brown case richard Filkin and other appellant roger hill and another  respondent that may No issue ought to be direct to try a matter not full put  in issue in the cause and therefore where a bill be file to take advantage of  a forfeiture by marry without consent and a issue be direct to try whether the  party be a papist or not at the time of the marriage the order be reverse and  the plaintiff leave at liberty to amend his bill by put in issue in the cause  the matter intend to be try by the say issue decree of the chancery reverse in  part Ann Stevenson widow grandmother of the appellant Frances and of the  respondent John hill be seize in fee of a freehold estate in Lincolnshire of  about pound per and and possess of a personal estate make her will date the  that of may and after give a legacy of pound to her say grandson Payable at  his age of twentyone she give all her real and personal estate not specifical  devise to the appellant Eyre bush and Rawlins their heir executor and  administrator upon trust to sell and dispose of the same or so much thereof as  they or the survivor of they shall think most proper and convenient for the  payment of her debt legacy and funeral charge and after payment thereof and  subject thereto upon further trust to pay the residue thereof to her say  granddaughter Frances when she shall attain her age of twentyone year or shall  be marry with the consent and approbation of the appellant Eyre and bush but  if she die before such age or marriage with such consent as aforesaid then in  trust to pay the same to her say grandson John hill at his age of twentyone  and she appoint the appellant Eyre and bush executor in July follow the  testatrix die and the executor prove her will The appellant Frances be then  only thirteen year of age on the that of August the appellant Frances  intermarry with the appellant Richard Filkin by the consent of the appellant  Eyre and bush and previous to this marriage the husband enter into article  with the trustee for settle the trustestate upon himself for life then upon  the appellant Frances for life and then upon their issue in tail but this  marriage be at first celebrate accord to the usage of the church of Rome the  party in two day afterward marry again accord to the rite and ceremony of the  church of England and as it be allege have ever since continue in the worship  and communion of that church and no other in Michaelmas term the respondent  exhibit their bill in the court of chancery against the appellant pray on  brown the behalf of the plaintiff Roger that he may have the remainder of his  wife fortune pay he out of the testatrixs estate as she be the representative  of her husband who have promise to give his daughter pound but have only pay  pound in part of it and on the part of the other plaintiff John pray a account  of the real and personal estate of the testatrix devise to be sell for the  benefit of the defendant Frances she have accord to the term of the will  forfeit her interest therein by marry without the consent of the trustee Eyre  and bush allege that the first marriage be have without such consent and that  only the latter marriage be have after the consent obtain the defendant Filkin  and wife have answer this bill exhibit their cross bill against the trustee  and the plaintiff in the original cause pray a execution of the trust of the  will and for that purpose that a account may be take of the testatrixs  personal estate and the same apply towards discharge the real estate and that  so much of the real estate as shall not be sell may be settle accord to the  above marriagearticle on the that of November both these cause be hear before  the Lord chancellor Parker when it be refer to a master to take a account  whether all or what part of the plaintiff Roger wife portion be pay and what  remain due and what shall appear to be due thereof be to be pay he out of the  testatrixs estate with interest from the time it become due and it be further  order brown er p that the defendant Eyre and bush shall give security to be  approve of by the master for the payment of the pound legacy give to the  plaintiff John when it shall become Payable and as to the residue of the  testatrixs personal estate the court be of opinion that the defendant Frances  have do no act to forfeit it but as the title to the real estate be claim by  the plaintiff John as be next heir and a protestant and as the defendant  Frances have profess the popish religion be insist to be within the meaning of  the statute of and William III c and therefore incapable of take the court  order the plaintiff John and the defendant Filkin and wife to proceed to a  trial on the follow issue videlicet whether the defendant Frances be a person  profess the popish religion at the time the testatrix make her will and at the  time of her death and at the time of her marriage with the defendant Filkin  and further direction be reserve until after the trial from this decree the  defendant Filkin and wife and the executor appeal insist S Cowper W peer  William that there be not sufficient ground to send it to a master to inquire  whether any part of the respondent Roger wife portion be remain unpay it be in  proof in the cause that on the saint of January he state account with Francis  Stevenson his wife father and give he a receipt of that date in full of all  account reckon and demand and have ever since which be above sixteen year  brown acquiesce without make any demand that the appellant the executor ought  not to have be decree to give security for the pound legacy before any account  be take whether they have asset in their hand to answer the same and the  rather because the respondent John hill the legatee claim the land which as  well as the personal estate be by the will charge with the say legacy and that  none of the issue ought to have be direct because no other right or title to  the testatrixs real or personal estate be set up by the plead or put in issue  in the cause but the pretend forfeiture by the appellant Frances in marry  without the consent of the trustee a matter which have be full prove and to  which alone the evidence have be confine as be the only matter in issue  whereas the direct these issue to be try tend to defeat the appellant Richard  and his child who be purchaser of the real estate for a valuable consideration  upon a point not in issue or so much as mention in the plead to this it be  answer t Lutwyche c Talbot on the other side that the pretend state account be  neither mention in the appellant answer to the original bill nor in the cross  bill and that the respondent Roger have in his answer to such cross bill swear  that he never receive more than pound of the pound which be to be pay he nor  be there any proof in the cause of the actual payment of any more as to the  give security for the payment of the legacy the executor never pretend any  want of asset but on the contrary say by their answer that they be ready to  pay the legacy to the respondent John when he shall attain his age of  twentyone year after which submission there be no reason to direct any account  to be take of the testator asset and as to the issue it be say to appear both  by the admission in the answer of the appellant to the original bill and by  the deposition of their own witness that the appellant Frances be educate in  the popish religion but as it do not appear with sufficient certainty whether  she profess the popish religion or not at the several time of make the will  and at the death of the testatrix or at the appellant marriage nor consequent  whether she be a person capable of take under the will it be necessary that  those fact shall be ascertain before the appellant can be entitle to any  decree in their favour and that the issue do not tend to defeat the appellant  or their child of the real estate if they have any right to it and if they  have none the issue tend to do justice to the respondent John hill who be the  testatrixs heir at law a infant and a protestant but after hear counsel on  this appeal it be order and adjudge that so much of the decree as direct the  trial of the several issue therein mention shall be reverse and that the  respondent shall be at liberty to amend their bill in order to put in issue in  the cause the several matter intend to be try by the say issue and the  appellant be to be at liberty brown to put in a new answer brown er p thereto  and as to the several other matter complain of the decree be affirmed For the  subsequent history of this cause in which the statute of and William III  against popery receive determination see p wms Mod Eq can ab can can case in c  jour vol p