case earl of kerry appellant Lord viscount Fitzmaurice respondent march Mews  dig twelve a on his marriage settle land to the use of himself for life  remainder to his wife for her jointure remainder to the first and other son of  the marriage in tail male reserve to himself a power of charge the estate with  pound for young child or the payment of debt and covenant to lie out pound  part of the wife portion in the purchase of land to be settle to the same use  the pound be not lie out after the old son of a come of age it be agree in  consideration of his advance pound for the purchase of a commission in the  army for the son to make a new settlement more beneficial for the young child  accord a settlement be make whereby the land be limit to the former use but a  be empower to charger pound for each of his young child and his covenant to  lie out the pound be release on a bill be file to set aside this subsequent  settlement and to have the pound lie out pursuant to the covenant the court  dismiss the bill but without cost William Lord kerry the appellant great  grandfather by article date that of December between himself and Thomas  Fitzmaurice his old son of the one part and Elizabeth lady Shelburne Charles  Lord Shelburne and Ann petty of the other part in consideration of a marriage  then intend between the say Thomas Fitzmaurice and Ann petty and of a portion  of pound agree to be pay with her covenant before the saint of June then next  to convey all his manor land and premise to the use of himself and his heir  till the marriage and afterward as to the town and land of Listowhill  Dromlegagh bally Mac jordan Cregane and several other denomination therein  particular mention situate in the barony of Clanmorris and Iraghty Connor in  the county of kerry to the use of the say Thomas for life remainder to the use  of the say Ann for life as her jointure and in lieu of dower and as to all  other the premise to himself for life remainder to the use of the say Thomas  for brown life remainder to trustee brown er p to support contingent remainder  and after the death of the say Lord William Thomas and Ann the whole to the  use of the first and other son of the say marriage in tail male with diverse  remainder over with a power to Lord William to charge any sum not exceed pound  for his young child or payment of his debts Also a power to Thomas to charge  pound for his young child with such yearly maintenance for they as he shall  think fit not exceed pound a year to each add pound per and as a jointure to  any other wife and it be agree that Lord and lady Shelburne shall before the  that of march then next pay pound part of the say portion to trustee to be lie  out in the purchase of land of inheritance or on mortgage till such purchase  and that the land so purchase shall be convey and the interest of the say  pound pay to the say Thomas for life remainder to the say Ann for life  remainder to the first and other son of the say marriage in tail male  remainder to the daughter in tail remainder to the right heir of the say  Thomas the marriage soon afterward take effect and by indenture of lease and  release date the that and that of march Lord William and Thomas his son in  consideration of the marriage and in pursuance of the article convey all the  land therein and in the article mention to the several use therein express and  by this settlement a term of year be limit to trustee from the death of the  say Thomas upon trust to raise pound for the daughter and young son of the  marriage with pound a year for their maintenance in the mean time and power be  reserve to Lord William by deed or will to charge any sum not exceed pound for  his young child or for payment of debt by indenture date the that of January  Lord William in execution of this power demise several of the land in  settlement to trustee for year to commence upon his death upon trust to raise  and pay to his second son William pound and in the meantime pound per and for  his maintenance soon afterward Lord William die leave the say Thomas his old  son who thereupon become baron and afterward earl of kerry and entitle to the  whole estate as tenant for life with remainder to his first and other son in  tail male and in October he pay his brother William the say pound with  interest to the amount of near pound more earl Thomas have issue by the lady  Ann his wife William his old son Thomas his second son and the respondent his  three son and three daughter Ann Arabella and Charlotte and in he marry his  daughter Ann to sir Maurice Crosbie and give her a portion of pound out of his  own pocket and in send his old son William then about to Eton college and  there expend on he pound a year for five year and from thence in remove he to  Oxford where he remain at a expense of pound a year till the end of when he  grow profuse brown neglect his study and at last quit the university without  his father consent be afterward of age and desirous of go into the army he  prevail upon Lord Cadogan a near relation of his to press his father to  purchase for he a company in the guard but as earl Thomas have just give his  daughter Ann a portion which take away all his ready money and have four young  child unprovide for and as the income of his estate do not then exceed pound  per and his lordship for some time refuse to comply but it be propose that  upon such purchase the family estate shall be new settle and particular that  in regard the estate have since advance from about pound to pound a year and  be likely to rise much high the provision for the earl unmarried young child  shall be enlarge and that William the old son shall be make tenant for life  and in consideration of a mansionhouse office garden deerpark and other  improvement make on the estate by the earl he shall be discharge from his  agreement for lie out the pound he be on these term prevail upon to pay pound  for the purchase of the say company and accord by indenture of lease and  release date the that and that of may between earl Thomas and his say son  William of the first part sir Thomas vesey bishop of Ossory and Thomas burgh  Esq of the second part Robert doyne and John Pratt esqr of the three part and  Samson Cox and Marcus Dowley esqr of the four part in consideration of the say  pound and for settle the premise in the name and blood of the family and for  make brown er p a further provision for earl Thomas young child etcetera the  earl and his son William convey the premise mention in the article of and the  settlement of to the bishop and Mr burgh and their heir to the use of earl  Thomas for life without impeachment of waste remainder as to part to the say  Ann his lady for life remainder as to part to the use of the say Robert doyne  and John Pratt for year for raise any sum not exceed pound apiece as earl  Thomas shall appoint for the portion of his young son and daughter to be pay  they by such proportion and at such time as he shall by deed or will direct  and for want thereof then the say son and daughter to have pound apiece at  their age of and as to other part of the premise videlicet Listowhill and the  commons thereof Dromlegagh bally Mac jordan Banemore Ballygarott beal and  Pullogh to the use of the say Robert doyne and John Pratt their executor and  assign for two several term of year to commence as to part from the death of  earl Thomas and as to the rest from the death of he and his lady upon trust to  permit all person to who earl Thomas shall sell any of the wood timber or  underwood thereon to sell and carry the same away and subject to these several  term and to the jointure of lady kerry the whole estate be limit to the use of  the say William for life remainder to his first and other son in tail male  with remainder over to Thomas and John brown Fitzmaurice the second and three  son of earl Thomas successive and to their first and other son in tail male  remainder to the right heir of earl Thomas with power to the say William and  his brother respective when in actual seize by deed or will to settle jointure  not exceed pound a year and to make lease and a proviso for extinguish such  power of settle jointure if either of they shall in the lifetime of earl  Thomas marry without his consent under his hand and seal and after recite that  earl Thomas have expend great sum in building and furnish a very large  mansionhouse etcetera and make other improvement at Lixnaw and have wall in a  park and garden adjoin and that pound be by the article of agree to be lie out  in a purchase or at interest the say William in consideration of those  improvement and of the pound pay he as aforesaid do for himself his heir  executor etcetera release to earl Thomas his heir executor etcetera and to the  heir executor etcetera of Lord and lady Shelburne all claim and demand to the  say pound and to all land or hereditament which by the say article be intend  to have be purchase therewith and covenant that neither he or his heir shall  commence any action or suit upon the say article concern the say pound in  Trinity term earl Thomas and his son William in pursuance of a covenant in  this last settlement join in a common recovery and soon after Thomas  Fitzmaurice the second son die a infant and without issue August earl Thomas  marry his daughter Arabella with Arthur Denny Esq who circumstance require  ready money for the payment of his and his father creditor the earl advance  for that purpose pound as his say daughter marriageportion instead of secure  the pound which he have power to charge for her on his estate by virtue of the  settlement of but intend to keep that charge on foot for the benefit of the  respondent his young son by indenture date by mistake the that of April  instead of the that of April between the earl of the one part and the  respondent of the other recite that the earl have some time before pay his say  son pound in part of the portion he design for he and that his say son have  lend he the say pound to be pay as a portion with his say daughter Arabella  and that the earl be by the settlement of empower to charge pound apiece for  the portion of his young child the earl covenant that he will by deed or will  secure the say pound to his say son either by leave the same as a charge  affect the premise which by the say settlement he be empower to encumber for  the portion of his say daughter Arabella or any other of his child or many  other manner as counsel shall advice and the respondent covenant not to demand  any interest which shall grow due for the money during the earl life the earl  also intend the wood grow on his estate as a further provision for the  respondent by deed date the d of brown June recite the settlement of and his  power thereby over the woodland in consideration of pound brown er p pay he by  the respondent and in execution of his say power and in order to make a  further provision for he the earl convey to he all the wood on the land of  Dromlegagh bally Mac jordan beal Listowhill Cleverough and Banemore with  liberty during the term of year thereof limit to doyne and Pratt to fall and  carry away the same earl Thomas by his will date the d of April recite that he  have by deed grant to the respondent some of his wood but not then have a  opportunity of see what particular wood he have grant he do for great  certainty bequeathe to he all his wood and underwood on Dromlegagh bally Mac  jordan Broomederaugh Tullamore and Pullogh Agathroghis Cleaveragh Listowhill  Banemore and Ballygarrott beal and Drummerrin which denomination comprehend  all the woodland on the estate and he thereby appoint pound apiece for the  respondent and his sister lady Charlotte who have intermarry with sir John  Colthurst and charge the say portion on the land Chargeable therewith by the  settlement of and make the respondent sole executor and residuary legatee on  the death of earl Thomas which happen in march the respondent by force of the  say deed of the that of April and of the earl will become entitle to lady  arabella pound with interest from the testator death and by force of the deed  of the d of June and of the say will he also become entitle to all the wood on  the estate comprise in the say trust term of year and thereupon the say  William then earl of kerry by virtue of the settlement of enter upon and hold  the family estate to the time of his death in April without have once either  in his father lifetime or afterward complain of that settlement but on the  contrary comply therewith in all respect and particular in the follow  remarkable instances First be about to marry in his father lifetime without  his consent he by article previous thereto date the that of June recite the  settlement of and the power to he thereby reserve to settle a jointure when in  possession covenant to settle pound a year on his intend wife for her  jointure Secondly after his father death he by a settlement date the that and  that of August in execution of the say article and power secure to his lady a  part of the estate of pound a year for her life Thirdly it be apprehend that  as earl William have marry without consent the say jointure be not warrant by  the settlement of he obtain a private act of parliament in Ireland whereby  recite the article of and the covenant for lie out the pound and that the same  have not be lie out and that earl William have by his father agree to advance  pound to purchase for he a commission in the army be induce to come into the  say settlement of and for the reason therein mention to release earl Thomas  and Lord brown and lady Shelburne from the say pound and also recite the say  settlement of and particular the clause for enable earl Thomas to charge the  estate with portion of pound apiece for his daughter and young son and for  enable the son to settle jointure and that earl William have marry without  consent and that therefore the say settlement upon his lady can not be render  effectual without the aid of parliament it be enact that all deed then execute  or after to be execute and the will make or to be make by earl William  pursuant to the say power in the settlement of shall be valid as if he have  marry with consent and have then be in possession and his father dead any  thing in that settlement to the contrary notwithstanding to which act of  parliament the appellant by his uncle and next friend on his mother side and  the respondent and his two son be consenting Fourthly earl William after the  death of his father pay the interest of the say portion of pound apiece  appoint for the lady Charlotte Colthurst and the respondent as aforesaid And  last earl William by his will recite the settlement of and his power of charge  a jointure of pound a year for his wife and pound for his young child in  execution of those power confirm the say jointure of pound a year by he before  settle on his lady and charge the say estate with pound for his daughter the  lady Ann in April earl William die leave issue the appellant his only son and  the say lady Ann his only daughter both infant and thereupon the countess  brown er p of kerry his widow who he have by his will appoint guardian of his  son during her viduity and sole executrix by virtue thereof possess herself of  the earl real and personal estate the countess refuse to pay the respondent  the pound provide by the settlement of for the lady Arabella and agree to be  secure to he as aforesaid or the interest thereof or to suffer he to cut down  the wood grow on two parcel of land call Cregane and Ballygonloge claim by he  as subdenominations or part of the land call Bromlegagh bally Mac jordan and  Listowhill comprise in the say term of year the respondent in Hilary term file  his bill in the court of exchequer in Ireland against the appellant the say  countess as his guardian and as executrix of earl William will the lady  Arabella Denny the reverend Barry Denny administrator of Arthur Denny her  decease husband and Henry Hargrave a administrator of John Pratt the survive  trustee of the several term for payment of the say pound and interest from the  death of earl Thomas pray that the same may be a charge in the respondent  favour on the land by the settlement of make Chargeable therewith and also to  be decree the wood which by the true intent of that settlement be comprise in  the say term of year with power to cut down and dispose thereof during those  term and for a injunction in the nature of a writ of brown estrepment to stop  the cut of the say wood and for general relief the appellant and also the  countess by their answer insist that by the settlement of earl Thomas have but  a bare power to charge the land with pound for the lady Arabella and never do  any act that can amount to a execution of that power in her favour and that  the deed of the that of April neither do or ought to induce any charge upon  the land comprise in the year term and after set forth the article of and  settlement of and the covenant for lie out the pound the appellant allege that  earl Thomas have deny his son the appellant father a reasonable maintenance  and that take advantage of his distress he have force he into the settlement  of and therefore insist that the say settlement ought to receive the strict  construction he also insist that the respondent be not entitle to the wood on  Cregane and Ballygonloge as be grand denomination and not subdenominations or  comprise in the say term of year the other defendant have answer and the cause  be at issue witness be examine on both side those for the respondent full  prove the settlement of the payment of pound by earl Thomas to Arthur Denny as  the portion of lady Arabella the deed of the that of April the declare  intention of earl Thomas to give the respondent the pound provide by the  settlement of for lady Arabella in lieu of the money by he advance for her  portion and that the parcel of woodland call Cregane and Ballygonloge be  subdenominations and part of some of the capital or grand denomination  comprise in the settlement of the appellant examine ten witness to prove that  Cregane and Ballygonloge be capital and not subdenominations but of these  witness the first three upon be cross examine appear to have make at the  instance of the appellant agent and one of his witness extrajudicial affidavit  which the agent afterward show they before their examination in the cause for  their instruction and four other of the witness appear by their own confession  to be of the low and most indigent class pen this cause the appellant by his  next friend file a cross bill against the respondent to which he make his  mother as executrix of earl William a party and therein charge the article of  the settlement of and and all the other matter contain in his answer and after  set forth the covenant for lie out the pound in the purchase of land charge  that earl Thomas have prevail on Lord and lady Shelburne to pay the same to he  upon assurance that he will lie the same out in a purchase and that he have  accord soon after make several purchase in the county of kerry and  elsewhere That no house be build by earl Thomas but only a small addition to a  old one brown that earl Thomas have pay with his daughter Arabella a portion  of pound the say Arthur Denny and Edward Denny his father or one of they  release the brown er p pound which the earl have power to raise by the  settlement of for lady arabella portion and that the say Edward and Arthur  Denny and lady Arabella or some of they exonerate the estate therefrom That  after the marriage earl Thomas in order to revive the say charge on the estate  have in or perfect a appointment of the say pound to the respondent which  though execute several month after the say release be antedated That if the  say pound have be lie out in land earl William will have be tenant in tail  thereof with remainder in tail to his brother Thomas and the respondent  successive with a remainder in tail to the lady Ann Arabella and Charlotte and  that the say pound be at the time of perfect the settlement of and still ought  to be consider as land entail accord and therefore that earl William release  can not take away the appellant right to have a sum of money invest in land  equal to the value of pound lie out at or in a reasonable time after earl  Thomas receive the same That earl Thomas die possess of a great personal  fortune of which the respondent possess himself as his executor and therefore  this cross bill pray that the originate and cross cause may come on to be hear  together and that the respondent may be compel to purchase land of inheritance  equal in value to pound lie out when the say sum be pay to earl Thomas and for  general relief the respondent by his answer deny his belief of the pound have  be pay to earl Thomas upon any assurance of his lie the same out in a purchase  and say that as no notice be take in the settlement of of the agreement in the  article for lie out the say pound in land he the respondent think it probable  and therefore believe that the say agreement be waive or vary by all party  interest therein before earl Thomas marriage That earl William have for a  valuable consideration and without fraud or compulsion execute the settlement  of and thereby release his right to the pound and all benefit of the agreement  for lie the same out in land and that earl Thomas have then build a house and  office at Lixnaw and afterward make addition thereto and have make a deerpark  and wall in large garden and make great plantation of fruit and forest tree  and several other improvement on the estate by which and by oblige his tenant  to build plant and make improvement the land comprise in the settlement be  great advance in value of which the appellant from the death of his father  have the benefit that the rend in amount to more than pound S d but the estate  be now let for near pound a year He insist that earl William have power by  fine to bar his issue of the benefit of the intend purchase in case the same  have be make and of all right to the say pound and the land to be therewith  purchase and that as the money brown be not lie out but release by earl  William by the settlement of for pound actual advance for he by his father and  as the common recovery be suffer pursuant to that settlement the article of  and settlement of be thereby total bar and extinguish and as earl Thomas and  earl William will have have a absolute power over the land in case the same  have be purchase the appellant ought not to be allow to impeach the say  release which the respondent insist upon in bar of the relief seek by the  appellant several witness be examine on both side in the cross cause who all  agree that earl Thomas have be at great expense in building and improve his  estate and that he never cut any of his wood even for his own use but buy all  he have occasion for both cause come on to be hear on the that of November  when the court be please to decree that the respondent be entitle to and shall  recover the pound and interest from the death of earl Thomas and that the same  shall stand a charge upon the town and land comprise in the term of year  pursuant to the settlement of on account of the portion provide for the lady  Arabella and direct a account thereof accord and that if within twelve  calendar month from the time of the report be confirm the say principal and  interest and the grow interest shall not be pay to the respondent then the  same shall be raise by sale or mortgage of the residue of the say term and  that all necessary party shall join in the conveyance and it be further decree  that the respondent and appellant shall at the next assize for the county of  kerry try the brown er p follow issue videlicet whether the land of Cregane  and Ballygonloge or either and which of they be grand denomination or  subdenominations or part of the town and land of bally Mac jordan Drumlegagh  and Listowhill or of any and which of they and that the appellant cross bill  shall be dismiss without cost from this decree the appellant think proper to  appeal insist t clarke a forester that the settlement of may be obtain from  earl William his father within two month after he come of age when he be  destitute of subsistence and under the influence of parental authority and be  in the nature of it extreme hard and unreasonable for by the settlement of  make in pursuance of the prior article earl William be tenant in tail of the  whole estate subject only to a charge of pound for his father and mother young  child whereas by the settlement of he be make to release the pound which be to  be lie out in land of which he be to be tenant in tail as well as of the rest  of the estate his interest in tail be reduce to a mere tenancy for life the  estate be subject to provision of pound apiece for every young child of earl  Thomas and his wife of who there be no less than four then live and earl  Thomas be invest with a power of sell all the wood and timber grow on the  estate brown that this settlement be submit to in consideration only of pound  lie out in a commission for the son immediate support and that a settlement  obtain by a father from his son upon such hard and unequal condition deserve  no favour but every act do under it shall be construe rigorous and strict and  receive no aid or assistance in a court of equity that earl Thomas pay lady  arabella portion either out of his own money or with what he may borrow from  the respondent will not of itself and without any further act have substitute  he in her place so as to make he be consider as a encumbrancer upon the estate  and the deed of the that of April be not such a further act as make or  continue her portion a actual charge on the land but be only a covenant to do  a future act for secure the pound say to have be lend by the respondent and  have earl Thomas intent be to charge the estate at all event with the pound  portion to lady Arabella it be impossible to assign a reason why it be not do  by he at the time of make this deed it be as easy to do it then as to enter  into such a covenant but this prove that he only mean to reserve to himself  the power of charge or not charge the estate with lady arabella fortune accord  as the circumstance of his affair and family may require and as he do not  subsequent act to show his intent of charge the estate therewith it ought not  to be raise upon the appellant who be sufficient prejudice by the execution of  the large power confer on earl Thomas by the settlement of and especial in  favour of the respondent who either do or do not advance the pound for lady  Arabella if the latter the covenant be mere voluntary and if the former he be  more than ample satisfy by the large bequest to he in earl Thomas will that a  release of the d of October to earl Thomas from Mr Denny of all demand upon  the earl and his heir and their land and tenement and the earl will of the d  of April afford further proof that he do not intend lady arabella portion  shall remain a charge upon the estate for have he so mean he will instead of a  release of the portion have take a assignment of it from Mr Denny and his will  recite the power give to he by the settlement of the death of Thomas one of  his young child and lady arabella marriage and then only charge the estate  with pound portion for the respondent without take any notice of lady arabella  portion plain prove that he have then in view and contemplation as well the  settlement as the estate of his family with relation thereto and yet he only  charge the estate with pound for the respondent fortune and as to the fortune  of the young child the will put his daughter arabella marriage upon the same  foot with his son Thomas death and therefore charge no portion for either of  they these two act subsequent to the deed of the that of April evident show  that earl Thomas do not intend lady arabella fortune shall be raise out of the  estate brown it be also contend that the court shall not have direct a issue  as to Cregane and Ballogonloge but as to they shall have dismiss the  respondent bill for they be by express name and as distinct from the other  denomination of bally Mac jordan Drumlegah and Listowill grant by the  settlement brown er p of to trustee for the use therein declare and yet be  neither by express name or by general word comprise in either of the year term  and it be very hard to say that though they be keep separate and distinct in  the grant part of the deed they shall in the other part for raise the term be  include within and consider as part of other denomination from which they be  clear separate in the grant part thus the word Drumlegah bally Mac jordan and  Listowill must be take more large in one part of the deed than the other which  be contrary to all rule of construction and may probable work a wrong by bring  within these term what earl William never think or intend to be comprise  therein since upon read the deed of no body will imagine Cregane and  Ballogonloge to be comprise in the term they be express mention in the grant  part and no sort of notice take of they in the term that the write agreement  of the party be the best interpreter of their intent without recur to  extrinsic fact for extend beyond their natural import the word of a grant  which have already have its proper and full effect the respondent admit by his  answer to the appellant cross bill that he have receive pound for the sale of  part of the wood grow on the appellant estate last that the release of the  pound comprise in the settlement of have no reasonable consideration for its  support and be liable to the same objection as the rest of that settlement and  this sum be pay to earl Thomas and stipulate to be lie out in land can not be  affect by the fine and recovery suffer by he and earl William so as to bar the  appellant who claim as issue in tail the land to be purchase with that pound  and therefore it be hope that the decree complain of will be reverse the  original bill dismiss and such order and decree make on the cross bill as  shall be agreeable to the rule of equity and justice on the other side it be  say d rider W Murray that there be no proof nor even the slight presumption of  earl William have be bring into the settlement of by fraud surprise distress  or any other undue mean and that from the time of execute that settlement to  his father death in he never seek to be relieve against it or ever complain of  its be any hardship upon he that his marriage article the settle a jointure  upon his lady in pursuance of those article and in execution of his power  under the settlement of the act of parliament and his last will all which  except the article be subsequent to the death of his father be so many act  express admit the validity of that settlement and so many testimony of his  free and unconstrained submission thereto that after a acquiescence of brown  year and so many repeat act confirm the settlement of earl William can not be  he now live be relieve by a court of equity against that settlement upon the  mere point of inequality in the bargain or any other circumstance appear in  this cause and if he who be tenant in tail and who estate tail be by the  settlement of and the recovery then suffer turn into a bare estate for life  whereby he be manifest a loser can not be relieve much less be the appellant  entitle to relief against this settlement and recovery who be clear a gainer  by it as it effectual secure to he the reversion of a large estate which under  the old settlement earl Thomas will have have it in his power to deprive he of  that the small provision make by the article of and settlement of for the  young child of a ancient and noble family the advance value of the estate from  to and the prospect of its further advance which have actual happen it be now  near pound a year require some further provision for the young child a  provision in some degree proportion to their rank and quality and the value of  the family estate and that part of the settlement whereby the estate be secure  to the issue of earl William even against their own possible act be a wise and  prudent disposition be calculate to secure the estate to support and go along  with the honour of the family and therefore ought to receive all possible  countenance and protection from a court of equity that the bargain between  earl Thomas and his son can not in any view of it be call a hard one the  additional charge induce on the estate for young child by the settlement of be  only pound Payable on the death of earl Thomas who live to the year in  consideration whereof earl Thomas after have give his son a most liberal and  expensive education make a most honourable brown er p provision for he by the  purchase of a company in the guard at the expense of pound lie out upward of  year before his death and the great sum expend by he in the improvement of the  estate by which great part of it be double in its value seem to be a  sufficient consideration for release the pound agree to be lie out in a  purchase if any consideration have be necessary to render such a release  effectual beside the pound pay by earl Thomas in discharge of the pound  encumbrance due to his brother William though not mention as a consideration  in the settlement of must be consider as a additional consideration to earl  William for come into that settlement earl Thomas be under no kind of  obligation to discharge that sum and as the term of year grant by Lord William  in for secure this pound be still subsist the respondent as executor of his  father will be entitle to that sum if his father title to it be not extinguish  by the settlement of that the value of the wood be inconsiderable in the year  and the present value be owe to the great care and expense which earl Thomas  be at in preserve they under the settlement of he may at any time during brown  his life have dispose of all these wood as he think proper and be under no  necessity of preserve the young growth so that the difference to he under the  two settlement respect the wood be only this that the settlement of continue  to his executor that property in and power over they which he himself have in  his lifetime as to the pound mention in the article of it have neither be lie  out in a purchase nor pay to or vest in trustee or otherwise lie out pursuant  to those article and the subsequent settlement be quite silent about the lie  out that money and even as to the agreement for lie it out it afford a strong  presumptive proof that the agreement be rescind or waive by the party before  earl Thomas marriage that there be no other proof of the payment of this pound  to earl Thomas than the respondent admission in his answer that he believe the  same be pay have see a account of his mother write wherein pound thereof be  mention to have be apply in October in discharge of his uncle William portion  of pound and interest charge on the estate by the settlement of which  application so far as the principal at least be virtual a performance of the  agreement touch the pound since the extinguishment of a encumbrance be equal  beneficial to earl Thomas successor as the purchase of a new estate will have  be for if this pound have be lie out in a purchase a fine levy thereof by earl  William will have be sufficient to bar his issue in consequence of which it be  apprehend that earl William release of the covenant to make such purchase and  the benefit thereof be a sufficient bar in a court of equity to the issue in  tail though not to the remainder as much as if the immediate remainder in fee  have be in earl William that as the old entail be destroy by the settlement  and recovery in and the appellant must now therefore claim under that  settlement a large estate which his grandfather and father may have deprive he  of and give away from he as they think fit a court of equity ought never to  suffer he to dispute the validity of the release of the pound contain in a  settlement of which he enjoy the benefit for whoever will claim under one part  of a deed shall not disturb or disappoint any other part of the same  instrument and therefore the appellant ought either to give up his claim to  the covenant or quit his pretention to the estate With respect to the pound  original design for the portion of lady Arabella Denny earl Thomas have by the  settlement of a power by deed or will to distribute the money charge on his  estate for the portion of his young child in what proportion he think proper  so that although he can not distribute among his three young child the  respondent and his two sister more than pound yet he be at liberty to give the  whole or what share of it he think proper to any one of they but suppose earl  Thomas have no such power of distribution yet as he pay lady arabella portion  out of his own pocket and constant declare his brown intention of give the  pound charge on the estate in her favour to the respondent in recompense of  the ready money which he intend for he and which he be oblige to pay away in  part of the portion of lady Arabella and as he manifest such intention soon  after her marriage by the deed of April and as earl Thomas be by the payment  of this portion a purchaser thereof in brown er p equity and may have dispose  of the same in what manner he think proper the respondent be well entitle to  it in equity under the deed and will of his father and though he neglect to  make any charge of the portion of his young child in pursuance of his power  yet by the express word of the settlement of the estate will have remain  charge with pound for each of they and as to that part of the decree direct  the issue it be conceive that as the land of Cregane appear to have be enjoy  as part and parcel of Drumlegagh and bally Mac jordan for upward of threescore  year pass ever since the year or and as Ballygonloge appear by the article of  by old rentroll and by the abundant testimony of credible witness to be part  and parcel of the land of Listowill the respondent be the only person aggrieve  by this order and the appellant have not the least cause to appeal therefrom  after hear counsel on this appeal it be order and adjudge that so much of the  decree therein complain of as direct that a issue at law shall be try whether  the land of Cregane and Ballygonloge or either and which of they be grand  denomination or subdenominations or part and parcel of the town and land of  bally Mac jordan Drumlegagh and Listowill or of a and which of they shall be  reverse and that instead thereof these word shall be insert videlicet whether  the land of Cregane and Ballygonloge or either and which of they be comprise  in the description of the town and land of Listowill Drumlegagh and bally Mac  jordan or any and which of they in the limitation of the term of year create  in the town and land last mention by the indenture of the that of may accord  to the true intent and meaning of the say indenture and it be further order  and adjudge that with this variation the say decree shall be affirm and it be  further order that the say court of exchequer shall give direction for carry  this order and judgement into execution jour vol p