did towards effecting said marriage, all that honour and modesty would permit, and neither Lord Guilford, nor any of his relations having made any address or application to, or taken any notice of her in the time, she afterwards married the appellant James Bertie, a protestant, and of as honourable a family as Lord Guilford.
Neither Anthony Lord Faulkland nor Edward Cary, during their lives, before or after her marriage, disturbed Elizabeth's possession; but on Lord Falkland's death, (who survived Edward Cary) Respondent, about June, 1694, brought ejectments against appellants, who thereupon filed their bill; and respondent, by his guardian, filed his cross bill; which causes were heard; and the Chancellor, being assisted by the two Chief Justices, the appellants bill was dismissed, and John Cary's estate decreed to respondents, and the heirs male of his body; which decree the appellants insisted ought to be reversed, and that appellant Elizabeth, and her issue, ought not to lose the inheritance manifestly intended for them, merely because she, in her infancy, advised with her trustees, and paid obedience to the Court of Chancery, and did not perform an impossibility: and further insisted, that the distinction made for the respondent, between a devise upon a condition precedent, and a condition subsequent, was a criticism which the testator could not rationally be supposed ever to have understood: and that here there was no reason for making such a distinction, for that Elizabeth was heir at law, and had a right to the profits within the three years, (the debts [13] and legacies having been paid within that time.) Nor could, (as they contended) common sense warrant any such distinction; for that, in plain and honest meaning, the conditions are the same, whether they precede or follow the grant, and only shew the parties intention in what manner any particular thing should be complied with, as far as might be; and therefore insisted that the Lords should order the trustees to convey the estate in question, to the use of Elizabeth for life, remainder to her sons by Bertie in tail male, remainders over as in the will provided, in case she could have married Lord Guilford. (Holt and Treby 25th January, 1696, v. 2 Vern. 333, 3. Cha. Ca. 129.)
The respondent insisted that it was not material through whose default it was that the marriage was not had, since, by the express proviso of the will, the appellant was not to have the estate in case the marriage did not take effect, and in default thereof the estate was to go over to Lord Falkland. And that no man could tell what will to make, or how to settle his estate by the last solemn act of his life, if a will, as this is, made advisedly, plain in the expression, and executed according to the laws and statutes for that purpose, should by surmise or construction, directly contrary to the express declaration of testator's intentions, be subverted: and that in that case not only the present Lord Falkland, but all devisees of estates would thereafter be precarious in the exposition of wills, be they never so plain, and as fully expressed as words can express; and that therefore the appeal ought to be dismissed.
There being contradictory accounts of the fate of this appeal, some books saying that the decree was reversed, and others that the business was ended by compromise, and some not speaking of any appeal, the fact is here stated from the Lords Journals. (1 Salk. 232. 2 Vern. 333. 3 Ch. Ca. 136. See also 12 Mod. 183. Viner. vol. v. 93. vi. 115. viii. 185, 191. ix. 413. xiv. 277. xx. 269. 1 Eq. Ab. 110.)
Upon hearing council on both sides, the debate was adjourned, and all the Lords and also all the Judges summoned and after again hearing council, this question was proposed; Whether the appellants shall have any relief in this cause? and resolved (several Lords protesting) in the affirmative. Then moved, that Mrs. Bertie may enjoy the estate for her life; and resolved that that was the relief the House would give the appellants, and that the decree be altered accordingly; and that the C. B. and J. Nevil prepare a draught of the [14] judgment; which was done, and follows, viz. After hearing council, &c. it is ordered and adjudged that the trustees, Sir William Whitlock and J. Grant, and their heirs, do forthwith execute conveyances, whereby all the manors, &c. of said John Cary, devised to them, shall and may be assured unto or to the use of appellant Elizabeth for life, remainder to Lord Viscount Falkland and the heirs male of his body, with remainder to the right heirs of the said John Cary for ever. And that there shall not be any account of the profits
156
