after that performed, they should stand seized in trust to the use of the respondent for life, remainder to his first and other sons in tail male. And by a subsequent substantive clause [5] in the will, declared, that if respondent died before twenty-one, without heir male, then the trust limited to respondent, to be void; and in case Sir Francis Popham should not, on request of the trustees, convey and settle on respondent and his heirs male, two full parts in three of all the estate settled by Alexander the grandfather on the marriage of Sir Francis; that respondent should then have no benefit of said devise, but that the same should be void: and that after refusal by Sir Francis to make such settlement, the trustees should stand seized upon other trusts; and that testator died 2d September, 1672, respondent being then about three years old.
In June, 1674, the executors of Rogers filed a bill in Chancery against Sir Francis Popham, to discover whether he had made any, and what settlement, according to the condition aforesaid; and on the 8th of July following, Sir Francis answered, that he had, by Rogers's consent and direction, made a settlement; and if that was not sufficient, was ready to make a further settlement under the direction of the Court: and the executors rested satisfied during the life of Sir Francis; who never after sold or parted with any part of his estate; but to prevent all cavil on account of the condition on the 10th of August, 1674, devised his whole estate to respondent, subject to his own and his father's debts and legacies, which last were known to Rogers at the time of the marriage settlement, and were thereby provided for, and died in August, 1674; which estate was greater in value to respondent, than required by Rogers's will, by above 50,000l. exclusive of timber, plate, jewels, and house furniture, worth above 50,000l. more.
But Bampfield, and the other trustees and devisees over, insisted that the condition in Rogers's will was a precedent condition, and that not being literally performed, no estate ever vested in respondent; who, therefore, in 1680, filed his bill in Chancery, to be relieved against the supposed breach of this condition, which he insisted was a condition subsequent and not precedent: and 13th November, 1682 (1 Vern. 79), Lord Chancellor Nottingham decreed, that a Master should inquire whether respondent's father had left him an estate equivalent to the condition, and declared, if so, he would relieve against the supposed breach, and that the same was a subsequent and not a [6] precedent condition; and further decreed an account of the profits of Rogers's estate, of which the trustees had been in possession above twelve years: and on the 18th May, 1683 (1 Vern. 167), the cause was reheard before the Lord Keeper North, who affirmed Lord Nottingham's decree and on the 3d July, 1683, the Court, on Bampfield's application, ordered that the quality and manner of the settlement made by Sir Francis on respondent, should be reserved till after the Master's report of the equivalent.
In June, 1685, Bampfield appealed, as stated in the petition: and 12th June, respondent, by his guardian, answered in the appeal; but the Lords not having made any order for stay of the proceedings below, and the appellants not bringing on their appeal to be heard in Parliament, the Master, 1st July, 1686, reported the equivalent, viz.
| £ | s. | d. | |||||||
| Personal estate | 3,901 | 8 | 6¼ | ||||||
| Plate, jewels, and houshold stuff not brought or valued in 10,000l. | |||||||||
| Value of estate not settled | 6,731 | 9 | 4 | ||||||
| Value of estate settled 128,000l. 8s. 5d. | |||||||||
| One-third of which to be added to the personal estate | 42,667 | 2 | 9 | ||||||
| 53,300 | 0 | 7¼ | |||||||
| Timber not included worth 40,000l. | |||||||||
| Alexander the grandfather's debts | 23,098 | 0 | 0 | ||||||
| Whereof paid | 9,058 | 0 | 0 | ||||||
| Then unpaid of Alexander's debts | 14,080 | 0 | 0 | ||||||
152
