brown case henry Newburgh appellant brockhill Newburgh respondent that August  a by will give a particular part of his estate to his second son but upon  condition that if by the death of his elder brother he shall come to the  possession of the estate devise to he then he shall relinquish the particular  estate so devise to h his young brother on the death of the elder brother the  second become entitle to his estate but it be encumber hold that this  condition can not take place until all the encumbrance be satisfy Thomas  Newburgh esquire be tenant by the courtesy of a moiety of the manor of  Ballyhaise in the county of cavan in Ireland in right of his first wife mary  by who he have issue two son namely Thomas and the respondent and by his  second wife Letitia he have issue the appellant and two other son and be seize  of other land in England and Ireland he make his will on the that of may and  thereby give to his second son the respondent and his heir all the estate of  inheritance which brown er p he have in the parish of Highworth in the county  of wilts charge with a annuity of pound per and to his wife Letitia for her  life then come the follow clause videlicet I also give and bequeathe to the  say brockhill Newburgh the two pole of land call Mullahchroghrey and  Cullakendes in the county of cavan to he and his heir for ever provide always  and it be my will and pleasure that if the estate of Ballyhaise shall fall to  the say brockhill by the death of his brother that then he shall quit and  relinquish his interest hereby grant to he of the say two pole together with  all improvement he shall make thereon unto his young brother Henrv Newburgh to  who I do give the two pole of trough and Nedea and the three pottle of  Drumanarack as also the chief rend of the pole of Carrivillis be pound per and  as also all the freehold I have purchase in the manor of Ballyhaise all which  I do hereby give and bequeathe to he and his heir forever the testator then  give other land to his two young son by his second wife and to their  respective heir and will that if any of his four young son shall die without  issue then the estate thereby devise to they shall be equal divide among the  survivor soon afterward the testator die whereupon the moiety of the manor of  Ballyhaise descend to his old son Thomas as heir of his mother this Thomas  afterward make his will date the that of April and thereby give to each of his  two sister pound per and for their respective life and after their death he  direct pound apiece to be divide among their daughter at their age of  twentyone or marriage he then give several other pecuniary legacy and a  rentcharge of pound per and out of the estate of Ballyhaise to the minister  and churchwarden of the parish of Ballyhaise for ever all the rest of his  personal estate he give to brown his brother the respondent and also his real  estate in Essex and ken to hold to he his heir and executor for ever subject  nevertheless to the payment of all such debt and legacy as he owe or have by  his say will bequeathe to any person in England and as to his estate in the  county of cavan be the moiety of the manor of Ballyhaise he give the same to  his brother George Vaughan and his heir to the intent that with the accrueing  profit thereof he shall pay and discharge all his debt and the several legacy  therein mention then follow this clause videlicet but in regard my brother  Vaughan life a great distance from my concern I do therefore desire of he if  he think fit to employ and intrust my say brother brockhill Newburgh in  receive the rend and pay the debt and legacy allow he three shilling in the  pound for and in lieu of his pain and all charge he shall be at therein out of  the profit of the say estate for all debt and legacy he shall pay as aforesaid  it be also the further intent and meaning of these present that so soon as the  say debt and legacy be satisfy and discharge videlicet such as be immediate  Payable by a reception of the profit of the say estate or otherwise that then  my say brother Vaughan and his heir shall and will by good conveyance in the  law such as the counsel of my say brother brockhill shall advice convey assure  and make over unto the say brockhill and his heir unto his and their own  proper use and behoof all the estate right title and interest hereby grant to  he the say George Vaughan and his heir in the say land and estate in the  county of cavan aforesaid still subject nevertheless to all debt or legacy  herein mention and not immediate Payable and to pay all my debt and legacy  with my personal estate so far as it will go the testator soon afterward die  and the respondent who he appoint sole executor of his will duly prove the  same by indenture of lease and release date the that and that of February Mr  Vaughan convey the moiety of Ballyhaise to the respondent in fee subject to  the payment and upon the trust of his brother will and the respondent covenant  to pay perform and execute the same and to indemnify Vaughan from all suit and  charge by reason of the say trust the respondent have pay or be liable to pay  about pound with which his say brother have charge the estate of Ballyhaise  though the yearly rend of it at his brother death do not exceed pound subject  to a crownrent of pound S and his personal estate do not amount to more than  pound the estate of Mullahchroghrey and Cullakendes be also of small value not  above pound per and but the respondent have lie out in last improvement  thereon more than pound and the estate in brown er p Essex and ken be mortgage  or otherwise encumber to more than their value in Michaelmas term the  appellant by his guardian exhibit his bill against the respondent in the court  of chancery in Ireland to have possession of the two pole of brown  Mullahchroghrey and Cullakendes and for a account of the profit thereof from  the death of the last testator which happen in the year and also for a  conveyance thereof to he and his heir on the that of February the cause be  hear when the court declare that the estate of Ballyhaise be to have come  clear to the defendant and therefore refer it to a master to examine and state  what be the debt and legacy leave by Thomas the son charge on the say estate  and land of Ballyhaise and what be the amount of his personal estate and upon  the come in of the master report such further order shall be make as shall be  just from this decree the plaintiff appeal insist I Jekyll e Northey that the  intent of his father will be that as soon as Ballyhaise shall come to the  respondent by the death of Thomas his brother without issue or without make  any disposition thereof he shall then relinquish his right to the two pole of  Mullahcroghrey and Cullakendes to the appellant and that by a plain and  reasonable construction this estate of Ballyhaise may be say to fall to the  respondent as soon as the debt and legacy to which the same be subject be  discharge that the respondent ought therefore to have be decree to account for  the rend and profit of Ballyhaise and of the estate in England devise to he by  his brother will as well as for his personal estate in order to satisfy the  debt and legacy charge on Ballyhaise and so soon as they shall be discharge to  convey the say two pole to the appellant and his heir on the other side it be  contend n Lechmere S Cowper that the estate of Ballyhaise do not descend to  the respondent as heir of his brother Thomas in which case only the executory  devise of these two pole to the appellant be to take place that the debt and  legacy charge by Thomas the son on Ballyhaise which the respondent have pay  and be liable to pay amount to the full value of that estate and more than  double the inheritance of the two pole as they be at Thomas death and it be  manifest the intent of Thomas the father that Ballyhaise shall come clear to  the respondent last that the appellant title be proper triable at law as it  depend mere upon the construction of the devise in the father will and there  be no equitable circumstance in the case to change or alter such legal  construction accord after hear counsel on this appeal it be order and adjudge  that the same shall be dismiss and the decree therein complain of affirm jour  vol p