his said wife and her assigns to receive and take the rents thereof for her life; but if she should marry, then he revoked the devise in her favour, and in lieu thereof directed his said trustees to receive the rents of the said manor, and out of the same to pay to his said wife the yearly sum of 5001. during her life; and upon trust that his said trustees should pay and divide all the residue of such rents to his three children, Fitzherbert, Thomas, and Frances Elizabeth Brooke, in equal parts, during the life of his said wife; but in case of either of their deaths, without lawful issue, then upon trust to pay the share of such of them so dying to the survivors of them, in equal shares; * and in case of either of them so dying, leaving lawful issue, thenupon trust to pay such share to the issue of such of them so dying, in equal shares; after the decease of his said wife, he gave and devised the same manors, in Upper Horton, unto his said trustees and the survivors or survivor of them, their or his heirs or assigns, for ever, expressly as devisees to uses, and not as trustees, of the legal estate, upon trust for the use and benefit of his said three children, Fitzherbert, Thomas, and Frances Elizabeth, for their respective lives, in equal shares, and to the lawful issue of their respective bodies for their respective life only, in equal shares, for ever; and as to the share and interest of his said three children, and their respective issues, in the said manor and premises, for life only, subject to the provisoes and conditions in his said will mentioned; and in case of the death of any or either of his said children, without lawful issue, then upon trust for the survivors or survivor of them, in equal shares, for life only, or to their respective lawful issues, in equal shares, for life only; and in case there shall be only one child then living, then upon trust for such only child, for life only, and for the lawful issue of such only child for life, in equal shares; and if but one child of such issue, then to such only child's issue, for life only, and the heir of his or her body for ever; but in case there should not be any lawful issue of such child, or the grandchild of such issue, then upon trust for such person or persons, and for such estate and estates, of and in the said hereditaments and premises, as his said wife should by deed or will grant and devise the same hereditaments and premises, in such manner and form, and for such estate and estates, as she should think fit, it being his wish that she should give or grant the same to some of his family; but in case his said wife should not make any such devise or grant thereof, then upon trust; and he gave and devised the same hereditaments and premises to and for his nephews, Thomas Brooke and William Brooke, sons of his late brothers, Richard Brooke and William Brooke, and their assigns, in equal shares, for life only, and on their deaths to the lawful issue of their respective bodies as to the share of each of them for ever, subject to the provisoes and conditions therein mentioned. And the testator empowered the said Fitzherbert and the said Frances Elizabeth, with the consent of his wife, to make a settlement of his or her share in his said manor on their respective marriages, such settlement to be made for the life only of the wife or husband of the said Fitzherbert and Frances Elizabeth, and to and for the lawful issue of his or her children for their lives only, and to. the lawful issue of their respective bodies, in equal shares, for ever; but in case there should not be any such lawful issue, then in trust, and to and for and upon the uses, ends, intents, and purposes, thereinbefore mentioned, and to no other use whatsoever. And the testator declared that, in case either of his said three children, or the issue of their respective bodies, should be so imprudent as to run into debt, and be under the necessity of raising money

Com. Pleas.

BROOKE

v.

TURNER.

Com. Pleas.

BROOKE

V.

TURNER.

for his, her, or their support, that such child or issue should not mortgage or sell his estate, in the said manor, for any longer or greater term than for his or her life only, unless it should be to a brother, or sister, or the issue of such brother or sister; nor should the same be subject to any sale, mortgage, judgment, assignment, bond, or other debt, or security whatsoever that should be made, contracted for, or given them, or either of them, unless the same should be made and given to a brother or sister, or the issue of such brother or sister, nor for any longer term, estate, or interest, than for the life or lives of the person or persons making such sale, mortgage, or security, or for the payment of any debts whatsoever; and the testator declared that all such sale or mortgage, except as aforesaid, should be void, it being his most earnest request, and his express desire, to his said children, that they should keep the said manors in his family so long as there should be found one of them living; and that the survivors or survivor of the said children, and their lawful issue, should take the benefit and interest in the said manor, notwithstanding any sale, mortgage, or security, should be made thereof by either of his said children, or their lawful issue, longer than for life only, and that the same should be held and enjoyed by the survivors or survivor clear of such sale, mortgage, or security, any thing therein, or in the law provided or declared to the contrary *; also, the testator gave and devised to his daughter, Frances Elizabeth Brooke, his farm, called the Mill Estate, formerly called Gydes, situate in the manor of Upper Horton aforesaid (being a farm which was parcel of demesnes of the Upper Horton Manor,) to hold to her, her heirs, and assigns, for ever; and the testator reciting that he did, in 1805, acknowledge and levy a fine, with proclamations, of the manor of Horton, he did, by his will, declare the use of the said fine to be and enure, and he gave and devised the same to the use of his said wife, H. Bengough, G. Whittington, and S. Rich, their heirs and assigns, for ever, upon trust, to pay and discharge the remainder of his debts; and, in the next place, to pay the annuities thereby made payable from the same, and after the payment thereof, then, upon trust, to permit and suffer my said wife and her assigns to receive and take the rents and profits of all the remainder thereof for and during the term of her natural life, subject to the payment of the annuities after-mentioned to my respective two children during her life; and if his said wife should marry again, then the testator revoked the devise thereinbefore made to her, and in lieu thereof, directed his said trustees to receive the rents of the said manor, subject to the payment of the said annuities; and out of the remainder thereof to pay his said wife for her use the yearly sum of 5001. for her life; and after the payment of the said annuities, then, upon trust, that his trustees should pay all the residue of such rents to his said three children during the life of his wife, with benefit of survivorship, if either of them should die without issue; and, after the decease of his wife, he gave and devised the same manor unto the said H. Bengough, G. Whittington, and S. Rich, upon trust, to preserve the contingent use and uses thereof from being destroyed, upon the same trusts, as are hereinbefore declared concerning the Upper Horton Manor, with a similar declaration for making settlements and mortgages for life only (a). And as to all the rest of his lands, whether freehold or copyhold, not before disposed of, and also all his per

(a) The trusts and powers contained between the *

were here repeated.

sonal property, the testator gave and bequeathed the same unto his said wife, and the said trustees, and the survivors or survivor of them, their heirs, executors, or administrators, and assigns, for ever, upon trust, to pay certain legacies; and the remainder thereof he gave and bequeathed to his said wife and children, their executors, administrators, and assigns, in equal shares; and the said testator made his said wife sole executrix of his said will.

The said testator afterwards made a codicil to his said will, dated the 30th of May, 1811, and thereby after reciting the devise to his said daughter, Frances Elizabeth Brooke, of the Mill Farm, called Gydes, he revoked such devise, and thereby gave unto his said daughter certain lands, in Frampton Cotterell, in fee; and after reciting that he had, by an indenture, dated the 1st of May, 1810, granted unto his son, Fitzherbert Brooke, and Theresa his wife, his said farm, called Mill Farm (being, in fact, Gydes,) to hold unto them, for their lives, and during the life of the survivor of them, his, or her assigns, the said testator confirmed the said indenture; and immediately after the several deceases of his said son and his wife, he ordered and directed the whole of the premises so granted by the said indenture to be, in every respect, and in all events, esteemed and taken as part of the residuum of his estate and effects, and, from time to time, used and enjoyed by the person and persons who, under and by virtue of the general residuary clause or devise in his said will, should be entitled to his manor of Upper Horton.

The said testator afterwards made a second codicil to his said will, dated the 12th of July, 1811, which, after reciting the aforesaid devise in his said will, from and immediately after the decease of his said wife, of the said manor of Upper Horton; and after reciting the aforesaid gift, in the said will, from and immediately after the decease of his said wife, of the said Lower Horton manor and estate, proceeded as follows:-From and immediately after the decease of his said wife, he gave and devised his said manors and premises unto the said H. Bengough, G. Whittington, and S. Rich, and their heirs, and to and for the equal use and behoof of his said three children, as tenants in common, for the term of ninety-nine years, to be computed from the day of his decease, if his said three children, or either of them, should happen so long to live; and from and immediately after the determination of the said term, and in the meantime subject thereto, to the use of the said H. B., G. W., and S. R., and the survivors or survivor of them or his heirs during the respective lives of his said three children, in trust, to preserve the contingent uses and remainders mentioned and expressed in his said will, and also subject to the provisoes and conditions, and declarations therein contained, with a proviso, that whilst his said daughter, Frances Elizabeth, should remain unmarried, it should be lawful for her, by her will, executed and attested, to give and devise one-third part of his said manors and premises, or any portion thereof, in fee, for life, or otherwise, to any person or persons she might think proper; and that such gift or devise should have full operation and effect, notwithstanding any or either of the provisoes, conditions, limitations, or declarations, to the contrary in his said will: but that immediately on the marriage of his said daughter, she should cease to have any disposing power, and the will she might have made previous to her marriage, should be utterly null and void. The said testator, bv two further codicils, appointed Charles James and George Rolph, trustees of his grid will, instead of the said Stiles Rich and George Whittington.

Com. Pleas.

BROOKE

v.

TURNER.

Com. Plers.

BROOKE

V.

TURNER.

The testator died in September, 1813, and he left his widow, and three children, namely, Fitzherbert Brooke, his eldest son and heir-at-law, Thomas Brooke, and Frances Elizabeth Brooke, all since deceased, him surviving. The said F. Brooke duly proved the said will and codicils.

The said F. Brooke and Charles James who died in her life time on the 5th day of July, 1818, alone acted in the execution of the said testator's will and codicils; and by deed-poll, dated the 8th of May, 1815, the said G. Rolph and H. Bengough disclaimed all their right and interest in the estates devised to them as aforesaid; the said G. Rolph and H. Bengough respectively died in the lifetime of the said Frances Brooke. The said Charles James survived the said G. Rolph and H. Bengough, and died intestate, leaving an eldest son his heir-at-law. The said Frances Brooke continued the widow of the testator until her decease, and the said Frances Brooke and Charles James sold the said freehold and leasehold estates, situate in the parishes of Yate, and other parishes as before-mentioned, in trust, for sale as aforesaid, and with the produce of such sale, and the personal estate of the testator, paid all his debts; and the said Frances Brooke duly paid the annuities as long as the same continued payable. The testator was not at the time of making his will, and first and second codicils, and of his death, seized of any hereditaments and premises, in the parishes of Frampton Cotterell, other than those devised by the said first codicil to the said Frances Elizabeth Brooke in feesimple. The said Frances Elizabeth Brooke, the daughter of the said testator, continued unmarried to the time of his death, and she had not any property in Upper Horton other than the said manor of Upper Horton, and she made her will, dated the 23rd of April, 1816; and thereby she gave and devised all her then present and future right and interest in the manor and parish of Upper Horton, and also all her messuages and premises, in Chipping Sodbury and Frampton Cotterell, and all her personal estate unto her mother, Frances Brooke, her heirs, executors, and administrators. The said Frances Elizabeth Brooke died 25th of May, 1820. The said Fitzherbert Brooke, eldest son and heirat-law of the said testator, on the 29th of March, 1810, intermarried with Theresa Frances Ansley, who died on the 6th of March, 1830, and there was issue of such marriage five children, Fitzherbert Huntley Brooke, his eldest son and heir-at-law, born 5th of November, 1815; the defendant, Richard Brooke, now Richard Brooke Jones, born on the 8th of July, 1816, and became, on the death of the said Fitzherbert Huntley Brooke, and is now the heir-at-law of the said testator; the defendant, Theresa Frances Cox Brooke, born 13th of December, 1810; the defendant, Frances Sarah Brooke, born 4th of February, 1812; and the defendant, Lucy Lucinda Brooke, born 20th of March, 1818. The said Fitzherbert Brooke died in March, 1825, and he left his said five children him surviving. The said Fitzherbert Huntley Brooke, the eldest son of the said Fitzherbert Brooke, died 15th of November, 1830, an infant and unmarried. The said Thomas Brooke, son of the said testator, had four children, viz. Thomas Richard Brooke, the plaintiff, born 16th of June, 1811; the defendant, Isabella Frances Brooke, born 9th of May, 1807; and the defendant, Elizabeth Brooke, born 6th of September, 1812; and the said Thomas Brooke, the son of the testator, died in February, 1830. The said Frances Brooke, the widow of the said testator, being seized of divers freehold estates, made her will, dated 29th of September, 1830, and thereby

gave, devised, and bequeathed all the residue of her estate, both real and personal, unto all her said grandchildren, equally between them and their several heirs, executors, and administrators, as tenants in common. The said Frances Brooke, the testatrix, died on the 20th of February, 1832; and the grandchildren, who survived her, are the defendants, Richard Brooke Jones, her heir-at-law, Theresa Frances Cox Brooke, Frances Sarah Brooke, and Lucy Lucinda Brooke, the children of the said Fitzherbert Brooke, and the plaintiff, Thomas Richard Brooke, and the said defendants, Isabella Frances Brooke and Elizabeth Brooke, none of whom have ever been married.

The questions for the consideration of the Court are:

1st. What estate the said testator's said three children, Fitzherbert Brooke, Thomas Brooke, and Frances Elizabeth Brooke, respectively took under the the said will, and first and second codicils of the testator, in Upper Horton manor and estate.

2nd. Whether the said Fitzherbert Brooke, Thomas Brooke, and Frances Elizabeth Brooke, respectively took any, and what estates, under the said testator's said will, and first and second codicils, in that part of the Upper Horton estates, called the Mill Farm, formerly Gydes, and in the mill also, called Gydes Mill.

3rd. Whether the plaintiff, Thomas Richard Brooke, and the said defendant, Richard Brooke Jones, respectively, are entitled to any and what estate and interest, in the said Upper Horton manor and estate, and the Mill Farm, or any and what parts thereof, under the said will and first and second codicils, and in any, and what character?

4th. Whether the defendants, Theresa Frances Coxe Brooke, Frances Sarah Brooke, Lucy Lucinda Brooke, Isabella Frances Brooke, and Elizabeth Brooke, or any, and which of them, are entitled respectively under the said will, and first and second codicils of the said testator, to any and what estates and interests in the said Upper Horton manor and estate, and the said Mill Farm, or any, and what part thereof?

5th.—What legal estate and interest had the said Frances Brooke, as the surviving trustee, under the said will and codicils of the said testator, in the Lower Horton estate, or in any and what part thereof at the time of making her will, and death, and in whom did such estate and interest vest upon her death?

6th. Whether the will of the said Frances Elizabeth Brooke operated as an appointment in exercise of her power over her one-third part of the Upper Horton manor and estate?

7th. Whether after the death of Frances Brooke, the heir-at-law of Charles James, had any and what legal estate under the said will and codicils of the said testator, in the Lower Horton estate, or in any and what part thereof?

8th. Whether any and what estate or interest in the Upper Horton manor and estate passed under the residuary devise in the said testator's will?

Preston, for the plaintiff, T. R. Brook.-The will ought to be considered with a view to what the testator's intention was at the time he made it, and it is obvious that he then intended to create estates tail. His wish was to create perpetual estates for life, but as that cannot be permitted, the object of every part of the instrument will be best preserved if the court determine that

Com. Pleas.

BROOKE

V.

TURNER.