interest of, in and to the lease and lands of Ballyvaughan, "and all benefit thereof, under and subject to the following "uses intents and purposes: as to one moiety then held by "Edward the elder, to his use till the 25th day of March "then next, and from thence to the use and benefit of Ed"ward the younger for and during his natural life, and as "to the other moiety, to the use and benefit of Edward the "younger from and immediately after the perfection of said "articles for and during his natural life, subject to the pay"ment of two several sums of 51. yearly to the said John "Bushell and his wife during their respective lives, and "from and after the decease of said Edward, charged and chargeable with a jointure of 30%. a year for said Elizabeth. "in case she should survive the said Edward, and the said "premises from and after the death of the said John and "his wife, the said Edward, and Elizabeth his intended wife, "to the use of the issue to be begotten by said Edward on "said Elizabeth in such shares and proportions as the said "Edward and Elizabeth by any deed in writing should di66 rect and appoint; with power to said Edward to charge "the said premises with 50%. for his own debts." There was also a covenant for further assurance. These articles were duly registered. 66 The marriage took effect, and Edward entered into possession of said lands, and continued in possession until Aug. 1778, when he died leaving Elizabeth his widow, Edward his eldest son, and five other sons, and six daughters: but shortly before his death, on the 31st July, 1778, he duly made and published his last will, whereby he devised the said lands to his eldest son and his heirs, subject to his debts and legacies, and if he should die without issue male, then to his second son, and his lawful issue male, and so to continue in the male line according to seniority: and he thereby be queathed to his wife during her viduity the sum of 10%, a .1803. BUSHELL .v. BUSHELL. 1803, BUSHELL .v. BUSHELL. year over and above the 30%. which she was entitled to by her marriage settlement; and to his second son James 200l. to be paid him at his age of twenty-five, with 10%, a year during his life, together with his interest in the farm of Killotlea: to his third son John, (one of the plaintiffs) the testator bequeathed his interest in the lands of Johnstown, and to his fourth son Thomas, (also a plaintiff) his interest in the farm of Lahoppal. To his eldest daughter Mary Cooke (who had married and been portioned in his life time) he left 51. and to each of his other children, viz. Elizabeth (since married to John Butler,) Anne (since married to Charles Jackson,) Robert, William, Judith, Ruth, and Catharine, 2001. each, No deed of appointment in pursuance of the articles of 1755 was ever executed, but Elizabeth, the wife of the testator, at the time of execution of said will, knew and approved thereof, and by a writing endorsed on the back of the said will, after the death of her husband, and bearing date the 14th of Sept. 1778, "did ratify and confirm the said will "and the appointments thereby made;" and this will and endorsement were registered on the 12th day of June, 1784, subsequent to the registry of the articles of 1755. Edward Bushell the son entered into possession of the lands of Ballyvaughan by virtue of the devise in the will of his father, and in 1781, intermarried with Alicia Keating; previous to which marriage, by deed bearing date 25th Feb. 1781, Edward limited said lands of Ballyvaughan to trustees to secure to his wife Alicia, in case there should be issue of said marriage, the yearly sum of 100%. in case she should survive her husband, and subject thereto to the use of the first son. of said marriage, with subsequent limitations. There was issue of this marriage, one son and two daughters: Edward died in 1789, intestate and insolvent, and his widow married Jeremiah Lilly. Edward Bushell haying in Feb. 1780 mortgaged the estate, it was sold under a decree of the court of Exchequer, and purchased in trust for Elizabeth Bushell, the mother of the plaintiffs, who continued in possession (the plaintiffs residing with her) till the year 1796, when a receiver was appointed in a cause instituted in this court by Alicia, the widow of Edward Bushell, against Elizabeth and her children. Under these circumstances, the six younger children of Edward and Elizabeth Bushell filed their bill, in April 1798, (about which time they had all attained the age of twentyone) against Elizabeth Bushell, Jeremiah and Alicia Lilly and her infant son by Edward Bushell, and against the elder brothers and sisters, insisting that they had never acquiesced in or abided by said will of July 1778, and praying to be decreed to each one twelfth part of the lands of Ballyvaugl an, and for an account of the issues and profits of such their respective shares since the death of Edward their father. The elder brothers and sisters by their answers elected to accept the portions appointed for them by the will. This case was argued by Mr. Burston, Mr. O'Grady and Mr. Sankey for the plaintiffs, and by Mr. Saurin, Mr. Fitzgerald and Mr. Plunket for the defendants. On the part of the plaintiffs it was insisted that the registry of the articles of 1755, prior to that of the settlement under which the defendants claimed, made them purchasers with full notice of those articles, the registry of a deed being notice to all the world of existence of such deed, and of its contents, so far as they are contained in the memorial; and it was stated that such had been the prevailing opinion in Ireland on the effect of the Registry Act (a). (a) 6 Ann, c. 2. 1803. BUSHELL υ. BUSHELL. 1803. BUSHELL v. BUSHELL. Feb. 7. For the principal defendant, Mrs. Lilly and her son, it was insisted that the will of the 30th July 1778, was executed by Edward Bushell with full purpose and intention of executing the powers given him by the articles of 1755, and with the concurrence and advice of his wife Elizabeth, and that her subsequent ratification was in execution and performance of the power vested in her: that therefore the will and indorsement were to be taken as a good and valid execution of the power by Edward and Elizabeth, and that the regis tering said will and indorsement in the proper office for the registry of deeds (instead of proving the will as such) was the result of a conviction on the minds of the persons interested for the plaintiffs, that they did amount to a good execution of the power: that all the family had acquiesced under this appointment for twenty years, and that she and her son were purchasers for valuable consideration and without notice of the articles of 1755; the mere fact of registry not amounting to notice, according to some MSS. cases in this court, which were mentioned. (a) This latter point having become the principal question in the case, was a good deal discussed at the bar, and in order to consider it fully, the Lord CHANCELLOR ordered the cause to stand over until this day. Lord CHANCELLOR. This bill was filed by six of the children of Edward Bushell by Elizabeth Duckett: the question arises on the settlement made on the marriage of Elizabeth and Edward, and the subsequent transactions in the family. (His Lordship stated the settlement). By this deed the parties attempted to convey to trustees for these uses, but the legal in (a) The reporters have endeavoured in vain to procure notes of these cases. 1803. BUSHELL V. BUSHELL. Limitation in an article on terest did not pass; a question arises (which was not discussed) upon the limitation to the use of the issue "from "and after the death of John and his wife, Edward and "Elizabeth;" but I do not think the limitation was to await the death of these in order to take effect; but the true construction is, that it is a limitation to Edward for life, and marriage, to 4. for life, subject then to the issue, to take subject to the charges for John to annuities for and his wife and for Elizabeth, but not to wait for their death. the lives of B. and C. and a charge for a jointure for D. if she should survive A. and after the death of said B. and C. the issue, &c. A. and D. then to The limitation to the issue is not to await the deaths of The whole of this instrument is incorrect; it seems to have been considered only as notes for a future settlement: the children were intended to take, not by appointment merely, but also in default of appointment, though no such provision is inserted. I imagine the thing looked to was, that a further deed was to be executed, and if a bill had 4, B. G. and D. been filed in this court for the purpose of executing that but they are to take upon settlement, I should conceive it ought to be, to Edward fort he death of 4. life, and subject to the limitations to Edward and Elizabeth, then to the children in such shares as husband and wife should appoint, and in default of appointment, to the children as tenants in common. This is the construction which the parties have put upon the settlement in argument at the bar, and I think it is the true construction. The consequence would be that subject to the power of appointment in the husband and wife, the children would be tenants in com mon. subject to the charges for B. C. and D. Six of these children are the plaintiffs; the others are not in a condition to claim, having elected to take under their father's will against the settlement. John the father and his wife are long since dead; Edward the son enjoyed the estate till August 1778, when he died; but he made a will which it is contended operated as an appointment under |