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1799.

FLETCHER

v.

TOLLET.

[ *6]

Cook Tollet,) for the term of ninety-nine years, if George Tollet should so long live, în trust to pay George Tollet for his support and maintenance the yearly rent of 80%.; and out of the residue of the rents and profits to pay George Sparrow, his executors, &c. the said sum of 1217. and the interest thereof; and George Tollet also demised and granted unto John Viggars, his executors, &c. all such part or parts of said premises, as then was, or were, or ought to be, or as hereafter should be, separated from the rest of said estate, and said annuity of 150%., and the produce of the monies arising from the sale thereof, subject to the payment of 20007. (which has since been paid to Elizabeth Tollet out of the money arising from the sale of the said annuity of 1507.) and the jointure, which might be made by Cook Tollet upon any woman he might marry, and to any provision for younger children, which he should make by virtue of any power under the said will, to hold said premises and annuity from the death of said Cook Tollet without issue for the term of ninety-nine years, if George Tollet should so long live, in trust to dispose of the rents, issues, and profits, of the said last-mentioned premises to and for the farther securing and paying the debts due and to become due to George Sparrow and John Craddock or either of them, and interest of such debts as should carry interest; and George Tollet thereby also demised and granted all said capital messuage, &c. and all other the lands, tenements, &c. which the testator purchased, as aforesaid, and all testator's estate and equitable interest in reversion of said annuity of 150%. so devised to be sold, as aforesaid, and the money thence arising, to be laid out in the purchase of lands, &c. and also said annuity of 150%. and all and singular the lands, &c. to be purchased with the money arising from the sale thereof, and also all other the messuages, lands, &c. whatsoever of George Tollet, the son, wherein he had or ought to have any estate in possession, reversion, remainder * or expectancy, to hold the same premises from and immediately after the death of George Tollet and Cook Tollet and the survivor of them without issue of their respective bodies (subject to such jointure or jointures as were or should be made in pursuance of said will) unto Abel Haworth since deceased, his executors, &c. for a term of 2000 years, in trust

for

for securing and paying the debts contracted before the date of the said indenture by said George Tollet and the interest; and then in trust for the only use and behoof of said John Craddock, his executors, &c.

It was farther witnessed, that George Tollet directed and appointed, that upon the death of him George Tollet and of Cook Tollet without issue of their respective bodies said Elizabeth Tollet, Joseph Hayward, and William Mount, and the survivors and survivor of them, and his or her heirs, and all and every other person or persons, that should be seised or possessed of said premises, should convey and assign the same and every part thereof unto and to the use of John Craddock, his heirs and assigns; and until such assignment and conveyance should stand and be seised thereof in trust for John Craddock, his heirs and assigns; and that then and from thenceforth, and after all said debts with interest should be fully paid and satisfied, said Abel Haworth, his executors, &c. should stand seised and possessed of all and singular said premises for the remainder of said term of 2000 years in trust for John Craddock, his heirs and assigns, and to attend the inheritance.

George Tollet, the son, by his will, dated the 24th of June, 1726, after making a provision for his wife Elizabeth by way of jointure, and charging 1200l. as a portion for such younger children as he might have by his said wife, which sum was afterwards relinquished by Charles Tollet, the only younger child, appointed his wife and John Craddock executrix and executor; and committed to them the guardianship of his children.

George Tollet, the son, died soon afterwards, leaving George Tollet and Charles Tollet his only children, and Elizabeth, his widow (since also deceased), and also Cook Tollet, who died about July, 1738, without issue, leaving Hannah, his widow, since deceased. George Tollet, the grandson became tenant in tail in possession of all said messuages, lands, &c. limited to his father for life by the will of his grandfather; and upon the death of Cook Tollet without issue he became tenant in tail in possession of all said lands, &c. limited by the will of his grandfather to Cook Tollet; and George Tollet, the grandson (as is alleged,) by his will, dated 22d of January, 1779, after several annuities and legacies willed and devised, that all the rest of his estate real and per

sonal,

1799.

FLETCHER

v.

TOLLET.

[7]

1799.

FLETCHER

v.

TOLLET.

[ *8]

sonal, whereof he should die possessed or entitled unto in reversion, should go unto Charles Tollet, his brother: and desired, that he would be kind to any of their relations, who descended from any brother or sisters of his grandfather; and that if Charles Tollet had no children, the testator wished, he (Charles Tollet) would bequeath what landed estate he inherited from him (the testator) among such relations.

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George Tollet, the grandson, died in 1781, without issue, a bachelor, without having done any act to bar the intails and remainders in said premises comprised and mentioned in the will of the grandfather. Upon his death Charles Tollet became tenant in tail in possession of all the lands, &c. comprised in, and directed to be purchased by, the will of the grandfather. Charles Tollet married Catherine Craddock, the youngest daughter of John Craddock (one of the Defendants); and he died in July 1796, without issue, and without having done any act to bar the intail and remainders; leaving his wife surviving; and having (as alleged) by his will appointed her and his relation George Embury executors; and having appointed and devised certain parts of said premises to his wife for life, and after her death to Embury, his heirs and assigns for ever, and the remainder to Embury his heirs and assigns for ever, upon consideration of his taking the name and arms of Tollet; which he has done. Abel Haworth is dead; and his administrator is the Defendant John Haworth.

The Plaintiffs then deduced their title from John Craddock through his eldest daughter Anastasia Fenton; and stated, that upon the death of Charles Tollet, the jointures having fallen in, the Plaintiffs together with the Defendant Catherine Tollet became respectively entitled to the lands, &c. beforementioned, but the Defendants Catherine Tollet and George Embury Tollet, who upon the death of Charles Tollet entered into possession of all the said lands, refuse to deliver up to the Plaintiff's possession of such parts as they are entitled to, and to account; and in order to justify such refusal, and defeat an ejectment lately brought against Catherine Tollet and the tenants, the Defendants pretend, that by a decree, bearing date the 17th of November, 1753, made in a cause. between Elizabeth Tollet, spinster, daughter of the firstnamed George Tollet, complainant, and said George Tollet,

*

Charles

Charles Tollet, Elizabeth Tollet, widow of George Tollet, grantor in the deed of the 14th of May, 1725, and Hannah Willoughby, widow of Cook Tollet, and William Mount, Defendants, it was ordered, that said Elizabeth Tollet, spinster, and William Mount, the surviving trustees in the will of the first named George Tollet, should convey and settle said testator's real estate, subject to the respective jointures of said Elizabeth Tollet, widow, and Hannah Willoughby, to said last named George Tollet and his heirs; said Charles Tollet, his younger brother, being present in Court and consenting thereto; and that the Master should settle the conveyance, in case the parties should differ; and the Defendants pretend, that a conveyance of said premises was executed in pursuance of said decree to George Tollet, the grandson, in fee; under whose will and the will of said Charles Tollet they claim; and that Plaintiffs have no interest whatever in said premises.

The bill charged, that said decree, in case any such was made, was in a cause, in which neither Plaintiffs, nor any person, under whom they claim, were parties; nor was any notice taken in the pleadings in said cause of said indenture of 14th May, 1725. Plaintiffs insist, that the conveyance so directed was contrary to the will of the first named George Tollet; which limited said estates upon failure of issue of the bodies of his sons George Tollet and Cook Tollet to his said son George Tollet and his heirs for ever; and therefore Plaintiffs, as claiming under said last named George Tollet, the son, by virtue of said deed of 14th May, 1725, are not bound by said decree. The bill further charged, that in case any conveyance has been made in pursuance of said decree, the same ought to be declared void; and said estates conveyed to Plaintiffs and Defendant Catherine Tollet according to their respective estates and interests. Plaintiffs say, Defendants raise objections to the deed, which they refuse to discover; and threaten to set up said decree and conveyance against any ejectment; and George Embury Tollet in Hilary Term, 1799, levied a fine of the estate devised by and purchased under the will of Tollet, the grandfather, to the use of himself in fee; and the Defendant Armistead claims some interest under the will of John Craddock. The prayer of the bill was, that the Defendants may answer, and set forth, in whose occupation

the

1799.

FLETCHER

v.

TOLLET.

1799.

FLETCHER

v.

TOLLET.

the premises devised and directed to be purchased under the will of Tollet, the grandfather, now are, the particular premises and the rents, &c. and the annual value of any part in the occupation of the Defendants; and that they may distinguish what were devised, and which were purchased after his decease; what interest the Defendant Armistead claims; and that the Defendants Catherine Tollet and George Embury Tollet may be directed to convey said messuages, lands, &c. to Plaintiffs according to their respective interests, and deliver up the title-deeds, and be restrained from setting up said decree and conveyance made in pursuance thereof, or otherwise adverse to the title of Plaintiffs, at the trial of any ejectment, which they have brought or may bring; or, if necessary, that one or more issue or issues may be directed, to try the validity of the deed of 1725,

To this bill the Defendants, the Tollets, put in a general demurrer for want of equity.

The Lord Chancellor upon the opening said, he had a doubt upon the pleadings as to the form: if the parties waived that, there was no difficulty as to the demurrer: but the doubt was, whether the defence ought not to have been by plea, They recite the decree only as matter of pretence; and there is no direct statement, that there is such a decree, &c.

The Attorney General, in support of the demurrer. It is sufficiently stated to entitle the Defendants to demur; for it is the ground of the relief. The bill is founded upon that. Otherwise they have no business here. Then the bill is against all the course of the Court; and therefore the demurrer is proper. The question is, whether the Plaintiffs have any right to come into equity for the purpose they state in the bill. The relief in fact sought is a conveyance. The foundation is, that by the means stated in the bill the legal estate is now vested in the Defendants, the Tollets. The question then is, whether the Plaintiffs have shewn a ground in equity to take that estate out of the Defendants, and to vest it in themselves. The conveyance is void at law; for it is to take effect upon the death of the two sons without issue generally; not a conveyance of the reversion expectant upon their estates tail. Independent

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