brown case John husband alias pollen a infant by Edward pollen his father and  next friend and the say edward pollen as one of the executor of sir John  husband Bart decease appellant sir John husband Bart the only son and heir of  sir John husband Bart decease and thomas hutton and John LIMBREY Esqs the two  other executor of the say sir John husband respondent that may Mews dig ten I  h have settle his real estate in trust for himself for life and afterward to  such use as he may by deed or will appoint and in default of appointment to  the sole use of the heir of his body by his will notice the settlement after  give several legacy devise all the rest of his real and personal estate to I p  who be not his heir and the heir male of his body etcetera by lease and  release bear date subsequent to the will I h convey the real estate to a  trustee to the use of himself for life and afterward to such use as he shall  by deed or will appoint with power to the trustee to raise money for payment  of debt and legacy and for default of appointment in trust for I h his heir  and assign I h die without alter the will or make any other appointment as to  the real estate hold that this latter conveyance be a revocation of the will  and let in the heir at law of I r under the trust of that conveyance decree of  Lord keeper Harcourt affirm except as to cost see post case bro p c Eq can ab  can viner vol p can vol p can abridge by the name of pollen v husband by  indenture of lease and release date the that and that of July sir John husband  the father convey the manor of Ipsley and other land to palmer Welsh and  Littleton and their heir in trust that he may take the rend and profit during  his life and make such estate grant and conveyance of all or any part of the  premise as he by any write under his hand and seal or by his last will in  write shall direct and appoint and as to such part of the premise as shall not  be otherwise appoint in trust and for the sole use of the heir of the body of  the say sir John and for default of such issue to the use of his brother  Tevere husband and the heir male of his body remainder to the use of sir John  right heir for ever brown this settlement be intend as a provision for sir  John only son the respondent and for the better enable sir John the father to  raise portion for his daughter continue unaltered and without any appointment  for several year but upon the marriage of the appellant Edward with jane the  old daughter of sir John part of the premise be convey to trustee by way of  mortgage for secure the payment of pound which accord to their marriage  article be to be lie out in the purchase of land and in which land the  appellant Edward be to have a estate or interest for his life only on the that  of February sir John the father make his will all of his own handwriting and  thereby after take notice of the settlement and that his son have forfeit his  favour by marry against his consent he give he a annuity of pound per annum  for his life and after charge his estate with the payment of his debt and  legacy the testator devise all his real and personal estate to his grandson  the brown er p appellant John and the heir male of his body on condition that  he take upon he the name of husband with diverse remainder over and the  ultimate remainder in fee to his own right heir and he appoint the appellant  Edward together with the respondent Hutton and Limbrey executor of his say  will but the testator do not publish his will on the day it bear date or for  some month afterward by other indenture of lease and release date the saint of  August and saint of September sir John the father together with palmer the  survive trustee under the former settlement convey the premise to the  respondent Hutton his heir and assign to the use of sir John himself for his  life without impeachment of waste and after his decease upon trust that Mr  Hutton his heir and assign shall make such grant and lease of all or any part  of the premise as sir John by any write or by his last will and testament in  write or any codicil thereto shall appoint and also shall raise such sum of  money as shall be sufficient to pay all his debt funeral expense and legacy  and afterward that Mr Hutton shall stand seize of the premise which shall not  otherwise be appoint in trust for sir John his heir and assign for ever but a  power be reserve to sir John during his life by any deed duly execute or by  his last will in write to revoke alter or change any of the use before declare  and to limit and appoint such other use as to he shall seem meet in February  sir John husband die but it do not appear at what particular time he publish  his will it have however be duly execute and publish be prove by the appellant  Edward alone who together with the other appellant his son soon after exhibit  their bill in chancery against the respondent in order to have the will  establish and the trust thereof execute upon a suggestion that it be publish  on the that October and thereby operate as a appointment of the brown premise  convey to Hutton the respondent sir John also exhibit his cross bill against  the appellant and other insist on his title to his father real estate as heir  at law and to his personal estate as next of kin and therefore pray a account  of those estate that he may be at liberty to redeem the pound mortgage both  these cause be hear before the Lord keeper Harcourt on the that march when his  lordship be please to direct a trial at law upon the follow issue videlicet  whether the will of sir John husband date the that of February be publish or  republish after the saint of September on the that July this issue be try at  guildhall London before the Lord chief justice Trevor when the jury find a  verdict that the will be publish on the that of October but this verdict be  contrary to the opinion of the court the respondent sir John apply for a new  trial and thereupon a new trial be direct upon the same issue at the bar of  the court of common plea before a special jury of the county of Middlesex and  on the saint November this second trial be have accord when the jury to the  satisfaction of the court find a verdict that the will be publish before the  execution of the deed to Hutton soon afterward both cause be set down to be  hear on the equity reserve but upon the appellant apply by petition to enlarge  the time for hear and that they may at the hear be at liberty to move for a  new trial the court be please to enlarge the time but refuse the liberty of  move for a new trial on the that of December the cause be final hear when the  respondent counsel insist upon the last verdict and that the deed to Hutton be  subsequent to the will be a revocation thereof the court think proper to  dismiss the original bill with cost and in the gross cause it be order that  the personal estate of sir John the father shall be first apply in payment of  his debt to exonerate his real estate and that Hutton the trustee shall join  with the plaintiff sir John in a sale of so much of the real estate as will be  sufficient to satisfy the remain debt and the trust in the deed to Hutton and  afterward convey the residue to the plaintiff and his heir and it be further  order that the appellant Edward shall account before a master for what have  come to his hand of sir John Hubands real and personal estate and the cost of  the original cause shall be tax by the master and go in part satisfaction of  the pound mortgage and upon payment of what shall afterward remain due on that  mortgage the defendant Edward pollen be to convey the mortgage premise to the  plaintiff and his heir brown er p from the decree in both these cause and also  from the order make on the application for a new trial the present appeal be  bring and on behalf of the appellant it be say S Cowper n Lechmere that the  brown dismission of the original bill be find on supposition that the  conveyance to Hutton be make after the publication of the will whereas that  the fact be not nor can be full ascertain to the court because there be  verdict against verdict concern it that though the deed shall be admit to be  make after the publication of the will yet it be apprehend that the will be  not thereby revoke or if revoke as a will yet that it ought to enure and  operate as a appointment under the power contain in that deed that the  appellant bill be not only dismiss but Hutton be decree to convey to the  respondent sir John without give the infant appellant a day to show cause  against the decree after he shall come of age and with respect to the  appellant Edward the decree be particular erroneous in oblige he to pay cost  whereas he ought to have have his cost because the testator by his own act  have make it a duty incumbent on he to file a bill for the establishment of  his will that his neglect in do so may have be construe into a breach of trust  and that the whole doubt and difficulty which occasion the suit arise from the  testator own act and management and the appellant Edward be further aggrieve  inasmuch as those cost be order to go towards satisfaction of the pound  mortgage whereas that mortgage be make to trustee and the money thereby secure  be to be lie out in the purchase of land wherein he be to have a interest for  his life only so that it be not either in his power to convey to the  respondent sir John or to compel the trustee so to do on the other side it be  argue t powys I Jekyll that the verdict give at the first trial ought accord  to the evidence to have be give for the respondent and not be so give be much  to the dissatisfaction of the judge who try the cause that therefore another  trial be have at the bar of the court of common plea and the verdict then give  be agreeable to evidence and the opinion of the whole court the consequence  whereof be that the deed of the saint September be a express revocation of the  will and also of all the use and trust mention in the original settlement of  July that the will be now out of the case the infant appellant have no  pretence of title to the land decree and therefore ought not to have any day  to show cause and as to the other appellant his enter upon any part of the  estate not mortgage to he be illegal and unjust and in so do he act as a wrong  doer and not in the execution of any trust and therefore ought to pay cost in  such manner as the same be decree after hear counsel on this appeal it be  order and adjudge that the decree shall be so far reverse as it order payment  of cost in law and equity upon the dismission of the appellant bill and it be  further order that the say decree as to all the other part thereof shall be  affirm jour vol p