[2] On the 19th of May 1691, the father made his will; and thereby, after giving some legacies, and confirming his settlement, he gave the residue of his personal estate to his daughters, the appellants, whom he appointed his executors; to be disposed of by them to the use of themselves, their brothers and sister, or to such of them, and in such proportion, as they should judge most fit and convenient, according to their needs and necessities. And, after again mentioning his settlement, the testator proceeds in the following words: "I do hereby further appoint, that my trustees shall raise, out of the profits of my lands, £400, and pay the same to my executors, to be disposed of by them, to the use of themselves, their brothers and sister, or to such of them, and in such proportions, as they shall judge most fit and convenient, according to their needs and necessities."
The testator's son Thomas, having attained 21, received £61 8s. 6d. in part of his portion of £300, which was thereby reduced to £238 11s. 6d. but before he had received any part of this residue, he died, in his father's life-time; and soon afterwards the father died.
In Michaelmas term 1696, the respondent filed his bill in Chancery, against the appellants, and other proper parties; praying, that the portions might be raised by sale of a competent part of the premises, comprised in the 99 years term, and that thereupon he might be let into possession of the residue; that he might also have a reasonable share of the surplus of the personal estate, and of the £400 to be raised out of the real estate; and that the residue of Thomas's portion might be considered as sunk in the real estate, and not be raised.
The cause came on first before the lord chancellor Somers, on the 9th of July 1697; who made no other decree than merely referring it to a master, to state the particulars and value of the personal estate, and the different claims of all parties; and reserved all further consideration of the matters in question until after the report.
The master having made his report, the cause came on to be heard before the lord keeper Wright, on the 17th of October and 18th of November 1700; when his lordship declared, that, considering the plaintiff was heir of the family, and bred up to the law, and looking upon him as a necessitous person, he ought to have a double share of the personal estate, and of the £400 which was to be raised out of the trust estate, and decreed the same accordingly: and also decreed, that the trustees should sell the trust term of 99 years, of and in 80 much of the trust estate as would satisfy the portions unpaid, and the £400: and declared, that the residue of Thomas's portion did not lapse or sink in the real estate, by reason of his death in his father's life-time; but that it subsisted for the benefit of the other children, and ought to be added to the father's personal estate, and disposed of according to his will.
[3] From this decree the defendants, the executors, appealed; and on their behalf it was contended (W. Cowper), that the respondent ought not to have any, and much less a double share of the personal estate, or of the £400, because he was not under any necessity; for the decree, by ordering a sale of part of the estate had entitled the respondent to the possession of the residue, which was near £500 per ann. so that he was not at all necessitous, or at least not equally so with the rest of the family; and it was evident that the testator, in the designed distribution of his personal estate, considered only the necessity of his family, and intended that most should be given where most was wanted. That he had spent about £2000 in educating the respondent to the law, and in paying his debts; and, in several letters to him, complained, that he had done more for him than he was able; and that it was high time for him to make provision for his younger children: and that the provision he intended for them out of his real estate should be £3500. But the provision made for the younger children, by the settlement, amounted only to £3100, and therefore, by the will, the real estate was charged with £400 more in order to make up that sum. And as to this £400, it could never be supposed to have been the testator's meaning to charge his eldest son's estate with it, to the intent that any part of it should be distributed back to such eldest son, as that would be to charge his estate with a sum of money payable to himself: but the personal estate, and the £400 being devised in totidem verbis, the testator's intent was the same as, to both. That the power given to the executors by the will over the personal estate, was entirely discretionary; and though subject to be regulated by the court of
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