case Charles mordant and other appellant peter MINSHULL and other respondent  that march upon a bill in the nature of a bill of revivor against a devisee  the defendant can dispute the justice or validity of the former decree for if  he can a devisee will be in a better condition than a heir but the rule be  that haeres born be rather to be favour than haeres factus decree of the  English chancery affirm vern Eq ab c viner vol p note to oh a can vol p can by  the name of Minshull v Mohun ld sir Edward Fitton bart be seize of the manor  of Aldford hold in capite and of other manor and land in the county of Chester  by deed date the d of April in consideration of his marriage and of pound  portion settle part of the premise to the use of himself for life remainder to  trustee for year with remainder as to all other the premise to dame jane his  wife for life remainder to himself for life remainder to the same trustee for  year remainder as to all the premise to the first and other son of the  marriage in tail male successive and for want of such issue to the use of such  person and person and for such estate and estate as sir Edward by deed or will  shall limit or declare and for want thereof to the use of sir Edward and his  heir with a power of revocation by another deed date the that of June follow  it be declare that the use estate and term by the first deed limit to the  trustee be so limit to the intent that if dame jane brown die in sir Edward  lifetime without issue the say trustee shall after her death dispose of the  say manor and premise and the year term to such use and purpose and in such  manner as sir Edward by will or write in the presence of two witness shall  appoint dame jane afterward die in the lifetime of sir Edward without issue  and on the that of August sir Edward make his will in the presence of four  witness and after take notice that he be deprive of all necessary assistance  and convenience of the law and lawyer he thereby revoke all former settlement  by he make of his land and estate in Cheshire and appoint and declare his  nephew Charles Gerard afterward earl of Macclesfield to be full and sole heir  of all his land and estate whatsoever on the that of the same month sir Edward  Fitton die without issue and the will be void by reason of the tenure in  capite as to a three part of the land devise such three part descend to his  seven sister and coheir videlicet dame Ann Gerard alias Brereton grandmother  of Lord Brereton Frances the wife of Henry Manwaring esquire lettuce the wife  of John coal jane the wife of Thomas Minshull esquire the respondent  grandmother Penelope the wife of sir Charles Gerard mother of Charles Gerard  the devisee mary the wife of jeffre Minshull esquire and Alice the wife of sir  John Mericke knight the earl of Macclesfield have obtain administration with  the will annex and get possession of the whole estate and of the deed and  write relate to it purchase in the share of Manwaring Mericke jeffre Minshull  and his wife and coal but in the year one William Fitton and other set up some  title to the estate which occasion the earl to file a bill in chancery for a  discovery and on the that of November car that cause be hear before the Lord  chancellor Clarendon who decree a assignment of the year term to the Lord  hawli and other in trust for the earl who be also decree to hold possession of  the estate against the Fittons the assignment of the term be accord execute  and this decree be afterward confirm by another decree after a verdict at law  notwithstanding which the Fittons bring a bill of review to reverse and set  aside both the decree and also the verdict but upon a plea and demurrer to  this bill it be dismiss sir Edward Fitton have in his lifetime mortgage part  of the premise to brown er p one mary king for a term of year for secure pound  and interest the earl file a bill for a redemption and by a decree date the  that of may car two this mortgage be order to be assign to trustee for his  benefit which be accord do in Thomas Minshull the respondent father bring a  ejectment for recovery of his seven part of a three part of the estate the  trial of which be delay by the earl privilege brown and otherwise until the  ejectment lease expire he therefore in bring another ejectment in the name of  John Smallwood his lessee for recovery of his share of the say premise which  be ready for trial the earl in Hilary term bring his bill in chancery against  the say Thomas Minshull for a injunction to which he put in his answer and  deny the whole equity thereof but on the earl allege that he have record in  the tower to search for to defend his title he obtain a injunction to stay the  say Thomas Minshull from proceed at law but it be order that the trial shall  only be put off till the then next summer assize the earl afterward on similar  pretence pray far time but on the that of July it be order that the respondent  say father and the earl shall proceed to a trial at the exchequer bar in the  then next Michaelmas term on this issue videlicet whether the say manor of  Aldford be hold by tenure in capite or not and after proper direction be give  for such trial the court declare that if a verdict pass for the defendant  Minshull that on his motion a commission shall issue to indifferent person to  set out his proportion and share of the estate whereof sir Edward Fitton die  seize and that the mesne profit thereof shall be decree he this issue be make  up and the respondent father have at great charge bring his witness out of  Cheshire to the trial the earl on the that of November follow move the court  of chancery that he may waive the trial of the issue for that he admit the say  manor to be hold in capite which he do not discover till late and that there  be a lease make by sir Edward Fitton for year that will protect his estate  against the say Minshulls claim and therefore pray liberty to amend his bill  and upon hear counsel on both side it be order that the earl shall be at  liberty to amend his bill on payment of twenty shilling cost but he be to do  it before the end of the term and the injunction from thenceforth be to stand  absolute dissolve the earl go on no far with his suit but the respondent  father discover that the earl pretend there be some term of year create by sir  Edward Fitton which may prevent his remedy at law he and the say John  Smallwood his lessee in the ejectment bring their bill in chancery in Hilary  term against the earl and the other coheir of sir Edward Fitton and against  the Lord wharton and Richard and Thomas leigh in who the term be pretend to be  vest set forth the former proceed and the delay and expense he have be put to  by the earl and that in regard the earl have confess the issue to be against  he he ought to have a commission to set out his share and proportion of the  say estate and that the earl ought to produce the deed and write relate  thereto and to account for the mesne profit and also charge that to delay the  plaintiff recovery of his just right the defendant pretend that two term of  year be create by the marriagesettlement of brown sir Edward Fitton upon his  estate which the plaintiff charge if such there be be intend for performance  of some trust agree on between sir Edward and his lady relation and after to  remain and be to and for the benefit of the heir of sir Edward Fitton and that  sir Edward and his lady be dead without issue and the marriageagreement in  equity perform the same term in case any legal estate thereof do remain ought  to attend the inheritance and to go and be for the use and benefit of such  person to who the inheritance belong but that the earl have procure the say  term by some mean to be assign to the say defendant the Leighs in trust for he  and therefore the bill pray a discovery of the defendant title and of the deed  and will and to have the benefit of the term if yet in be and a commission to  set out the plaintiff Minshulls share and to have the term as far as they  relate thereto assign to attend the inheritance and for a account of his share  of the profit to this bill the earl put in his answer set forth the will of  sir Edward Fitton brown er p and the settlement of the d of April and insist  that the term for year thereby limit be so limit to prevent the descent of any  part of the land upon the capite tenure to any person or person otherwise than  as sir Edward by will or otherwise shall dispose of they and that those term  be still subsist he ought to have the sole advantage of they he admit that he  be administrator with the will annex of sir Edward Fitton and that the year  term be assign in trust for he the other defendant also put in their answer  and all the coheir except Lord Brereton admit their convey their interest to  the earl and the Leighs admit the term of year to be assign to they in trust  for the earl witness be examine on both side the cause be hear on the that of  June when the earl make default a decree be make unless cause and the earl  come to show cause on the that of November follow the Lord chancellor  jefferies declare he be full satisfy that the term ought to attend and wait  upon the inheritance of the premise and it be admit that part of the land be  hold in capite he conceive that the will as to a three part be without all  controversy void and that the plaintiff Minshull as son and heir of one of the  seven sister and coheir of sir Edward Fitton be well entitle to a seven part  of a three part of the say manor and premise and therefore decree the term to  be assign to protect the inheritance and a commission to set out the say  plaintiff part of the estate to be enjoy in severalty by he and his heir  subject nevertheless and Chargeable in proportion to the debt of sir Edward  Fitton but the profit receive and the personal estate possess by the earl be  to be account for and apply for that purpose and if there shall be any surplus  profit the earl be to pay the plaintiff Minshull his proportion thereof from  fill brown the bill and to bring all deed and write into court but cost be  reserve pursuant to this decree a commission be execute and a seven part of a  three part of the estate be about pound per and be set out and allot to the  respondent father but the earl have take exception to this allotment the same  come on to be argue on the that of July when the Lord Brandon son of the then  defendant the earl and who afterward succeed he appear in court and declare  his father willingness to purchase the respondent father interest at such  price as indifferent person shall set it be by consent of the party and the  Lord Brandon refer to three gentleman name in the order or any two of they to  set a value on the respondent father share of the estate and to set down and  appoint what the earl or the Lord Brandon shall pay he as well for the  absolute purchase of his share of the estate as the mesne profit decree and to  end all other matter and their award be by consent to be final and on payment  the respondent father be to convey all his interest to the earl but if the  Lord Brandon shall not sign his consent to that order in three day the  commissioner certificate of the allotment be to stand absolute confirm the  Lord Brandon and Mr Minshull do sign their consent accord but Lord Brandon  avoid attend the referee so that no award be make several of the party die  before any thing far be do the respondent Peter as heir to his father and to  Thomas Minshull his brother and the respondent Alice and jane as their  administratrixes in April bring their bill against Charles Lord Mohun devisee  of the real estate and executor of earl Charles the son and the trustee of the  year term and other pray that the former decree may be carry into execution  and that they may have the benefit of those proceed and a satisfaction for the  mesne profit out of the asset of earl Charles the father and earl Charles the  son to this bill the defendant Lord Mohun put in his answer insist that the  former decree and proceed ought not to be bind or conclusive to he and that  the term of year be subsist of which he ought to have the benefit as executor  and residuary legatee of earl Charles the son afterward Lord Mohun exhibit a  cross bill against the respondent to unravel all the matter that have be  settle by the former decree and to quiet his possession to which bill the  respondent put in their plea insist on the former decree and proceed and that  after a decree so long since make sign and enrol and brown er p so far execute  and submit to after earl Charles the father have so long since buy in the  share of the other coheir and after year suit wherein they and their father  have spend the full value of the land allot they Lord brown Mohun who claim by  a voluntary devise under earl Charles the son will the person who submit to  the decree and sign the registerbook for himself and his father ought not to  be permit by a original bill to ravel into the former proceed or impeach the  decree but Lord Mohun not think fit to proceed far in that suit the cause  wherein the respondent be plaintiff come on to be hear ex part on the that of  June when Lord Mohun make default a decree be make unless cause and Lord Mohun  come to show cause against that decree on the that of November follow the Lord  keeper Harcourt declare that consider the distance of time since the former  decree and the nature of the proceed have thereupon he do not conceive it  proper at that distance of time to draw into examination the justice of the  former decree and the rather for that as be then admit if the heir of earl  Charles the father be before the court it ought not to be do and much less in  the case of a devisee and therefore decree that the former decree and proceed  shall be carry on and execute and that the plaintiff Peter and his heir shall  hold and enjoy the land so allot to he and his heir and that possession  thereof shall be deliver and a account of the profit take and direct cost to  be pay out of the asset of the respective testator estate but it be insist  that there be exception take by earl Charles the father to the commissioner  allotment which remain undetermined it be order that the Lord Mohun shall  procure those exception to be hear within a month then next or in default that  the certificate shall stand absolute confirm Lord Mohun never apply to have  the exception argue pursuant to this last decree and thereby the certificate  become absolute but he lodge a appeal against the say decree which he neglect  to prosecute and on the respondent endeavour to proceed below the proceed on  that appeal be renew by the appellant the lady Mohun and continue till the  that of march when the same be dismiss for want of prosecution vide jour vol p  and at the same time no less than thirtyfour other appeal be dismiss for the  same reason in Trinity term the respondent bring their bill to carry the  former decree and proceed into execution against the appellant lady Mohun as  the devisee and personal representative of Lord Mohun and also against the  other appellant her husband to which bill the appellant put in their answer  and without insist on the term for year or on any hardship in the say decree  submit to be examine on interrogatory for the discovery of Lord mohun personal  estate and touch the account of the rend and profit of the land claim by the  respondent on the that of December this cause be hear at the roll on bill and  answer when the appellant make default a brown decree be make unless cause for  carry the former decree and proceed into execution and for the appellant  delivery of the possession and convey to the respondent Peter and his heir the  allot land and for a account of profit and no cause be show to the contrary  this last decree be on the that of January follow make absolute without any  complaint against the justice thereof and be accord afterward sign and enrol  but the appellant afterward think proper to appeal from all these decree and  proceed and on their behalf it be argue c Wearg c Talbot that earl Charles the  father do not take the estate under the will of sir Edward Fitton any  otherwise than as the same operate by way of appointment or declaration of a  new use pursuant to the power reserve to sir Edward by the settlement of the d  of April so that earl Charles the father be in by the settlement and not by  the will consequent have a good title to the whole estate and therefore the  statute of and Henry VIII touch devise of land do not operate on this estate  nor can the same under such disposition thereof be void as to one three part  for the benefit of the coheir of sir Edward Fitton that the two several term  of brown er p year be term in gross and not attendant upon the inheritance of  the premise consequent the trust or benefit thereof do effectual pass to and  vest in earl Charles the father by virtue of sir Edward Fitton be will and  therefore during the continuance of those term the coheir of sir Edward can  have no title to a three part of the premise even suppose earl Charles the  father to have take the inheritance thereof by the will for sir Edward have  indisputable a good right to dispose of the equitable interest in the say term  and have so do by his will they ought not in a court of equity to be set aside  as to one three part of the premise for the benefit of the coheir in violation  of the plain intent of sir Edward Fitton be will and the rather in regard both  these term have be long since assign in pursuance of a former decree of the  court of chancery car two for the benefit of earl Charles the father and who  have real pay a great sum of money for redemption of the mortgage create by  sir Edward Fitton shall it be object that earl Charles the far by his answer  in the original cause insist that he claim by the will and do not make his  defence that he be in by the settlement and that therefore the appellant can  not now make that objection to the decree of it be answer that the settlement  of April and sir Edward Fitton be will be full set forth in the plead in the  original cause and proper put in issue and that the title of earl Charles  depend upon the proper construction of both which be proper for the judgement  of the court that judgement ought to have be give accord to the rule of law  arise upon the whole matter disclose by the plead and not upon any single  instrument independent of the rest beside though earl Charles the father  insist by his answer that he claim brown under the will that do not exclude  his be in by the settlement for the will operate as a appointment or  declaration of a new use accord to the power in the settlement so that he real  take the estate by virtue of the will not operate as a will but as a execution  of the power and since his answer may bear that construction a court of equity  ought to take it in that sense as be agreeable to the truth and justice of the  case shall it be also object that the two term for year create by the  settlement of April be attendant upon the inheritance and consequent that the  respondent Peter Minshull be entitle to a seven part of one three of the  premise therein comprise it be answer that there be no express declaration of  trust either in the say settlement or any other deed execute by sir Edward  Fitton which render these term attendant on the inheritance and consequent  that they ought to be deem in equity as term in gross and create by sir Edward  on purpose to prevent his heir from take any advantage of any share of his  estate against the declaration and direction of his will by the tenure in  capite and be keep on foot in trust for he and such person and his heir to who  he shall limit his estate by his will that sir Edward Fitton have undoubted a  absolute power to dispose thereof as he think fit and by his will have make  such disposition to earl Charles the father and the term be intend and ought  to wait upon the inheritance so limit or dispose of by sir Edward or else  belong to the earl as his administrator with his will annex and the appellant  lady Mohun be sole executrix and devisee of Charles Lord Mohun her former  husband who be executor and residuary legatee of earl Charles the son who be  executor and residuary legatee of earl Charles the father be entitle to the  say term and consequent during the continuance thereof the respondent Peter  can have no right to the premise and if any objection shall be raise by reason  of the distance of time since the former decree be pronounce or the nature of  the proceed have thereon it may be answer that all the laches throughout this  whole affair be to be impute sole to the respondent since they rest upon the  first decree in and never attempt to carry the same into execution for near  twenty year next after they be pronounce during all which time earl Charles  the father and those claim under he enjoy and continue in possession of the  estate act as owner thereof make settlement of the same for valuable  consideration and dispose of the inheritance thereof without any claim  disturbance or other interruption from the Minshulls or any claim under they  till the year when they prefer their bill against Charles Lord Mohun and even  since the decree in they do not think fit to proceed till a few month ago and  therefore it be conceive that neither the distance of time since brown er p  the former decree be pronounce or the nature of the proceed brown which be  have thereon can be any hindrance or just objection to the appellant draw the  justice thereof into examination on the other side it be contend t Lutwyche  that after so great a length of time and the several proceed in the cause the  appellant ought not to be permit to question the justice of the decree in for  that after a ejectment bring by the appellant father and great delay make use  of to hinder he of his right the earl above fortytwo year since file his bill  and on the that of July a issue be I direct to try whether the land in  question be hold in capite or not and the court then declare that if the  verdict shall find they be so hold a commission shall issue to set out the  share of the respondent father and after great delay respect this trial the  earl at length waive it by admit the land to be hold in capite but then he  insist on another point videlicet the term of year and thereupon the court  give he leave to amend his bill that it be now fortyone year since the  respondent far file his bill and above thirtysix year since a absolute decree  be make and a commission for the division and allotment of the estate execute  and upon exception take to that allotment it be by consent of the party and of  the then Lord Brandon refer to arbitrator to set a value upon the share and  interest of the respondent father which by consent also be to be pay he and  therefore it be insist that this reference be submit to the justice of the  decree and a waiver of all objection to the title thereby establish and ought  effectual to bind the appellant as claim both under the earl and Lord Brandon  but suppose the appellant at liberty to dispute the point make by their appeal  it be on behalf of the respondent contend that sir Edward Fitton be lady be  dead without issue he be by law at the time of make his will seize in fee of  the whole estate so that the earl can take only as devisee for the will  contain no reference to the deed of settlement can not be construe to operate  as a appointment on the contrary all former settlement be thereby express  revoke but if the will have refer to the settlement yet on account of the  tenure in capite it be undoubted void as to a three part and such three part  descend to the testator heir at law that though as the settlement be state in  the earl answer there do not appear to be any declaration of the trust of the  two year term yet it be reasonable to suppose that they be raise for make  provision for the young child of the marriage and be afterward to attend the  inheritance for otherwise the subsequent use to the issue of that marriage  will in effect be thereby defeat and as sir Edward die without issue it be  apprehend that even if no use be declare of these term by the settlement they  can redound only to the benefit of those who have the inheritance for all  which reason and as this matter have undergo so long and expensive a  litigation and have be brown so repeat determine against the appellant and  those under who they claim it be hope that the decree will be affirm and the  present appeal dismiss with cost accord after hear counsel on this appeal it  be order and adjudge that the same shall be dismiss and the several decree  therein complain of affirm jour vol p portion