discharge appellants, Bretland and Fowle, from laying out any sum in the purchasing of lands and hereditaments, to make up the [40] said two fee farm rents 300l. per ann. inasmuch as she might, under her father's will, charge the lands, when purchased, with such money as she should think fit. She therefore, by articles, dated 23d July, 1695, between her and appellants, Bretland and Fowle, (in consideration of 3480l. then paid, or bona fide, discounted to her, being the sum then computed sufficient to make up the fee farm rents, 300l. per ann.) acquitted, released, and discharged Bretland and Fowle, their executors and administrators, from laying out the 3480l. or any part thereof, in the purchase of lands, to be settled as aforesaid; and in case Bretland and Fowle should afterwards be compelled so to lay out that money, then Susanna, pursuant (as she apprehended) to her said power, thereby directed appellants, Bretland and Fowle, to convey and settle the lands so to be purchased, to the use of themselves and their heirs in trust, for them and their heirs, during her life; and after her death, subject to repay Fowle the 3480l. and interest and costs, in trust for Jonathan Cope, (son of Susanna) and his heirs. And afterwards, in the same year, 1695, Susanna intermarried with appellant, Berkeley, and, pursuant to said power, and also to a power reserved to her on her second marriage, made last will in writing, dated 31st January, 1696, and (amongst other things) gave to William Cope, her second son in tail male, the fee farm rent of 76l. 6s. 8d. per ann. payable by the Archbishop of Canterbury, remainder to Anthony, her third son, in tail male; remainder to Jonathan the elder son, in tail male; remainder in fee to appellant Berkeley; and devised unto Anthony Cope, her third son, in tail male, the fee farm rent of 50l. per ann. payable by the Dean and Chapter of Norwich; remainder to William Cope, in tail male; remainder to the said Jonathan Cope, in tail male; remainder in fee to the appellant, Berkeley, and made him executor. After whose death, the respondents brought their bill in Chancery, praying that the appellants, Bretland and Fowle, might purchase lands to make up the said fee farm rents, 300l. per ann. for the benefit of the respondents, the infants, according to Sir Thomas Fowle's will. And on the hearing of the cause, 23d July, 1698, the Court declared, That the power of charging the said fee farm rents, and the lands to be purchased to make up 300l. per ann. was, by the will of the said Sir Thomas Fowle, only for the benefit of the respondents; and that said power must be restrained to the same persons to whom the estate thereby [41] was limited, and that Berkeley's wife had no power to receive the money from the trustees, or to dispose thereof and therefore decreed, that appellants, Bretland and Fowle, should purchase so much lands as would make up the said fee farm rents 300l. per ann. according to Sir Thomas Fowle's will, and settle the same on the said Jonathan Cope, discharged of the 3480l. Which decree appellants conceived to be erroneous, for that by such construction of the said will, the power given by Sir Thomas Fowle to his only child, upon a voluntary gift, is in effect defeated; and appellants, Bretland and Fowle, are compelled to lay out 3480l. of their own monies, to make up the said fee farm rents, 306l. per ann. and must resort to appellant, Berkeley, to have the same made good out of the estate of his late wife, which construction is the harder, because the power was only made use of to pay the debts of the respondent's father; and because, upon the marriage of Susanna with Cope, there was otherwise ample provision made for the issue of that marriage, and by Sir Thomas's will, very considerable and other legacies are given to some of the respondents: and because appellant, Berkeley, will be thereby deprived of that little part of his wife's estate, (which was in her disposal after payment of her husband, Cope's, debts) and therefore insisted the decree should be reversed as to the matters aforesaid. (T. Powys. Nath. Wright. Edward Northey.)
The respondents made this case:—Sir Thomas Fowle was possessed of a personal estate of 40,000l. and seised of the two fee farm rents, stated by appellants; and Susanna, his only child, wife of Jonathan Cope, having had issue, Thomas and Jane Cope, since deceased, he, Sir Thomas, made his will in writing, as stated by the appellants; and Jonathan Cope, the elder, having died, Susanna, in 1695, married appellant Berkeley, and is since dead; and Bretland and Fowle now pretend a discharge from her whilst a widow, from the obligation to purchase the
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