case earl ferrers appellant countess dowager ferrers and other respondent that  march Mews dig way ten a by several deed charge different part of his real  estate with portion for his young child and afterward by his will confirm the  charge so make and then give the residue of his personal estate after payment  of his debt and legacy to trustee in trust to lie out the same in the purchase  of land to be settle to particular use the old son bring his bill controvert  the validity of the deed and insist that the personal estate be liable to make  good the several charge so far as it will extend hold that the personal estate  shall go accord to the will and that each particular estate shall bear the  specific charge make upon it decree of the English chancery affirm by  agreement Robert earl Ferrer be seize of a estate of near pound per and and be  desirous to make some provision for the respondent his wife and his child by  her by lease and release date the d and d of march convey to trustee brown his  estate in the county of Warwick to the use of himself for life remainder to  the respondent Robert Shirley for life remainder to trustee to preserve  contingent remainder remainder to the first and other son of Robert in tail  male with like remainder to the respondent his young son and their son in tail  male remainder to his own right heir the say earl by another deed date the  that of January settle his estate in Ireland after his own decrease to the use  of the respondent his son by the countess in tail male as tenant in common  with the remainder to his daughter by her in like manner by other deed of  lease and release date the d and d of November the say earl convey to trustee  and their heir all his estate in the county of Leicester Derby and Nottingham  to the use of himself for life remainder as to the premise in Derby and  Nottingham to Roland cotton and Samuel Sheppard their executor etcetera for  year in trust for the earl his executor and assign and as to the manor and  land of Ragdale Radcliffe Willows and Thrushington be part of the premise in  the county of Leicester after the say earl death to the use of the countess  Selina his wife for life if she continue his widow and unmarried and as  concern the same after her death or marriage and as for the other premise in  the county of Leicester after the earl death and also all the premise in the  country of Derby and Nottingham after the determination of the year term to  the use of the appellant for life remainder to trustee to preserve contingent  remainder remainder to the first and other son of the appellant with other  remainder over by other indenture of lease and release of the same date though  earl convey his estate in the county of Stafford to the use of himself for  life and after his decease to the use of Samuel Sheppard and George townsend  their executor etcetera for year without impeachment of waste in trust for the  earl his executor etcetera and after to the use of the appellant for life  remainder to trustee to preserve contingent remainder remainder to his first  and other son in tail male with other remainder over the earl by his last will  attest by three witness and date the that of November after recite the  limitation by the first mention deed of release of the d of November of the  premise in the county of Derby and Nottingham to cotton and Sheppard for year  in trust for the earl his executor and assign devise and appoint that the say  cotton and Sheppard their executor etcetera shall so stand possess thereof  upon trust out of the profit to pay yearly pound to each of his son Henry  George Sewallis and John and all other son he shall have by his then wife  during their several life free from tax and after payment of his debt and  legacy the testator give all the residue of his personal estate to the  respondent sir George Beaumont George townsend Samuel Sheppard and Thomas  Harlewin who he make his executor upon trust during such time and time as  there shall arise and happen any suit or controversy between brown brown er p  the testator say wife and any or either of his son by his first wife or any of  their issue touch the settlement or provision he have make for her by the  indenture of the d and d of the then present month of November to pay or cause  to be pay out of the same unto his wife the yearly sum of pound by quarterly  payment until such dispute suit or controversy shall be full determine and so  so often how often as any such dispute suit or controversy shall arise and  happen and he further will that the overplus of his personal estate shall be  lie out and dispose of by his executor in the purchase of land in England and  settle to the same use as be limit of his estate in the county of Warwick by  the indenture of release of the d of march and after recite that by the say  indenture of lease and release of the d and d of November he have convey and  settle his estate in the county of Stafford after his own decease to the use  of the say Sheppard and townsend their executor etcetera for year in trust for  himself his executor and assign the testator by his say will devise direct and  appoint that Sheppard and townsend and the survivor of they his executor and  administrator shall so stand possess of the say estate upon trust for the more  effectual secure the payment of his debt and the annuity legacy and sum of  money direct to be pay by his will and upon further trust by and out of the  say Staffordshire estate and the rend and profit thereof or by sale or  mortgage thereof for the say term of year to raise and levy so much money as  shall from time to time be sufficient to indemnify secure and save harmless  his say wife and all and every his child by her and all and every his trustee  in any provision or settlement he have make for the benefit of her they or any  of they by deed or deed or by his say last will and also his executor of from  and against all cost damage trouble loss and expense which she they or any of  they shall sustain or be put unto for or by reason of any action or action  suit or suit either in law or equity which may or shall be commence or  prosecute against her they or any of they for or on account of any settlement  annuity legacy or provision which he have or shall make grant or provide for  his say wife or any of her child by he and to pay and apply the same from time  to time accord the testator thereby express it to be his intention that all  such settlement provision annuity gift or bequest shall be quiet hold and  enjoy by they respective without any let suit or disturbance of any of his  child by his former wife or any other person or person claim by from or under  they or any of they or in default thereof that whatsoever loss his say wife or  any of his child by her shall sustain by reason of such let suit or  disturbance shall be make good to her and they by his say trustee out of the  say Staffordshire estate so limit to they for the say term of year and from  and after these trust shall be full perform then the trustee be to stand  possess of the say Staffordshire estate for the residue of brown the say term  in trust to attend the reversion and inheritance expectant on the  determination of the same term on the that of December the earl die and he  have by a clause in his will and also in the deed whereby the Leicestershire  estate be settle on the respondent the countess direct that she shall release  all dower out of his estate she accord execute a deed for that purpose soon  after the earl death the appellant as his old son and heir enter upon all the  estate design as a provision for the respondent and all the other estate of  which his father die seize and also upon the estate in Ireland settle on the  respondent his young son whereupon in Trinity term ejectment be bring for  recovery of those estate but the appellant instead of try the title at law  give judgement in all the ejectment with stay of execution for a limit time  and in Michaelmas term a little before that time be expire the appellant  exhibit his bill in chancery against the respondent state that by indenture  date the that of September the late earl Ferrer be seize of the estate in the  county of Leicester Derby Warwick and Nottingham for his life with remainder  to Robert his then old son and heir apparent by Elizabeth his first wife in  tail male remainder to all other the son of the late earl by his then wife in  tail male that by article date the that of September make on a intend marriage  which be afterward have between the say Robert and Ann Ferrer it be agree that  within twelve month after Robert shall attain his age of the say late earl and  Robert his son or one of they will by fine and recovery or other brown er p  wise convey to trustee and their heir the say estate in the county of  Leicester Derby Warwick and Nottingham to the use of the late earl for life  remainder to the say Robert for life sans waste remainder to trustee to  preserve contingent remainder remainder to the first and other son of the say  Robert and Ann in tail male remainder to the appellant the second son of the  late earl for life remainder to trustee for preserve contingent remainder  remainder to the appellant first and other son in tail male with other  remainder over in which settlement there shall inter alian be contain a power  for the late earl to revoke or alter all or any of the say use or estate  except those limit to the say Robert and Ann or to the use of the issue of  their two body that Robert attain in the year when the late earl and he join  in suffer common recovery of the say estate but that the say Robert contrary  to the article be prevail on by the earl to join with he in a indenture date  the that of October whereby the use of those recovery be declare to the use of  the say earl and his heir who by indenture of lease and release date the that  and that of November for the settle those estate convey the same to trustee  and their heir to the use of himself for life sans waste remainder brown to  the say Robert his old son and the heir male of his body remainder to the  appellant his second son and the heir male of his body with like remainder to  the earl other son in tail male remainder to the earl in fee with a power  therein contain for the earl by deed to revoke all or any of the say use and  appoint other that the say Robert afterward die leave a son name Robert who  also die without issue in the year whereby the appellant be then next heir  male of the late earl that the say late earl do not make any such deed and  will in favour of the respondent as before mention and therefore the bill pray  that all those deed and will may be set aside and that a injunction may be  award to stay the respondent proceed on the ejectment the respondent by their  answer to this bill admit that such deed and article have be execute and such  recovery suffer as in the bill be mention but as to the deed declare the use  of the say recovery the respondent state that they have only in their custody  a drought or copy thereof and of which the appellant be so inform before he  bring his bill and that the respondent know not what be become of the original  deed they also state that the late earl after the death of his say old son  Robert and failure of his issue male do pursuant to his power revoke the use  in the deed of the that of November of the say estate and limit the same to  himself and his heir before he make the deed and will as a provision for the  respondent his wife and child and insist that the say deed and will be duly  and fair make and that they be several entitle to the estate and provision  thereby settle and appoint for their benefit but that the appellant have  immediate on the late earl death in December get possession of all those  estate and have ever since withhold the same from they notwithstanding the  information he have receive of the respondent right thereto as aforesaid and  that therefore be thus distress they cause declaration in ejectment to be  deliver for the same as abovementioned the appellant have in the usual manner  obtain a injunction upon the respondent pray time to answer they on the that  of October after the answer be file move the court to dissolve the injunction  whereupon it be order that the respondent shall be at liberty to proceed to  trial upon the declaration which have be deliver for the premise in question  or to bring new ejectment as they shall be advice but the take out execution  be stay till the further order of the court and it be also order that both  side shall before such trial produce upon oath before a master all deed and  write in their custody relate to the say premise to be inspect by either party  this inspection be accord have and the respondent not find the original deed  for lead the use of the recovery suffer in be advice that they can not proceed  on the brown ejectment but in regard the late earl have effectual convey and  subject his estate in Staffordshire which he have a undoubted power over for  the make good his settlement and provision for the respondent his wife and  child out of the estate in the other county the respondent be advice to  deliver ejectment for the Staffordshire estate which the appellant on the earl  brown er p death have get possession of as well as of the other estate in  order to obtain satisfaction of their demand accord to the late earl will  ejectment be accord deliver for the Staffordshire estate and by rule of court  the same be to be try in Michaelmas term but about a fortnight before the day  of trial the appellant file a supplemental bill charge as new matter that the  late earl personal estate be by his will make liable in the first place to  make good the provision make for the respondent and that the same be  sufficient for that purpose no trial ought to be have touch a satisfaction of  any of the respondent demand out of the Staffordshire estate until a account  be take of the personal estate and in case the same shall not be sufficient to  answer such demand then until a satisfaction can be seek for out of the estate  in the county of Derby and Nottingham subject to the term of year limit to  cotton and Sheppard which be by the will direct to come in aid of the personal  estate and the appellant thereby insist that he ought not to be strip of the  possession of the Staffordshire estate until it shall appear that such other  provision prove deficient but shall such be the case then upon a fair trial to  he have for any of the say estate in the county of Leicester Derby Warwick and  Nottingham if it shall appear that the late earl as capable and have duly make  such settlement and will the appellant by his say bill undertake to make good  all such matter and thing to the respondent as any of they shall appear to be  entitle to a satisfaction for out of the say estate in the county of Stafford  the personal estate be first account for and apply as by the will be direct on  the that of November immediate after fill this supplemental bill the appellant  move the court for a injunction to stay the proceed on the ejectment bring for  the Staffordshire estate and that the same may extend also to stay the trial  whereupon it be order that on the appellant give judgement in the say  ejectment in three day with a release of error a injunction shall be award  till the hear of the cause which the appellant be to speed to a hear and he be  by consent not to bring a writ of error and to deliver possession of the  premise or any part thereof from time to time as the court shall direct the  respondent soon afterward put in their answer to the supplemental bill and  thereby insist that it be apparent from the will that no part of the late earl  personal estate be subject or applicable to make good the settlement of his  Warwickshire estate by the deed of march for the benefit of his son the  respondent brown Robert Shirley and his issue male nor to make good the  annuity of pound per and a piece to his young son the respondent George  Sewallis and John Shirley by the will direct to be raise and pay out of the  earl estate in the county of Derby and Nottingham by virtue of the year term  vest in cotton and Sheppard by the deed of November but that the Staffordshire  estate be by the will express subject to maker good those settlement and  provision in case the same be withhold as have be do by the appellant the  respondent also insist that no art of the personal estate be by the will  liable to make good to the respondent the countess such provision as the earl  have make for her out of his estate in Leicestershire which be limit to her by  the other deed of November during her widowhood or to discharge the  Leicestershire estate therefrom but only for the raise and pay out of the say  personal estate the yearly sum of pound to the countess so long as any dispute  suit or controversy shall depend between her and any of the earl son by his  first wife touch his say settlement of the Leicestershire estate and which be  intend only as her support until such controversy shall be end and determine  both side afterward examine their witness and the respondent full prove the  due execution of the say deed and also of the late earl will and the value of  the several estate settle as a provision on they and on the d of February the  cause be hear before the then lord commissioner for the custody of the great  seal when it be order and decree that it shall be refer to the master to take  a account of the rend and profit of the land which be settle on the respondent  the countess Ferrer in jointure and to see what the same amount to since the  death of the late earl after all just allowance and what the master shall  certify due to the respondent for the arrear of her jointure be to be make  good to brown er p her out of the Staffordshire estate and the master be to  see what be the annual value of the jointure land and to see that land of the  same annual value in lieu thereof be settle on her for her jointure out of the  Staffordshire estate and the master be to take a account of the rend and  profit of the Warwickshire estate settle on the respondent Robert Shirley and  to see what the same amount to since the death of the late earl after all just  allowance which be to be make good to the say respondent Robert Shirley out of  the Staffordshire estate and the master be to inquire and see what the  inheritance of the Warwickshire estate be worth and what he shall certify the  same to be worth be to be make good out of the say Staffordshire estate and  the master be to see the same when raise lie out in a purchase of land to be  settle to the same use as the Warwickshire estate be settle and the master be  to take a account of what be due to the respondent the three young son of the  late earl by the respondent the countess for the arrear of their annuity of  pound per and apiece which arrear be to be pay to they out of the  Staffordshire estate brown and the say master be to see that so much of the  Staffordshire estate as shall be sufficient to answer the say three annuity of  pound each for the future shall be settle for that purpose and the master be  to inquire and see whether the late earl have a power to make the settlement  of the Irish estate on the respondent his son and if he shall find he have  such power then the Staffordshire estate be to be charge only with what the  arrear of the rend of the Irish estate since the earl death amount to after  all just allowance make but if the master shall find that the earl have no  power to make such settlement of the Irish estate then the person claim under  that settlement be to have satisfaction out of the Staffordshire estate and  the master be to settle the value of the inheritance of the Irish estate and  what he shall certify the same to be so much money be to be make good and  raise out of the Staffordshire estate and the master be to see the same when  raise lie out in a purchase of land to be settle to the same use as the Irish  estate be settle and the master be to see the Staffordshire estate and the  timber grow thereon or so much thereof as shall be necessary for discharge  what be charge thereon in respect of the say other estate so settle as  aforesaid sell for that purpose to the best purchaser or purchaser that can be  get for the same subject to the countess jointure and the annuity to the young  child but care be to be take in the sale that such part as shall be most  beneficial shall be preserve unsold for the benefit of the person or person  entitle to the remainder in case there shall be no occasion to sell the whole  estate and in case the Staffordshire estate shall be sufficient to raise the  whole that be charge thereon then no account be to be take of the rend and  profit thereof which have be receive by the appellant but in case it shall not  be sufficient to answer all the charge thereon then the appellant be to  account before the master for the rend and profit thereof receive by he or any  other for his use since the late earl death and the master in take that  account be to make the appellant all just allowance and if the Staffordshire  estate and the rend and profit thereof from the time of the late earl death  shall not be sufficient to answer the say several charge thereon then the  master be to apportion the say rend and profit and the money for which the say  estate and timber thereon shall be sell between the party who be to have a  satisfaction thereout in proportion to their several demand and the deficiency  of the estate to answer the same and the respondent the executor of the late  earl be to account before the master for his lordship personal estate come to  their hand or use in which he be to make all just allowance and also to take a  account of the earl debt and legacy which be to be pay thereout and the  surplus of the say earl personal estate be to be lie out in a purchase of land  with the approbation of the master to be settle for the use and purpose direct  by the earl will and the master be to appoint a fit person to be receiver  brown of the rend and profit of the Staffordshire estate in the possession of  the appellant except the house and park and the ground therewith use and such  receiver be to give security to be allow by the master and be thereupon with  the approbation of the master to be at liberty to take any legal course to  recover the possession thereof from any other person in the name of the  respondent the trustee and the master be to settle a annual value to be pay  for the house and park and ground use therewith which be to be pay by the  appeal brown er p lant to the receiver and the say receiver be out of the rend  and profit of the say estate to pay what the master shall certify due to the  respondent the countess for the arrear of her jointure and to the young child  for the arrear of their annuity and to the respondent Robert Shirley what  shall appear due to he for the arrear of the rend and profit aforesaid and the  master be to tax the respondent their cost both at law and equity which be to  be pay out of the Staffordshire estate and it be further order that a  perpetual injunction shall be award for stay of the respondent proceed at law  on the ejectment bring by they or any of they for the estate in the county of  Leicester Derby Warwick and Nottingham and all further proceed at law for the  rest of the estate in question on the that of march and before this decree be  draw up the respondent apply for and obtain a order direct the master to  appoint a receiver and both side attend he for that purpose the master by his  report date the that of that month certify that he have appoint one Mr William  Busby the receiver to who the appellant himself declare he have no objection  save only that he be of the respondent name or their agent and therefore  insist that the master shall appoint another but as Mr Busby be a gentleman of  a undeniable character and a good estate the master think fit to appoint he  and he enter into a recognizance with the respondent sir George Beaumont  Robert Shirley and another sufficient person in a considerable penalty for his  true account the appellant however petition the court to discharge he but upon  full hear of counsel on both side the court dismiss the petition the appellant  therefore appeal from the decree order and report as be erroneous in the  follow particular I that the court of chancery have not direct a issue at law  to try whether there be any settlement former make of the manor and estate at  Chartly whereby the same be so settle as to come to the appellant in tail or  in any other and what manner two that direction be give by the decree touch  the Irish estate whereas there be no sufficient foundation for they there be  nothing either in the appellant original or supplemental bill relate thereto  nor in any of the defendant answer to those bill save only in the answer of  the respondent townsend the countess and Robert Shirley to the supplemental  bill wherein brown they only say they conceive that no part of the late earl  personal estate be applicable to make good his estate in Ireland for which  they have exhibit a bill against the appellant III that in case the  Staffordshire estate shall not be sufficient to answer all the charge thereon  then the appellant be decree to account for the rend and profit thereof  receive since the earl death whereas it be conceive he ought not to account  for any of such rend and profit or at least only from the time of make the  entry upon and bring the ejectment of that estate and IV for that Mr Busby be  allow the receiver of the Staffordshire estate the appellant petition touch  the nomination of a receiver for that estate be dismiss and no regard have to  the person who be nominate by he and in support of this appeal it be say p  York c Wearg that it appear from certain letter write by Mr sergeant bigland  before September that the late earl tell he the Staffordshire estate be settle  on Mr Robert Shirley the appellant elder brother and it also appear from a  letter of dame Elizabeth Ferrer on the saint of August that the earl have  mention to her the strict settlement of his estate and that his paternal  estate be settle by his father and the other part by himself on his marriage  and this paternal estate must mean the Staffordshire estate that endeavour be  prove to have be use to conceal or make away with the deed or settlement of  the estate and even to get in the very draught of they and as the indenture of  the that of October be not to be find it may well be presume that the  settlement of the other estate be lose or destroy also that if the late earl  in his lifetime intend to have make the respondent a effectual provision or  settlement he will primary have charge the same on the Staffordshire estate if  he have be conscious that he have sufficient power so to do and not have make  such provision in the first place out of the other estate which he can not but  know be thereby defective and liable to be defeat that it appear by the deed  and will on which the respondent find their charge brown er p on the  Staffordshire estate that the same be only in the nature of a mortgage or  security in case the other estate prove defective and the respondent can not  but know that the title be defective though they be not please to discover the  same to the appellant but on the contrary bring ejectment for those estate  which they afterward relinquish and which occasion the appellant to pay pound  to the Lord and lady Compton or else he have not have one foot of land  whatsoever and as the respondent do not bring any ejectment or make any entry  for several year on the Staffordshire estate they ought not to have any  account of profit but from the time of such ejectment or entry on the other  side it be contend t Lutwyche c Talbot that there be no occasion for any issue  to be direct it full appear by the deed produce and read in court that the  late earl have a undoubted power over the Staffordshire estate to make the  settlement which brown he have do for the benefit of the respondent nor do the  appellant or his counsel ever controvert the same and therefore there can not  appear to the court any colour or foundation for direct a issue as to the  direction in the decree concern the Irish estate that estate be sufficient  mention in the respondent answer to be settle by the late earl upon the  respondent his son as part of the provision intend for they and the  Staffordshire estate be express subject by the testator will to make good all  his settlement and provision whatsoever for the respondent his wife and child  the decree therefore have do the appellant no hurt in this matter for it have  not determine the title but only direct the master to see whether the late  earl have power to settle the Irish estate on the respondent and if he have  then the Staffordshire estate be only to be charge with what the arrear of the  Irish estate amount to but if he shall find that the earl have no power then  the person claim under those settlement be to have satisfaction out of the  Staffordshire estate and which direction be only conformable to the express  direction of the testator that if the Staffordshire estate shall prove  deficient to answer all the charge thereon it be but reasonable and we that  the appellant who from the late earl death in get the possession and have all  along receive the profit till the cause be hear shall answer and make good to  the respondent all that he in their right have receive more especial as he  likewise get and hold the possession of the other estate which be immediate  settle upon they that as to the receiver there can be not colour for a  objection for as he be appoint for the respondent benefit and as the estate of  which he be so appoint receiver be but a slender fund for their satisfaction  it high concern they to get a person name in who they can confide and who will  make the most of the estate that they know of no other person in the country  so proper as Mr Busby and as undoubted security have be give for his true  account if any misbehaviour shall appear the appellant will have his remedy in  the court of chancery under the recognizance that the appellant be in the  possession of a large estate over and above the provision make for the  respondent and which he may ultimate have free from those provision the  settlement on the countess be only during her widowhood and the three small  annuity to the three young son only for their life but for as much as those  provision be for the respondent support and maintenance and as the appellant  have by all possible delay keep they out of the same for seven year it be hope  that the decree and order will be affirm and the appeal dismiss with cost  after hear counsel on this appeal Mr attorneygeneral on the part of the  appellant acquaint the house that the party be come to a agreement and that  the same be put into write and sign as well by the countess and Robert Shirley  as by the earl and the counsel for the respondent likewise acquaint brown the  house that they consent to the say write agreement the same be deliver in at  the bar and read and after consideration have in relation to this matter it be  order and adjudge accord to the say agreement that the decree shall be affirm  with the follow direction videlicet that the possession be deliver of the  Warwickshire estate to Mr Robert Shirley before ladyday next that the  possession of the jointure estate in Leicestershire be deliver to the countess  before ladyday next that the annuity to the young son be charge on the  Staffordshire estate that the possession of the Irish estate be deliver before  the saint day of may brown er p next to Mr Robert Shirley and his three young  brother that thereupon the receiver of the Staffordshire estate be discharge  and possession thereof deliver to the earl before ladyday next that all arrear  profit and cost and all other matter in dispute be refer to the right  honourable the Lord chancellor Lord viscount Harcourt and Lord Trevor or any  two of they to be adjust and moderate as their lordship shall think fit and  that their lordship or any two of they be desire for the quiet the family to  propose a plan of a act of parliament for settle the jointure estate upon the  lady dowager Ferrer during her widowhood the Warwickshire estate accord to the  use of deed of the d of march and the Irish estate accord to the deed of the  that of January and to secure the annuity to the three young son on the  Staffordshire estate and to secure the benefit of the term of year on the  Staffordshire estate to the earl his executor or administrator jour vol p