title not originally barred, the release which he has freely executed has put an end to it, and there are no circumstances of improper conduct in the obtaining of it which will warrant the court in setting it aside; the defendant Richard Bowles positively denies by his answer having intended any fraud or concealment, and took no part in the means used for procuring the release. With respect to the solicitor for Mr. Richard Bowles, it was submitted that he was improperly made a party; he had acted merely in the capacity of solicitor, and with zeal for the interests of his client; and the respectability of his professional character (to which there was a very full testimonial) rendered it impossible to suspect him of a fraudulent intention.

Lord CHANCELLOR.

This is a case of considerable obscurity in many parts, and that obscurity makes me anxious that the principle on which I think the case ought to be decided should be fully understood.

The circumstances of the case are these: Samuel Hill having an only daughter, and having considerable freehold estates, part fee-simple, part held under leases for lives renewable for ever and for lives without covenant of renewal, and being possessed of some chattel interests and other personal fortune, makes his will and disposes of his property thus-(His Lordship then stated the will of Samuel Hill). In consequence of this disposition the leases for lives as well as the estate of inheritance were settled by the will in strict settlement, and the personal estate and leases for years were vested in trustees upon trusts which made it their duty to convert the leases for years into money and apply the pro

duce in payment of debts and legacies, and in case that fund should not be sufficient, the deficiency was to be supplied out of the rents and profits as mentioned in the will; but if there should be any surplus, the capital of that surplus was to be settled in the same manner as the real estate. Supposing therefore, there was a surplus arising from the sale, that surplus would vest absolutely in the first son of Alithea, on his birth, and be transferable to his personal representative.

This will was made in 1722, proved in May 1723, and the settlement is dated June 1724, so that this lady married within a year after the death of her father; consequently there could be very little accumulation of rents and profits to add to the fund for payment of debts. On her marriage a settlement was executed by which the trus tees gave to the husband a life interest in the fee-simple estates and leases for lives; the settlement is silent as to the amount of the personal estate or leases for years, but it proceeds on the apprehension that they would not be sufficient for the payment of the debts and legacies, for a sum of 3,000l. was paid to other trustees named in the settlement, which sum was to be applied in paying such incumbrances on the real estates as the money arising from the personal and leasehold estates would not extend to pay. As the settlement is silent with respect to the surplus, there is strong ground to presume from thence, as well as from providing this other fund for the payment of the debts and legacies that in the contemplation of the parties there would be no surplus.

It does not materially affect the decree whether there was a surplus or not, for the title of the plaintiff is equally clear in either case. If there was no surplus, as the debts and legacies must now be presumed to be paid, it must be

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presumed they were paid out of the fund appointed for their payment; and that the leases for years were sold for that purpose, that is the fair presumption, and it is also corroborated by another circumstance, (viz.) that according to the terms of this will the trustees were to retain possession of the leasehold estates till the debts were paid, and the rents as well as the produce by sale were applicable to pay the debts and legacies; and the daughter could take nothing but what should remain after payment of the debts and legacies, and it would have been a breach of their duty as trustees to permit her or her husband to receive these rents, if the debts were not paid. These leasehold interests also were to expire, one in 1745, and the other in 1757 ; there is therefore a strong ground for presuming that the trustees actually sold the leasehold estates, and that they sold them to General Bowles; it was natural that he should become the purchaser, and his getting into possession of them is evidence that the trustees did execute their trust by sale; and an auxiliary fund being provided in the hands of the other trustees, it is to be presumed both sets of trustees did their duty, and that General Bowles got into possession by lawful title.

Then being in possession, in 1734 he surrenders the leases and takes a new grant of a different description, to which none of the trustees were parties: it is fair to infer from thence that he had assignments of these leases: it is to be supposed the agents of Lord Mount Cashel took care that he had a title which enabled him to make a valid surrender of the former leases. There is no trace, I presume, of any such conveyance in the register; I do not wonder at it: it was not important that they should be registered, for if these interests were purchased by General Bowles with intent immediately to obtain a different interest in himself, the leases being gone by being delivered up, and no other person capa

ble of making any title, but the trustees under the will: that General Bowles should omit to make his title quite complete is not so extraordinary as it would be to impute to the trustees what must be imputed to them, if these leases for years were not sold. General Bowles acts therefore as owner of these interests; it is clear he must be taken to have disposed of them by his will, because he had no other property that would answer the description of "his Dublin "estates," except that in Mary's-abbey, which was specifically devised: he gives to his wife for life, and she having proved his will and taking other benefits under it, must be presumed to have entered under his will, unless the contrary be shewn; for if she refused to take these estates and insisted on another right, she ought to have renounced all benefit which she took under the will. If she had claimed against the will it would have been to her own injury; for it is evident from his will that part of the 3,000l. had been applied in paying off the incumbrances on Samuel Hill's estate, and that that 3,000l. was a subsisting charge for the benefit of the children; and the eldest son, if she had claimed against the will, would have had a right to have them sold to clear off the debts. It is fair therefore to presume that these estates were vested by lawful title in General Bowles; that when he surrendered the leases he did a lawful act, and when he took the new leases that he took what he had power to dispose of. If on the contrary these leasehold interests never were conveyed to him by the trustees; the consequence would be that they were still to be considered as money, and then the new estate which he took would be considered as an accessary to the old which he had surrendered, (and if taken in fee-simple it would be the same thing) and being by the will of Samuel Hill converted into money, and no body having a right to alter their quality, and therefore for the purposes of the entail to be taken as money; they consequently would vest absolutely

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in the first son. Either way therefore the plaintiff has a title, unless it appears that something has happened which has deprived him of title, either, by deed executed by himself, or by lapse of time or by some act done by the person in possession since the death of Mrs. Bowles.

All the obscurity which belongs to this case arises from the suppression of the instruments that could throw light on it: that suppression from the time of the death of Alithea Bowles is attributable to Richard Bowles; that is, attributable to him through his agent, for he was a gentleman residing in England, knowing little of his property here except through his agents; but I must consider him as to this suit, as if the suppression was with his full knowledge; and that suppression a court of equity must consider as unconscientious. If there had been actual spoliation of deeds by Mr. Bowles, every thing would be presumed against him and in favour of those setting up a prima facie title: it would be presumed (if necessary) that either by actual conveyance or by some other means such title vested in General Bowles as enabled him to make this disposition, and though nothing of actual spoliation appears, yet there is a complete suppression, which for the purposes of this suit is equal to spoliation, and as against Richard Bowles is a ground for presuming a title in General Bowles.

What were the rights of the parties interested in this property with respect to the deeds relating to it? General Bowles was tenant for life of the freehold under the settlement and either absolute owner of the leasehold estates renewed by Lord Mount Cashel, or a trustee for the persons claiming under the will of Samuel Hill: the title deeds must be presumed in his possession at his death; then Mrs, Bowles succeeded, whether her title was under his will or