as if she be bowl and unmarried  to grant limit and appoint the same premise or any part or parcel there of to  any person or person whatsoever for such use and use estate and estate either  in feesimple fee tail or for life or life or for any term or number of year  determinable on any life or life or any term or number of year certain and  charge and Chargeable with such annual sum and sum of money and in such manner  and form as say Elizabeth shall think fit direct or appoint any thing herein  before contain to the contrary notwithstanding in Michaelmas term fine with  proclamation be duly levy by the brown er p respondent and his wife to James  Howison of all the before mention estate in the county of meath and Clare some  of the estate be sell by the trustee and other mortgage in pursuance of the  aforesaid trust with the concurrence of the respondent and his wife for the  payment of sir William ingoldsby debt and for other purpose but the land  convey to the trustee by the deed of not be sufficient to discharge all the  debt and encumbrance affect the estate and the respondent not have any issue  by Elizabeth his wife live by indenture of lease and release date the that and  that of July the release be quadrupartite and make between the respondent and  Elizabeth his wife and Robert Allen of the first part the duke of chandos and  sir Berkley Lucy of the second part John fowke esquire of the three part and  Thomas Meagher esquire of the brown four part recite the settlement of the  that of June and some other subsequent deed whereby the interest of Richard  Pierson the trustee have be assign to John fowke and recite that part of the  premise vest by the settlement in in Robert Allen and Richard Pierson have be  sell and that other part have be mortgage and that the money arise by such  sole and mortgage have be apply in satisfaction of just debt and encumbrance  but that the same be insufficient for the payment and discharge of all the  debt and encumbrance affect all the estate in the former settlement and that  it be therefore necessary for the discharge of sir William ingoldsby debt and  other debt that a further part of the estate shall be vest in trustee to be  sell for payment thereof and that it be most convenient that the residue of  the east meath estate shall be sell for those purpose therefore the respondent  and Elizabeth his wife and Robert Allen convey to John fowke and his heir all  the castle manor and estate whatsoever in the county of east meath which  remain unsold upon trust by sale or mortgage to raise from time to time such  sum of money as the respondent and Elizabeth his wife or the survivor of they  shall by any write or write under their hand and seal or under the hand and  seal of the survivor of they attest by two or more witness direct or appoint  to be apply as they or the survivor of they shall direct and after payment of  such sum and their charge upon trust to convey the residue of the premise  remain unsold and the equity of redemption of such as shall be mortgage to the  use of the respondent for life without impeachment of waste and after his  decease to the use of such person and person and for such estate and estate  and charge and Chargeable with any annual or other sum of money in such manner  as the say Elizabeth fowke shall by any write under her hand and seal attest  by two or more credible witness notwithstanding her coverture and as if she be  sole and unmarried direct limit or appoint and for want of such appointment to  Elizabeth fowke her heir and assign for ever and the duke of chandos and sir  Berkley Lucy likewise assign the term of year of the before mention estate in  the county of meath vest in they by the settlement of June to Thomas Meagher  upon trust to attend the inheritance and there be a proviso in this deed that  nothing therein contain shall extend to alter the use in the settlement of  limit of the land of Gortafeen or of the premise in the county of Clare or  city of Limerick but that the same be then of the yearly value of pound S  shall stand charge with and be subject to the raise the pound portion and such  other trust as the say term of year stand thereby limit and also another  proviso that until the premise in the county of meath shall be sell the  respondent and his wife during their life and every other person who shall be  entitle to the same by the former settlement of shall receive the rend and  profit thereof and a power be give to the respondent and brown his wife and  the survivor of they by deed in write to lease the estate in the county of  Clare and city of Limerick to any person in feefarm for life or year as they  shall think fit reserve the best improve rend the respondent wife not have any  child live duly make her last will in write or write in nature of a will under  her hand and seal and in the presence of three credible witness who attest the  same in her presence date the that of January and thereby without take notice  of the power in the settlement of she devise all her estate which descend to  her by the death of sir William Ingoldsby or sir Henry Ingoldsby and in which  she or the respondent in her right or any other person in trust for her then  have any estate in the county brown er p of Clare or east meath and city of  Limerick or elsewhere in the kingdom of lreland subject to the legacy therein  bequeathe to the respondent and his heir soon after make this will videlicet  in July the respondent wife die and the respondent continue in possession of  all the estate in the county of meath and Clare and of the house in the city  of Limerick which remain unsold and be include in the original settlement of  except the land call Gortafeen which never be in the possession of the family  and for which a ejectment be bring by the respondent and Elizabeth his wife  but no judgement be ever obtain therein and except the land of Clanderilaw  Derialicky and Derigyhee and the other land include in the last limitation in  the settlement of in July the appellant file her bill in the court of chancery  in Ireland against the respondent and against John fowke Robert Allen and  Thomas Meagher set forth the before mention settlement and the fine levy by  the respondent and his wife and that she be in seize and perception of the  rend be pound per and of the land of Clanderilaw and the other except in the  county of Clare and insist that as heir general of sir Henry and sir William  Ingoldsiby and of Elizabeth the respondent late wife she be entitle to the  reversion of the premise in the county of meath and Clare and city of Limerick  after the death of the respondent and to the immediate seize of Gortafeen but  can not sue for the same have none of the title deed nor a knowledge of any of  the Settlements but from the enrolment of the original settlement and memorial  of other deed in the respondent custody and charge that the respondent have  make lease of part of the premise and intend to sell or encumber the other  estate and therefore pray that the respondent may set forth a listen of the  deed in his hand relate to the premise and the content thereof and sir William  title to Gortafeein and his debt and any other deed or fine except those state  by the bill which be levy or execute by the respondent and his wife and a  listen of the land sell and lease and the sum receive thereby and whether  execute any lease in reversion or accept of any surrender and what fine he  receive on lease brown to this bill the respondent put in a answer and plea  and to so much of the bill as require the respondent to set forth the deed and  write relate to the say estate or any part thereof in his custody or power  except the deed set forth in the answer or that pray a discovery of the debt  of sir William Ingoldsby or of the estate which be lease mortgage or sell by  the respondent and his wife or by he since her death or of the money raise  thereby or how the same be apply or whether the respondent and his wife have  execute any deed or levy any fine except those before mention or whether he  have make any lease of the premise or accept fine on grant such new lease and  in bar of the relief pray by the bill the respondent plead the settlement in  and the other deed and fine before mention and the will of Elizabeth his late  wife and insist that by the common recovery suffer by sir William Ingoldsby he  become seize in fee of the premise therein contain and that the remainder in  tail create by the settlement in be bar and destroy that the inheritance of  the premise descend to Elizabeth his wife and that she by join with he in levy  the fine in and execute the before mention deed of the that of June to declare  the use of those fine and by virtue office power of revocation therein contain  be well enable to execute the deed of the that and that of June and to make  her say will and that by virtue thereof he be well entitle to the inheritance  of those estate and that the appellant be bar of all right or claim thereto  this plea come on to be argue upon the that of may when it be order that the  benefit of it shall be reserve till the hear with liberty for the appellant to  except to the answer on the that of November the cause be hear and on the that  of December follow it be order that a state of the case shall be draw up and  send to the court of common plea for the opinion of that court whether the  will or write purport to be the will of Elizabeth fowke bear date the that day  of January be a due execution of the power in the deed of the that day of June  or not and further direction be reserve till after the court shall have  certify their opinion brown er p in pursuance of this order a case be accord  state and the say court of common plea after hear the matter speak to by  counsel on both side be please to give their opinion in write in the word  follow we be of opinion that the will or write purport to be the will of  Elizabeth fowke bear date the that day of January be a due execution of the  power in the deed of the that of June Henry Singleton George gore Robert  Lindsai upon the return of this certificate the cause come on again to be hear  for further direction upon the d of February and be adjourn till the that when  it be among other thing order and decree that the respondent shall bring in  and deposit brown with the usher of the court all the deed paper and write  which be in his hand power or custody at the time of fill the bill or since  relate to the land of curragh town in the county of meath Gortafeen in the  county of Clare and the house and land in the city of Limerick subject to the  further order of the court and that no person shall have inspection of the say  deed paper and write without the order of the court and it be further declare  and decree that the appellant be entitle unto and shall have and recover the  land of Gortafeen and the reversion of the house and land in the city of  Limerick after the death of the respondent and that all temporary bar as to  the say house and land shall be set aside and it be further order and adjudge  that the plea put in by the respondent shall be allow and that the bill as to  all the land mention in the plea except the land of Gortafeen and the premise  in Limerick shall be dismiss and his lordship be please to reserve the  consideration of the appellant apply to the court to set aside all temporary  bar as to the land of curragh town and it be further order that it shall be  refer to the master to take a account of what debt affect the estate of sir  William Ingoldsby at the time of his death and what part thereof have be pay  and by who and also what be the debt affect the same since his decease the  amount of such debt and by who contract with other direction usual as to  matter of account and further direction be reserve till after the report from  this decree the countess appeal insist d rider W Murray that in case the  former power of revocation continue notwithstanding the subsequent deed of  July Elizabeth fowke have not proper execute that power by her will for accord  to the word and intent of the power reserve to her by the deed of June it  ought to have be execute by deed and not by will and therefore the reversion  of the estate in Clare descend to the appellant that two power be reserve to  Elizabeth by the deed of one to revoke the use of the estate in Clare by deed  the other to limit such part of the estate in east meath as remain unsold by  any write now she have make will without recite any power and thereby give all  her estate to heir husband which may be a proper execution of the latter power  but not of the former it be reasonable therefore to suppose that she only  intend to do what she regular have do and upon this supposition she have  provide for her husband in a ample manner for his life and even give he some  part of the estate in fee but have permit the reversion of other part to  descend to the heir at law of the family and this seem to be a reasonable and  equitable disposition that as the land of Gortafeen be not in the fine nor be  Elizabeth ever in possession the court have declare the appellant to be  entitle thereto in possession and therefore the deed and write thereof ought  to have be decree to be deliver to her that as the house in Limerick be not in  the fine they be declare by the decree to belong to the appellant brown in  reversion and the deed and write ought not only to have be direct to be bring  into court but the appellant ought to have be permit to peruse and take copy  of they and for the same reason she be entitle to the same decree as to the  land of Derialicky and Derigyhee and as the land of Currugh town be not  comprise in the fine levy by Elizabeth Fawke they can not be affect by the  deed which she have execute and therefore it be conceive that all temporary  bar as to these land ought to have be remove and that the appellant ought to  have be at liberty to have inspect and take copy of the deed and write relate  thereto as to the objection take to the decree by the cross appeal that the  deed and write ought not to have be direct to be produce and that no account  ought brown er p to be take of sir William ingoldsby debt or of the money  raise by sale of his estate the appellant insist that in these particular the  decree be right for as to the first objection it be already answer and must  depend upon the right to the estate and as to the second sir William die seize  in fee of the several land claim by the appellant and their before such land  be legal asset as to his specialty creditor if therefore the appellant be  entitle to any of these land a account of sir William debt and of what sum  have be raise for the payment thereof be absolute necessary to be take in  order that it may appear how far the land claim by the appellant be liable to  the payment of those debt in opposition to the ground of the original appeal  it be argue I brown t clarke on the part of the respondent that he be entitle  to the absolute inheritance of all those estate which descend to Elizabeth his  late wife front sir William Ingoldsby and be include in the settlement and  fine of for by the power which she reserve to herself in that settlement she  be enable by any write under her hand and seal attest by two or more credible  witness to revoke and change all the former use therein limit and by the same  write or any other deed to appoint new use and heir will or the write in  nature of her will be a good execution of this power of revocation and  appointment it be a write under her hand and seal attest by three credible  witness and substantial as well as literal answer the description and comprise  all the requisite of the power that to confine the execution of the power as  if design to be by deed only by reason of the latter word in the proviso by  the time or any other deed and to infer from thence that the write express  mention in the former part of the power and refer to even in this latter  branch of it must be only such a write as be in point of law a deed will be to  make a construction of the power direct contrary to the former part which  enable heir to revoke the old use by any write as well as to the latter part  of it which enable her to appoint new use by the same write and will be to  defeat and take away the operation of clear and plain brown word by  implication and inference only and this too in a case where the most liberal  construction in favour of the execution of the power be always make this be a  power reserve by the owner of the inheritance and therefore to be consider as  part of the original dominion or right of disposal which a tenant in feesimple  have by law over his estate and in support of the cross appeal it be contend  that the only part of the estate which by the decree the appellant be declare  to be entitle to be the land at Gortafeen and the house in Limerick of very  small value the decision of the right to the land at curragh town be reserve  by the decree for the future consideration of the court and the deed and write  which the decree direct to be bring into court as relate to these three small  parcel of the estate concern also the title of the other estate which be the  property of the respondent and with respect to which the appellant bill be  dismiss and it will be extreme inconvenient and prejudicial to the respondent  to have all his deed continue in the hand of the court and to be deprive even  of a opportunity of inspection without that particular order of the court  whereas on the other hand the appellant can suffer no injury by these deed  continue in the respondent custody since the original settlement of be enrol  and the fine and recovery which make out her title be upon record and all the  subsequent settlement in which any of those land mention in the decree be  include derive no title to the appellant but on the contrary prove and verify  the respondent title against her that the account direct by the decree and the  other direction relate thereto can not any way concern the appellant since the  estate which she be decree to be entitle too videlicet Gortafeen and the house  in Limerick be not include in the recovery suffer by sir William Ingoldsby in  and therefore the old entail of those estate be still subsist and consequent  they can not be charge or affect with his debt or any since contract by the  respondent or his late wife and that the other direction of the decree in  favour of the appellant be improper without have other party before the court  nor do the appellant by her bill pray any decree for immediate possession or  set up a title to any of the estate but only in reversion after the death of  the respondent after hear counsel on this appeal and hear the judge present on  certain brown er p point of law to they proposedThese point do not appear upon  the journal but in a memorandum on the back of the print case it be say that  the follow question we re put to the judge videlicet whether the power of  revocation contain in the indenture of be execute extinguish or alter by the  indenture of July as to the land and premise in the county of Clare and if not  whether the write execute by mrs Elizabeth fowke in nature of a will be a good  execution of the say power and that the judge present answer that no  extinguishment or alteration of the power be make by the indenture of and that  the write execute by mrs fowke be a good execution of the say power it be  brown order and adjudge that in the direction contain in the decree for bring  in deed paper and write after the word city of Limerick these word shall be  insert and the land of Girley Derialicky and Derigyhee and that after the word  court and that these word shall be omit videlicet no person or person do have  inspection or copy of the say deed paper or write without the order of this  court and that instead thereof these word any of the party be at liberty to  inspect the same and take copy thereof or of such part thereof as they shall  think fit at their own expense shall be insert and it be further order that  such part of the say decree as relate to the account thereby direct shall be  reverse and that the same in all other respect not now vary shall be affirm  jour vol p