case William cowper Esq cousin and heir of William Cowper only son of the late  earl Cowper by his first wife and old son of Spencer Cowper who be uncle and  heir of the same William Cowper theodora cowper widow and administratrix of  Spencer Cowper Esq John cowper and ashley cowper his young son and martin  madan and Judith his wife the only daughter of the say Spencer Cowper  plaintiff William earl cowper son and heir of the late earl Cowper by the late  countess his wife thomas Woodford survive executor of the late earl sir  William Humphreys and Orlando Humphreys executor of mary booth survive  executor of Robert booth thomas Powell and William Powell executor of Samuel  Powell a trustee name in Mr booth will and also another of his executor  defendant Eq can ab pl pl the argument of sir Joseph Jekyll master of the roll  this case as it be very extraordinary so it be of a large compass and every  part require consideration I must therefore peer William necessary take up  some time in state observe and argue upon it for maintain the judgement that I  shall give Robert booth a freeman of London seize of a small real and possess  of a large personal estate have one only child name Judith who intermarry in  her father lifetime with William Cowper Esq afterward earl Cowper and have  issue by he only one son name William on the that of July Mr booth make his  will whereby after make provision for his wife in lieu of what she may claim  by the custom of London he take notice that he have before give his daughter  pound upon her marriage which he do not intend to be in full of her orphanage  part and therefore make a far provision for her in these word I do far give  and bequeathe pound unto Mr Samuel Powell upon this special trust and  confidence that he shall with all convenient speed lie out the pound in the  best manner he can in the purchase of land and tenement of inheritance to be  convey and settle to he upon the several use intent and purpose herein after  mention that be to say in trust for and to the use of my son and daughter  William Cowper Esq and Judith his wife for the term of their life and after  the decease of my daughter then to the child or child of her body hereafter to  be beget share and share alike and for want of such issue then to my grandson  William Cowper and his heir for ever he far by his will charge some annuity  upon a leasehold house he have in saint Helen London give several legacy and  devise the small real estate he have to his cousin Thomas Heirdson for life  peer William with remainder over and then give all the residue of his estate  not before dispose of to his daughter desire that what it shall amount to over  and above the pound may be lie out with the pound to the same end and for the  same use as be in that the above recite clause express and make the say Mr  Powell his wife mary booth and his daughter Judith Cowper his executor on the  November Mr booth die and the three executor join in the probate of the will  but Mr Cowper in right of his wife act as executor and possess the personal  estate on the that of June my Lord Cowper then William Cowper Esq execute a  declaration of trust whereby after recite the will and that he in right of his  wife the heir and residuary legatee of Mr booth have receive of Mr booth  personal estate include a mortgage then unpay on land in Gloucestershire asset  above all debt and legacy sufficient to answer the pound and that he have late  purchase a estate at Standon in Hertfordshire for pound he declare that estate  be buy by he with the money arise out of Mr booth personal estate and be to be  take as part of the pound and that he have take a conveyance to himself to the  intent that as soon as the whole purchase for the say pound can be complete he  and his heir shall settle and convey the same accord to the true intent of the  will or as near as may be at the time of such settlement and that in the mean  time the rend and profit shall be receive by such person respective as will in  right and justice be entitle thereto in case such conveyance be make peer  William er p on the that of July a declaration of trust of three give of other  land purchase by he wherein take notice that he have deposit the former peer  William declaration or Powell he declare the trust of the three give of those  land in the same manner as he have declare that of the other land and have  sell part of the other land he declare that the three give of those land with  the land unsold of the first purchase do exceed the value of pound as they  real do this declaration be also deposit with Mr Powell and both be find among  his paper as appear by the answer of his executor in or William Cowper the son  die a infant of tender year and in April die Judith the mother on the that of  November the late earl Cowper make his will and after subject his real and  personal estate to diverse charge and to debt and legacy he devise his real  estate to the defendant the present earl for life remainder to his executor as  trustee to preserve contingent remainder remainder to the defendant first and  other son in tail male successive and after several like remainder to Spencer  Cowper his young son and every other son to be beget for life and their first  and every other son successive in tail male he limit a remainder to his  brother Spencer Cowper for life remainder to the plaintiff William John and  Ashley Cowper and every afterborn son of his brother Spencer Cowper for life  and to their first and every other son successive in tail male with proper  limitation to trustee to preserve contingent remainder remainder to the right  heir of the earl by a codicil of the same date with the will he bequeathe the  residue of his personal estate to his executor in trust to be lie out in the  purchase of land to be settle to the same use as he before have devise his  real estate and so as they and all the land he be then seize of may go with  peer William the honour and make his brother Spencer Cowper and the defendant  Woodford his executor on the that of October Lord Cowper die soon after which  both the executor prove the will and on the that of November follow they file  their bill against the present earl Cowper the late countess lady Sarah lady  whether and Spencer Cowper the late earl young child and against William John  and Ashley Cowper three of the plaintiff in this cause in which my lord will  be recite verbatim be allege that the plaintiff be unwilling to meddle with  any of the estate but what be of absolute necessity for the funeral and other  immediate occasion but it bring necessary to take some money for those purpose  the plaintiff Spencer Cowper on the that of October in the presence of Mr  Woodford and Mr Sydenham the late earl steward take out of a escritoir in my  lord house in George street pound in bankbill of the disposition whereof the  bill give a account and that since videlicet on the that of the same October  the plaintiff go to Colnegreen my lord house in the country and in Mr Sydenham  S presence open a bureau of the testator take thereout pound S d which be pay  to the countess and that all the rest of his personal estate remain in the  same plight and condition as it be at the earl death that it be necessary to  prove the will per testes and the plaintiff be unwilling to execute the trust  thereof without the direction of this court the bill pray that the defendant  may set out their claim on the real and personal estate of the late earl that  the legatee may be pay and a allowance settle for the maintenance of the  present earl and my lord other child that the surplus rend and profit of the  whole estate may be dispose of for the earl benefit a receiver appoint the  plaintiff account for the peer William personal estate and be indemnified the  will and codicil prove and establish and the trust thereof complete execute on  the saint of December the earl then a infant answer this bill and insist on  his be heir at law and entitle to the late earl real estate in case the will  be not well prove on the that of march follow William John and Ashley Cowper  answer and admit the will and codicil hope the trust shall be full execute and  that the remainder limit to they will be decree on the same day the earl by  his next friend file a crossbill against Mr Spencer Cowper and Mr Woodford and  against his brother and sister pray that the defendant may set forth their  several claim and demand of what kind or nature soever upon the real and  personal estate of the late earl and may account for they and that if the will  be duly execute a execution of the trust may be decree accord thereto Mr  Spencer Cowper put in his answer the day the bill be file and thereby give the  same account as by the original bill of the take pound S halfd peer William er  p out of a bureau at Colnegreen on the that of October in the presence of Mr  Woodford and Mr Sydenham and that beside that and pound S take out of the  house in georgestreet and some other particular set forth in his answer he  have never receive any part of the personal estate or meddle therewith that he  have cause a iron chest to be open in the presence of Mr Woodford and Mr  Sydenham in which be security money and other thing which chest be lock again  with three key whereof each of they keep one that the chest be deposit with he  and remain in the same condition ready to be deliver as the court shall direct  that he believe there may be some few thing in peer William a escritoir or  chest at Colnegreen whereof lie have the key but know not the particular and  desire it may be bring up and deliver as the court shall direct he not intend  to intermeddle therewith that he have no far or otherwise concern himself with  the personal estate have determine to act as little as possible without the  direction of the court that he can not set out a account of the late earl real  estate but refer to Mr Sydenham for that purpose and say he be very desirous  the trust of the will shall be full execute a account take of the real and  personal estate and the surplus lie out in a purchase as the will direct after  funeral charge debt legacy and all just demand thereout deduct and pay in  order to which he set out Mr booth will and state his claim under it in the  same manner as I have before mention and as be do by the present bill insist  that his title to the benefit of the trust in Mr booth will accrue from the  death of Judith the late earl first wife that he believe the late earl possess  the real and personal estate of Mr booth and that the trust have not be full  execute and therefore he insist that he be entitle to the real estate of Mr  booth undevised and to the sum of pound and interest or to any estate purchase  therewith and to a account of the surplus of Mr booth personal estate with  interest from the death of the say Judith but that he conceive it may be  proper by a bill to be prefer by he against Mr booth survive executor and  other proper party to establish his demand though he find it necessary to  disclose it by way of answer to this bill which be to discover what demand the  defendant have on the late earl estate and therefore crave leave to reserve to  himself the liberty of proceed to establish his peer William demand as he  shall be advice and save to himself such be demand as far as the same shall  appear just and reasonable he submit to the execution of the trust of my Lord  cowpers will Mr Woodford likewise put in his answer and say he come to  Colnegreen the that of October the Sunday after the earl death and with the  concurrence of the countess Mr Cowper the present earl and lady Sarah settle  and agree on the manner and charge of the funeral and take no other notice of  what pass there at that time that on the that of the same month he attend Mr  Spencer Cowper his coexecutor to georgestreet where find several paper write  letter and account many of which be cursory pass over by they in the presence  of Mr Sydenham some few principal concern the testator personal and of no  concern or value to his estate be as he believe take away by Mr Cowper and in  all other respect give the same account of this transaction in georgestreet as  be give in the original bill and in Mr cowpers answer say that the iron chest  be remove to Mr cowpers chamber that among other thing at the house at  Colognegreen my Lord have a bureau or cabinet in which be as be believe pound  S halfd in money which be on or about the that of October take from thence be  deliver to r Sydenham and by he as he believe pay on account to the countess  the day before either of these answer put in Mr Spencer Cowper file a bill  against the present earl Mr Woodford and the survive executor of Mr booth and  other to establish his demand in which Mr booth will and the two declaration  of trust be set out verbatim and his demand by this bill be the same as by his  answer peer William in may the present earl be serve with the Lord chancellor  letter and appear but be never call upon for a answer and none of the other  defendant be serve nor any other proceed have upon this bill in the other two  cause replication be file to all the answer and on the that day of July both  cause be hear together when the late earl will and codicil be declare to be  well prove and decree to be perform to which end a account of the personal and  of the rend and profit of the real estate be direct and the master to take a  account of the testator debt and legacy who the creditor shall attend to make  out their debt that the surplus of the personal estate shall be lie out in  purchase accord peer William er p to the earl will and the surplus profit of  the real estate improve for the present earl benefit in pursuance of this  decree on the that of January the master have be attend by solicitor for the  plaintiff and defendant make a general report of the personal estate which  then stand in the name of the late earl or of his executor or which have be  receive by Mr Sydenham who before the hear have by order of the court be  appoint receiver of the rend and profit of the real and of the produce of the  personal estate in which report the leasehold estate at saint Helen and the  rend of it due at the earl death be account for as personal estate as be also  the arrear of rend of the estate in Hertfordshire concern which the trust have  be declare by the earl and also a bind and note enter into by Mr booth be  mention as outstanding debt due to the earl and as part of his personal estate  peer William on the that of July the master have be attend by solicitor for  the plaintiff and defendant as also by the receiver make another report of his  have pass the receiver account of the rend and profit of the real and of the  interest and produce of the personal estate from the earl death to Michaelmas  these account comprise the rend of the estate in Westmoreland of the house in  London and of the estate in Hertfordshire and also the interest of the save of  the late earl estate which have be from time to time invest in security for  the now earl benefit accord to the decree on the that of April the master make  another report of his have pass the receiver account till Michaelmas and the  succeed account after Mr Spencer cowpers death be pass in the same manner till  the resend earl come to age indeed none of the report be confirm nor be it  usual to confirm report of receiver account Shewell v Jones S S as all except  the first be and as to that though it be not confirm in common form yet the  follow order obtain at the instance of Mr Cowper and Mr Woodford be I conceive  a implicit confirmation of it for on the that of November a order be make on  their motion that several sum part of the earl estate then out upon security  and expect to be pay in shall be place out in Southsea annuity in their name  and on the d of June there be a order upon their petition to sell the stock of  which the earl personal estate then consist and lie out the money arise from  such sale in purchase on the that of march they prefer another petition recite  the decree the report of the receiver peer William account and that they be  desirous to improve the save of the now earl estate and have agree to place  out pound on a mortgage which sum be to be advance out of the clear produce of  the real and personal estate of the earl that the receiver have with their  approbation pay pound in part and will soon have pound more in hand and that  the decree have only provide for place out the surplus profit of the real  estate they apprehend it necessary to have a order for place out and improve  the clear produce of the personal estate in the same manner they therefore  pray that the receiver may pay the pound and that the mortgage may be make to  they in trust for the earl and such far sum as from time to time shall be save  for the earl out of the personal as well as real estate be place out at  interest and improve for the benefit of the earl in their name on the that of  march this petition be hear in the presence of counsel for the petitioner and  the earl when it be refer to the master to see if the security propose be a  good one and if so the receiver be to pay the pound and the mortgage to be  make to the petitioner in trust for the earl and the future save of the  personal estate be order to be improve for the earl benefit in their name this  order have be thus execute videlicet on the that of July the master have be  attend by solicitor for the plaintiff and defendant certify his approbation of  the title and security and on the that of November approve the mortgage deed  make to the plaintiff by the description of trustee on behalf of the earl the  money be pay and the mortgage deed execute by Mr Woodford only after Mr  cowpers death and in pursuance of a order for that peer William purpose this  mortgage have be assign to the present earl Cowper on his come to age during  all these proceed Mr Cowper never make one single step towards prove his claim  or demand or towards come in as a creditor under this decree but suffer the  rend of all these estate now claim to be account for as my Lord cowpers and  soon after videlicet on the that of December die peer William er p the  plaintiff William be his old son and heir and as such be heir at law of  William Cowper the son of my Lord Cowper by his first wife the plaintiff  Theodora Cowper be Mr Spencer cowpers widow and administratrix and the  plaintiff John and Ashley Cowper and Judith madan be his young child who have  bring this bill different to move the same with Mr Spencer cowpers to have a  account of Mr booth personal estate not invest in purchase of the rend and  profit of the estate in Hertfordshire and Westmoreland and of the house in  London to have a conveyance to the plaintiff William Cowper of the estate in  Hertfordshire and Westmoreland and a assignment to he of the term in the house  in London the defendant all answer but none of they be concern in interest  except the defendant the present earl the estate in Westmoreland be only a  mortgage and the house in London a leasehold for year they be therefore both  part of the personal estate of Mr booth and to be govern by his will the rend  and profit thereof be receive by my Lord Cowper during his life and after his  death peer William bring into the receiver account as part of his lordship  estate now as to any account of the personal estate of Mr booth receive by my  Lord Cowper and not invest in purchase or of the rend and profit of the  Hertfordshire and London estate receive by his lordship or of those receive  after his death and bring into the account take in this court pursuant to the  decree before mention I be of opinion that the bill ought to be dismiss and as  to all the personal estate of Mr booth possess by my Lord Cowper and no part  whereof be possess by Mr booth or Mr Powell the bill must be likewise dismiss  as against their representative this will be a dismission of the whole bill as  to all the plaintiff except Mr William Cowper and even with respect to he as  he be joint concern with the other plaintiff in the personal estate of Mr  Spencer Cowper saint as to any account of the personal estate of Mr booth  receive by my Lord Cowper and not invest in purchase or as to the rend and  profit of the Hertfordshire Westmoreland and London estate receive by my Lord  the plaintiff claim as representative and next of kin of Mr Cowper and if he  be entitle then be he a creditor of my Lord Cowper and ought to have come in  upon the foot of the decree make in the cause before mention my Lord by his  will have charge all his estate real and personal with the payment of his debt  and by the decree Mr Spencer Cowper as well as his coexecutor Mr Woodford be  to account for the personal and the rend and profit of the real estate the  creditor be to come in and prove their peer William debt and the surplus only  be to be lie out in purchase pursuant to his lordship will Mr Spencer Cowper  therefore may have crave a allowance in the account of his demand or if not  may have come in as a creditor by the express provision of the decree and one  way or other I conceive he ought to have come in for he have disclose his  demand by his answer to the cross bill be party to the decree and to the  account take pursuant thereto and in such case I declare I shall always be of  opinion that a executor or trustee ought not to lie by and put the estate with  which he be entrust to the expense of a new suit to obtain satisfaction for a  demand which he may have have in the course of the former proceed this be not  act agreeable to his trust dly as to the account of the rend and profit of the  estate receive after the death of my Lord Cowper and bring into the account  before mention Mr Spencer Cowper be party to that account and bind by it and  the plaintiff who stand in his place can avoid that bar by a original bill no  nor by a bill to establish it though he do not think fit to prosecute it so  that as to this account likewise there must be a dismission as be final bar  the great question then in this case concern the Hertfordshire estate  principal which the sole plaintiff now remain Mr William Cowper claim as  cousin and heir of William Cowper the late earl son by his first wife with  regard to that the declaration of trust execute by my Lord Cowper take notice  of Mr booth will and declare peer William these land be purchase with pound be  money arise out of Mr booth personal estate and be to be convey and settle to  the use of Mr booth will and in the mean time that the rend and profit ought  to be receive by the person entitle as if such settlement have be make these  declaration be relative to the will of Mr booth if Mr Spencer Cowper as uncle  peer William er p and heir of William Cowper become entitle by or under that  will it be the same as if the trust have be express declare for he and then  undoubted he have a equitable estate vest in he which have descend to the  plaintiff and so be his title indeed it have be object that although Mr  Spencer Cowper be heir to his nephew William yet he be not next of kin and if  the pound have remain in money his lordship will have have it and after he the  present earl accord to his father will but this objection be of no weight for  have the pound remain in specie it must have be consider as land and have be  govern by Mr booth will it be impossible for the father to be heir immediate  to the son nay the law say the land shall rather escheat for which reason it  must have descend to Mr Spencer Cowper else it can not have descend at all as  to the hardship of set up this right in respect to the person against who the  suit be bring I own and can forbear declare that be I to consider the matter  not as sit in judicature but take in all manner of consideration such as  honour gratitude private conscience c I must think this claim shall never have  be make the defendant be son and heir of ray Lord Cowper in consequence of who  peer William marriage with his first wife the subject matter of the plaintiff  as well as his father claim have arise their obligation to my Lord Cowper lie  upon they in his lifetime can not but be very great and his kindness continue  to the laSt for by his will they and their issue be put into the entail of the  estate to go along with the honour which by his patent be limit to they the  defendant now sustain that honour and every one will wish the whole estate to  go along with it beside as my Lord hale say in the case of Collingwood and  pace vent the brother of the half blood be near than the uncle and be  therefore prefer in the administration for the uncle on the part of the father  have no more blood of the mother than the brother of the second venture and he  have the immediate blood of the father which the uncle have not the uncle be  force to go up to the grandfather and meet the blood of the nephew in he so  that it be impossible to find out a reason in nature for prefer the uncle to  the half brother indeed he offer a legal reason for ib which be this videlicet  that our law agree with the canon law make brother and brother but one degree  and uncle and nephew two degree and thereby the law give a mediate descent to  the uncle mediant patre but the descent to the brother must be immediate if at  all and my Lord hale hold that the half blood impede it but now let we examine  this our law take the computation of degree of kindred from the canon law  which by the way shorten the degree or distance of relation in order to  increase the number of dispensation from the court of Rome make brother and  brother but one degree whereas the civil law in its computation go up to the  common parent or father and down again to the mask proposita and so make  brother and brother two degree which be certain right for there be no peer  William consanguinity among collateral but by meeting of the blood in some  common person or parent but now take our law to be right why shall the half  blood impede the descent to the heir on the part of the father why shall the  blood of a different mother hinder the descent to the heir of the father  especial when it be consider that neither of the competitor bath any of the  mother blood as have be observe these seem consideration of weight but still  sit in a legal judicature I must judge of the plaintiff claim as the law be  and not as I will have it the court must judge accord to the state rule of law  and equity and if the plaintiff claim be not bar nothing be plain than his  title the law if it have be a legal title will undoubted have cast the descent  upon his father who by the declaration of trust have a equitable title now  equitable and legal estate be descendible in the same course use before the h  be equitable estate but yet the commonlaw direct their descent particular  there be a possession brother of a use vide ante bank v Sutton as well as of a  legal inheritance   b   which cite the yearbook of the Edward b so that the  brother of the halfblood be in that case exclude from the inheritance of a  equitable as well as of a legal estate the Lord coke see the preface to his  second report towards the end somewhere set a value upon the law of England in  relation to descent on account of the certainty of they but consider how many  trust be now adais create in land and how many question have arise concern use  whether execute or not I peer William er p think we shall have little reason  to boast of the certainty of our law in the rule of descent if legal estate be  govern by one rule and equitable by peer William another beside as my Lord  Cowper think proper to take the conveyance of the land in question to himself  let we now suppose he have lodge the legal estate in another person can the  present earl have have the conveyance of the inheritance from the trustee  plain he can not if the plaintiff as heir and not the defendant as brother of  the half blood must under such circumstance have be entitle to a conveyance  sure my Lord cowpers vest the legal estate in himself can make do alteration  in the case the next thing to be consider be that suppose these objection not  to stand in the plaintiff way as plain they do not then the question will be  whether any thing else be sufficient to bar his demand with regard to the  proof of my Lord cowpers keep his account of these estate joint and in the  same manner with his other estate of his let lease of they have they measure  and map and of Mr Spencer cowpers say that the late earl have declare to he  just b before his death he do not owe above pound and that there be not a more  punctual and just man in the world than he these proof to I seem not material  for certain my Lord Cowper think the land in question his own during his life  his enjoyment of they be a sufficient evidence of that and it do not appear Mr  Cowper know of this claim when he say these thing the objection make against  the plaintiff claim such I mean as seem of any weight be these first length of  time since the title accrue which be from the death of Lord cowpers first wife  in reversion if not peer William in possession second the improbability of my  Lord cowpers suffer his brother title to stand out when he may have obtain a  release or conveyance of it three the tender or slight manner in which the  plaintiff father mention his claim in his answer to the defendant bill and to  Mr Sydenham the late earl steward a little before his death fourthly his not  prosecute his bill to make good that claim but on the contrary suffer a  procedure whereto he be party to go on and the rend of the land in question to  be account for as part of the late earl estate five his not come in as a  creditor for the residuum of Mr booth personal estate possess by the late earl  though as such he be invite or direct by the decree but above all six his  possess himself of the late earl paper write and book of account after his  death without the participation of his coexecutor Mr Woodford burn and destroy  such as he think fit these thing most certain give a unfavourable aspect to  the plaintiff claim however go not so far as to bar it the case be not of a  accidental loss or suppression of a deed two thing be necessary for the  defendant to prove saint that Mr Spencer Cowper do execute some deed or write  whereby the estate be convey or release to the earl dly that such deed be  destroy or suppress by he it must be grant that the plaintiff father have a  equitable estate if he be divest of that it must be by some deed or write  sufficient for that purpose this be suppose by the defendant make the  plaintiff father burn or destroy paper or write a part of his defence and peer  William therefore a presumption of satisfaction make by my Lord Cowper for  this claim be not as be say by some of the defendant counsel of itself  sufficient but there must have be some deed or write to convey or release the  estate or that will operate as such now it do not sufficient appear nor can it  be infer or presume that there be such a deed or write or that it be destroy  or suppress that Mr Cowper as to the first objection the length of time since  the title accrue which be upon the death of my Lord cowpers wife in reversion  if not in possession Mr Spencer Cowper in his bill and the plaintiff in they  suppose the title commence then in possession and demand a account accord but  the plaintiff at the hear abridge their demand pray a account only from the  death of my Lord Cowper which in this case ought to be insert in the decretal  order and will bind the plaintiff who particular Mr William Cowper can say  hereafter that their father title accrue in possession before the death of my  Lord Cowper but the defendant counsel in order to lengthen the laches of the  plaintiff father may by way of argument still insist as they have hitherto do  that it do accrue in possession on the death of my lord first wife the first  limitation be to William Cowper and Judith his wife for the term of their  natural peer William er p life this undoubted will carry a estate for both  their life during the life of the survivor and accord to Brudenells case Rep  which have be always take for law unless the next word and after the decease  of Judith then to the child or child restrain and make they carry only a  estate during the joint life of my Lord then Mr Cowper and his lady and indeed  if the latter word be not so take they must be total reject and the subsequent  limitation peer William make to take place not upon the death of mrs Cowper  accord to the will but to expect till the death of both whereas on the  contrary if they be so take they may receive a construction and be understand  to vest the remainder in mrs Cowper upon the determination of the former  estate by the death of her husband and I be of opinion that this be the true  way of construe Mr booth will it be certain that the literal and grammatical  construction of a limitation to a and b for the term of their life be for the  term of both their life for their life be plural must comprehend both and join  they together which be the legal construction too where there be no particular  reason to vary from it for so it be hold in auditor curl case Rep b that a  office grant to two pro boundary life a people of India determine by the death  of one indeed in a limitation of land it be otherwise and the reason of the  difference be this a jointtenancy of land may be sever and if it be not the  interest must consequent survive which be otherwise in a office and that it be  so in land be not from the import of the word of that limitation but from the  institution or operation of law for if the word import a survivorship it will  be so in both case beside upon a severance of the jointtenancy in land the  estate do not continue during the life of each donee but determine upon the  death of one for b be moiety and of the other for his accord to dyer a and I  Inst a which show that the estate do not necessary survive or continue for the  whole as long as one of they life this different operation of the same word in  the case put show the intent of the donor and consequent determine the effect  of it so in our case the word subsequent to the limitation videlicet and after  the decease of peer William my daughter to the child or child c show the  testator intent and must determine the effect of the limitation especial in a  will where the intent overrule the legal import of the word be they never so  express and determinate I be sensible there be a diversity of opinion among  the learned judge of the present time whether the legal operation of word in a  will or the intent of the testator shall govern for my part I shall always  contend for the intention where it be plain and I think the strong authority  be on that side for if the intention be sometime to govern as it be admit it  must and not always give way to the legal construction and yet at other time  shall not govern there will then be no rule to judge by nor will any lawyer  know how to advice his client a mischief which judge ought to prevent thus  much I have think proper to say upon the question whether the remainder come  into possession upon the death of mrs Cowper or not till the death of her  husband afterward Lord Cowper because it be labour so much at the bar and I do  not care to pass it over superficial but after all I think it not very  material if Mr Spencer Cowper have any knowledge of his title before my lord  death it may have be material by lengthen the time of his laches but there be  no proof of that and Mr Woodford by his answer say that the that of October  five day after the earl death be the first time Mr Cowper mention his demand  under Mr booth will which Mr Woodford say he never hear of before nor be there  ground to believe that Mr Cowper know any thing of it till after my lord death  he have no reason to think himself concern in Mr booth estate be peer William  a stranger to he in blood beside if it have occur to he that he be heir to Mr  booth grandson yet Mr booth be a citizen of London have prefer his daughter in  marriage his estate almost all personal how then can Mr Cowper divine he will  order it to be convert into land and afterward dispose of it in such a manner  as to carry it from his own heir and give it he as for the declaration of  trust wherein Mr booth will be recite how shall Mr Cowper know of they the be  deposit by my Lord Cowper with Mr Powell the executor and find after his death  among his paper as his executor say by their answer which be not contradict by  proof beside one of these declaration take notice that the other be deposit  with Mr Powell and there be the same reason to deposit the one as the other no  doubt they be both so and in Mr powell custody at the time of his death so  that there be no reason to suppose Mr Spencer Cowper know any thing of his  title till after my lord death peer William er p but then they object the  improbability of my Lord cowpers suffer his title to stand out when he may  have obtain a release or conveyance of it as to this I be in the dark I mean  with respect to my lord knowledge of Mr cowpers title one will think he have  consider the limitation in the will and consequent to who the estate will go  after his death but that his lordship be positive in his opinion upon  limitation so ambiguous do not appear and be the more doubtful as in neither  of the declaration of trust execute by his lordship do he take upon he to  determine how the estate be to go by virtue of the limitation all that he say  be that it shall go accord to the true intent of Mr booth will what power or  peer William influence my Lord Cowper have do not judicial appear if he do  obtain a release or conveyance from Mr Cowper it must be either before lie  have issue by his second lady or after now before my Lord have such issue Mr  Cowper be both heir to my Lord find to his son and therefore my Lord in case  his son by his first marriage shall die without issue may think that the  estate will go to his brother and that he have no reason to endeavour to  prevent it it be prove my lord son die in or my lord first lady not till April  and till issue bear of the second marriage there be no foundation to presume  there be any such release or conveyance and after he have issue by his second  lady he may think his brother will not do so hard a thing as to call for the  legal estate and separate it from the honour a honour entail upon himself and  his issue beside there be some evidence that this title be stand out on my  lord death his lordship deposit these declaration of trust with Mr Powell to  be deliver to such as shall have a right to the estate and if he have get in  his brother title most probable he will have call for the declaration and not  have leave they in the hand of Mr booth executor when he himself be sole owner  of the estate d object the slight and tender manner in which the plaintiff  father Mr Spencer Cowper mention his claim in his answer to the defendant bill  and to Mr Sydenham the late earl steward a little before his death Mr Cowper  in his answer say he be desirous the trust of the late earl will shall be  execute and insist upon his title to the benefit of the trust therein contain  but peer William say he conceive it may be proper by a bill to establish his  demand though he find it necessary to disclose it by way of answer to that  bill and pray to reserve to himself the liberty of establish his demand as he  shall be advice and save it to himself so far as the same shall appear just  and reasonable he submit to the execution of the trust of my Lord cowpers will  Mr Sydenham examine for the defendant say that a little before Mr cowpers  death he take occasion to mention this demand of his upon the earl estate and  tell he he hope he will make a end of it in the easy manner he can upon which  he seem to make very slight of it and say there be a small piece of meadow  near his canal in a field call Clunkfield which lie convenient for he and if  the present earl will let he have this field he shall make other matter  extreme easy it seem plain Mr Spencer cowpers answer to the bill express a  backwardness in set up this title and a tenderness in make the claim and by  what he say to Mr Sydenham he slight and make little account of it which  claimant be not apt to do yet there be something particular in this case which  take away the force of the objection for though the title upon which this  claim be find be clear and plain to those that understand the law and common  rule of equity yet in the common opinion of mankind it will be think in itself  and in the circumstance attend it very hard and unreasonable and the set it up  severe censure beside it appear by Mr sydenham deposition that this claim peer  William be not set up in order to carry thing to the utmost extent but to  obtain some acknowledgement for a release of the demand and indeed it be like  to have have that effect for Mr Sydenham say far in his deposition that the  defendant after he come to age and before the fill of the present bill offer  the now plaintiff to comply with the present and to convey the field upon have  a release proposal his father have make the four objection be that of Mr  Spencer cowpers not prosecute his bill bring to make good his claim but on the  contrary suffer the proceed I have mention and the rend of the land claim by  he to be account for as part of the late earl estate and so far as that  proceed extend it have prove a bar but far than that peer William er p it can  be carry for it can operate as a bar to the realty or as a extinguishment of  the right to the land it be object that if Mr Spencer Cowper have think his  claim to the land have subsist he will not have suffer a bar to a account of  the rend and profit to have run upon he to this it may be answer that possible  Mr Cowper may think the pendency of his bill to establish his claim will  prevent that bar but if he do not think so yet he may be Willing to suffer  himself to be bar as to the mesne profit or may intend no more by set up his  claim than to obtain some acknowledgement for the release of it especial as he  must know that the set it up will Appius ear hard and can not escape censure  which seem also a answer to the next objection to the plaintiff claim Mr  Spencer cowpers not come in as a creditor for the residuum of Mr booth  personal estate possess by the late earl though he be as such invite and  direct by the decree beside he may peer William not think it proper or worth  his while to enter into so stale a account as that of Mr booth estate who die  almost forty year before and now we come to the last objection and which be  the strong videlicet Mr Spencer cowpers possess himself of the late earl paper  and book of account after his death without the participation of Mr Woodford  his coexecutor burn and destroy such of they as he think fit this be a fact of  such a nature that every circumstance relate to it ought to be through weigh  in order to see whether there be any foundation in precedent reason or justice  for the presumption which the defendant counsel will build upon it and this  not mere with regard to the present cause but as it concern property in  general and public justice the evidence of Mr cowpers possess himself of all  the earl paper those at Colnegreen his house in the country and those at his  house in town in georgestreet be very plain the sum or substance of it be this  saint as to the paper and book of account in the country notwithstanding there  be some variety in the evidence as to the circumstantial part yet it plain  appear that on the that of October the day my Lord die Mr Spencer Cowper be in  the house at Colnegreen and none be present but Mr Sydenham he open a bureau  take out paper cancel some and afterward the same day Mr Sydenham find he  alone with a great quantity of paper and write lie before he on the floor tear  and cancel which he tell Mr Sydenham he intend to put out of the way and will  look over all the earl paper peer William to preserve such as he think proper  and destroy the rest on the that of October Mr Woodford by his appointment be  come down to Colnegreen and before he come Mr Cowper order one of my lord  servant to carry down a large basket of paper and write into the kitchen to be  burn and accord they be burn in the kitchenfire in the presence of several of  the common servant one of which say he see on the top of the basket two book  cover with white vellum or parchment such as my Lord use to keep his account  in dly as to the paper or write in town it appear that on the that of the same  month Mr Cowper Mr Woodford and Mr Sydenham come to my lord house in  georgestreet and in a closet below stair there be a bureau which by a key Mr  Cowper have in his pocket be open and in it be several write and paper some of  which Mr Cowper only look over and take away with he say they concern the earl  per the key and that they curiosity which they not his estate and lock up the  closet keep open a iron chest put in some jewel and and take out some bankbill  which be deliver to Mr Sydenham and then three lock be put upon the chest and  each have a key a day or two after this Mr Cowper tell Mr Sydenham he will  have all the earl paper and write in town bring to his chamber that he may  peruse they and put out of the way such as be not proper to be keep and accord  without Mr woodfords knowledge he send the key of the closet to Mr Sydenham  who cause the paper to be take out of the bureau and put in box which box  together with the iron chest be send to Mr cowpers chamber who several time  after mention peer William to Mr Sydenham that he have look into the late earl  paper and destroy such as be not fit to be see it appear likewise that  application be make to Mr Cowper on behalf of the countess desire that she or  some person peer William er p for her may be present at the open of the earl  paper which he decline say that they be private paper not fit to be see upon  this evidence and the know maxim in all respects prsumuntur in odium spoliator  the defendant counsel will have two presumption to arise first that Mr Spencer  Cowper have execute some deed or write to the late earl whereby his title to  the land in question be convey or release and dly that such deed or write be  by he burn or destroy now before I consider the evidence I must premise that  this be go far than any court either of law or equity have go in any case of  suppress or destroy evidence that I know of in that of the king and the  countess of Arundel hob see this case state with some other of the like nature  in the case of Dalston and coatsworth vol my Lord Hobart say the suit that be  the bill affirm the king title to be by the attainder of Francis Dacres who  the bill say be seize of a estatetail but the deed whereby the estate be come  to he be not extant but very vehement suspect to have be suppress and withhold  by some under who the defendant claim and therefore the decree run that the  king and his heir and the Lord Hunsdon his farmer shall hold and enjoy the  land until the defendant shall produce the deed and the court thereupon take  far consideration and order this be a very solemn resolution and with the  great deliberation for the peer William then Lord chancellor Lord Ellesmere be  assist with the two chief justice and the master of the roll by the print  report the deed be suppose but not say to be prove I have have the register  book search the decree be enter Trinity James lib b fol b and draw up thus  that the king his heir and his farmer shall hold and enjoy until the defendant  produce the deed therein particular mention and prove once to have be extant  and duly execute here we see the existence of the deed be fundamental to the  decree and the proof of they full and express assert by the court in frame the  decree in the case of Garteside and Ratcliff Chan case the deed burn or cancel  be prove in that of hunt and matthews vern the deed suppress be prove and in  that of Wardour and Beresford not right report vern in the register book of  Paschce page there be this entry the Lord chancellor on read and examine  witness viva voice declare that the paper there call win account be through  the carelessness of the defendant embezzle and therefore confirm the master  report which have not make the defendant any allowance for diet c by reason of  such embezzlement here the proof of the embezzlement of the paper prove there  be such paper the case of the countess of Plymouth and Bladen report vern  appear by the register book to be thus the defendant be the plaintiff stewart  and the bill be bring for a account the defendant plead that the plaintiff  have imprison he and upon promise of his liberty bad get a trunk in which be  all his voucher insist that though he keep the key yet it be easy to be open  and that it be to be presume it have be so and be impossible for he to prove  what the plaintiff have take out or to account without his voucher this peer  William plea be argue and order to stand for a answer afterward by a  interlocutory order the trunk be direct to be deliver to the usher of the  court and upon hear of the cause the then lord commissioner decree the  defendant to account and order the trunk to be bring before the master who be  to open it in the presence of both party and they to have copy of the paper  find in it as they shall think fit in this case the court will not presume  material paper or even a suppression of any such though it shall seem that the  trunk be get by the plaintiff in a very unwarrantable manner and only take the  best care they can that the paper whatever they be shall be produce there have  be no case at law and these be all the material one that I have hear cite in  equity but though there may have be other the name of which I can at present  recollect yet do I not remember or believe there have be any one where there  be not some proof make of the existence of the deed or write suppose to be  suppress or destroy so saltern v Melhuish Amb now I shall consider the manner  and circumstance of Mr cowpers possess himself of and burn and destroy these  paper write or book of account in order to see whether they afford any  sufficient presumption that there be such a deed or write and that Mr Cowper  do burn or destroy it peer William er p as to the transaction at the late earl  house in the country Mr Sydenham be present when Mr Cowper first open the  bureau take out paper and cancel some of they and afterward Mr Sydenham be  admit into the room when Mr Cowper have a great quantity of paper lie by he  peer William tear and cancel which he frank tell Mr Sydenham he intend to put  out of the way and will look over all the earl paper preserve such as he think  proper and destroy the rest this be on the that of October on the that before  Mr Woodford come down he order one of my lord servant to carry down a large  basket full of paper write and book of account into the kitchen to be burn and  accord they be burn Mr Sydenham say by Mr Cowper himself in a very public  manner in the kitchenfire and in the presence of several of the common servant  which be to be presume be not keep secret from my lady Cowper for Mr Cowper  refuse to let any person for her be present at the open of the earl paper  though she desire it say they be private paper be not fit to be see which be  avow to her his design to destroy some paper or at least to conceal they but  then it be ask how come Mr Cowper to open the late earl bureau in the country  search his paper cancel and burn such as he think fit without the knowledge or  participation of Mr Woodford and this too before the come of Mr Woodford who  be to come there by his appointment now although each executor have the whole  office in he have authority to do what Mr Cowper do yet I think he ought to  have stay for Mr Woodford the other executor but then it do not appear that Mr  Woodford when he come take upon he to act in any manner or so much as to  inquire concern the late earl paper or book of account or any of his affair  and indeed he may reasonable think Mr Cowper who he find in the house have  take some peer William care or other about my lord affair probable he may  think Mr Cowper be my lord brother and one who have no interest in his  lordship estate that he know of at that time be more proper than himself to  look into bureau or cabinet and inspect paper and it appear he do think so for  when they both come to my lord house in town with Mr Sydenham Mr Cowper bring  with he the key of the bureau there in which be several write and paper some  of which Mr Cowper only look over and take away with he say they concern the  late earl personal and not his estate and as Mr Cowper have the key of the  bureau with he so Mr Woodford let he look up the closet where the bureau be  and carry away the key which be put it into his sole power to look over all  the rest of the paper and write and dispose of they as he have already do of  some other in Mr woodfords presence this account for Mr cowpers do what he do  in relation to the other paper or book of account at Colnegreen without the  knowledge or participation of Mr Woodford beside either Mr Cowper find the  deed or write suppose by the defendant counsel at my lord house in town or in  the country if at his house in town the search of his paper and write there by  Mr Cowper have a power over they be in some sort by Mr woodfords consent and  if in the country that be do before and it can be imagine if Mr Cowper have in  his power what he want there he will then have burn or destroy so many paper  or write in so public a manner and after all this have possess himself of  paper and write in town with the privity of Mr Woodford have order Mr Sydenham  to send they to his chamber and several time after have tell Mr Sydenham he  have be look into they and destroy such as be not fit to be see again if Mr  Cowper have execute such a deed of release peer William and have intend to  suppress or destroy it he will have take a secret and clandestine way for that  purpose as the suppression of deed do in its nature suppose and not have burn  paper and write at several time in a open public manner for my part I do  declare that have there be the least positive proof of a release from Mr  Cowper I will have total dismiss the bill but when such release or conveyance  be only suppose or infer from appearance out of which that supposition do not  necessary or even natural arise and when my Lord cowpers leave the declaration  of trust in the hand of Mr Powell do encounter it I can but think this title  be subsist upon the whole matter my opinion be this title shall not have be  set up but now it be so it appear a plain and subsist one the law be clear and  court of equity ought to follow it in their judgement concern peer William er  p title to equitable estate otherwise great uncertainty and confusion will  ensue and though proceed in equity be say to be secundum separation good man  yet when it be ask man bone be quis the answer be who consulta father who law  juraq watch over and as it be say in rook case Rep b that discretion be a  science not to act arbitrary accord to man will and private affection so the  discretion which be exercise here be to be govern by the rule of law and  equity which be not to oppose but each in its turn to be subservient to the  other this discretion in some case follow the law implicit in other assist it  and advance the remedy in other again it relieve against the peer William  abuse or alley the rigour of it but in no case do it contradict or overturn  the ground or principle thereof as have be sometime ignorant impute to this  court that be a discretionary power which neither this nor any other court not  even the high act in a judicial capacity be by the constitution entrust with  burgess v wheat black Eden it be far to be observe that the legal interest of  these land pass by my Lord cowpers will and the defendant the present earl  have a estate for life only therein with a reversion in fee after several  intermediate remainder some contingent other vest and consequent the plaintiff  can have a conveyance only of such a estate as my Lord have the counsel make  no objection for want of my lord brother be a party who have the next  remainder and be not before the court therefore I will take no notice of he  but the defendant must convey such estate and interest as he have in the  Hertfordshire land and account for the profit as to the time or to what period  this account be to go back the court have very reasonable take a latitude  determine upon the circumstance of the case and since the plaintiff demand be  to draw tight law he ought therefore to have strict legal measure meet to he  see Bennet v Whitehead ante the plaintiff father file his bill not long after  the late earl death and if he have proceed on that bill may have have a  account of the profit from that time in the same manner as in case of a legal  title he will have have from the time of his entry but afterward he be so far  from insist upon a right to the profit from thence or upon the benefit of his  claim by that bill as to suffer a proceed whereto he be party to he have in  disaffirmance of it and therefore the plaintiff right must stand upon his own  claim peer William consequent I decree the earl Cowper to account for the  profit of the Hertfordshire estate in question the account to be take from the  fill of the plaintiff bill and the defendant to have all just allowance and to  be examine upon interrogatory as the master shall direct from this decree  which be soon after enrol there be a appeal to the house of lord where the  party agree and that agreement Geo be confirm by act of parliament peer  William er p peer William report volume report of case argue and determine in  the high court OF chancery and of some special case adjudge in the court OF  king bench collect by William peer williams esquire BarristeratLaw publish by  his son William peer williams esquire BarristeratLaw six edition by Monro  Lowndes and Randall Vol III peer William de term S the number three