The JUDGE'S Opinions delivered before His Grace the Lord Chancellor of Ireland, in the Cause between John St. Leger, Esq Plaintiff, and John Barrett, Esq Defendant. Taken by the Register of the High Court of Chancery, Saturday the 8th of February, 1678.  

PRESENT,  
Lord Chancellor,  
Lord Chief Justice Booth,  
Lord Chief Baron,  
Sir Richard Kennedy,  
Mr. Justice Johnson,  
Mr. Justice Jones,  
Sir Richard Reynell.   
THE Notes of the 10th of May, 1678, Read. Lord Chancellor, the Notes are short in this, for His Grace gave a Reason why this Court may determine points of Law, was because the Court may have the Judges present.  

The latter part of the Notes 9th of Decemb. Read.  
Sir Richard Reynell, That upon the hearing of this Cause, several points fell out; that of the Entail, and that of the Remitter: As to the Entail, the Court by Approbation of the parties, sent it to be tried, and the Jury said they did not find any Entail, and the Court declared the Verdict sufficient and satisfactory. So that of the Entail is now out of doors: but the Defendant saith, Though there were no Entail, yet the Intent of the Will is for him, and for the Opinion of the Judges, upon the Construction of the Will the Judges called together; saith, There was an Original Equity, because the Witnesses in England. Several Cases have been put concerning the favourable Construction of Wills; for that saith, Where Lands are given by a Will, the words must carry it; the Defendant hath urged the Preamble and Body of the Will, the Entail by Reputation. Sir William Barrett's Answer, That the Testator was consulting Justice and Conscience. Pray where was Justice and Conscience, to disinherit the Right Heir? That of Justice and Conscience may be broken off after the wrangling World: but if you carry Justice and Conscience to the Entail, conceives that of Justice and Conscience is subservient to the Construction, for the Plaintiff as well as for Defendant. You must look upon it now, as if there were no Entail; and if so by the words of the Will, it must be, as if he had said the Lands, for which there is no Entail, must go to my Uncle St. Leger: It cannot be denied but the greatest part of the Lands came by the Mother, and that might raise a doubt in Sir William, that the Lands were not Entailed; and therefore he saith, Those Entailed, I give to those; not Entailed I give to the Plaintiff; doth acknowledge, that if he had referred to the Inquisitions, the Case would have been stronger; as in Mollineuxes Case saith, It is not left to the Defendant by Name, nor what Estate, nor what Lands, only to the Right Heir, saith, He hath looked over all the Witnesses on both sides; and it seems to him, that there are more Witnesses, and of better quality on the part of the Plaintiff, than on the part of the Defendant. The use he makes of this, is, That there would be great inconvenience to the Subject to allow Construction de horse; concludes as to this point, that the words of the Will, and not the intent ought to govern: As to the Inquisitions, must look upon as a Collusion or Contrivance; for here is an Estate of 1000 l. per Annum, and yet the person concerned knows nothing of them. Then the Feoffment by Andrew, was but a Contrivance to draw his Wife's Estate to him, and enable him to make Entail; conceives that neither the Witnesses, nor the Inquisitions, nor the Answer ought to give the Court ground to dispose of the Lands otherwise than according to the words of the Will. As to Sir Moyle Finches Case, there the Manor had been once a Manor de facto, but dissolved by accident, so not akin to this Case. Then for the Case Hob. 32. there was a Wife de facto, but here is no Entail de facto; If there had been an Entail produced, something might have been said. As to the Case Anderson 188, there it was, I devise all my Lands Entail, not adjudged all my Lands that I thought Entailed: As to the Case in Stiles, that Tithes shall be intended, there it was upon a fair Construction. In this Case you must fetch all out of Averments; you must aver for the Person; you must aver for the Estate; you must aver for the Land; you can have nothing but by Averment; That the Defendants Council would have it strong enough to intercept the Deviser, and not strong enough to intercept the Heir, for which he sees no reason at all: To allow Foreign Constructions, would be of great inconvenience, for Witnesses may swear one way, and Witnesses the other; Therefore it is a good Rule of Law, that the Law should be certain in such Cases, and that it might arise out of the Letter of the Will; and for this relies upon the Lord Chenyes Case, and the Case of Brett and Rigden in Plowden. In this latter Case the Testator told, that his Son should have the Land: but the Judges said this would not do, because Lands must pass by Writing; but these words not in Writing, will instance one Case more, that is 2 Leonard 70. saith, That to him it seems very plain, that as this Case is, the Plaintiff ought to be put into the possession of the Lands, and that he ought to have a Decree accordingly: according to the prayer of his Bill, saith, If he be put into possession, he must resort again to this Court, if the Heir should commence action to prove the Will.  
Mr. Justice Jones premiseth two things: First, That the Defendant is the person intended, and 'tis so agreed. Next, If the Lands be Entailed, the Defendant is true and lawful Heir; will not speak to the Verdict, though he conceives much might be said, because he finds he is restrained as to that, will speak of what happened before the Death of Sir William Barrett, will speak to the Reputation: The Inquisition was taken before the Chief Justice of Munster, and it finds the Deed, which is to be believed before all Witnesses, if there were Ten thousand Witnesses. How this Entail has been defeated, cannot say; as to the Will of Old Andrew, no mention there, that it was Katherine's Estate: As to the Inquisition, after the death of Sir James, no mention the Estate was Katherine's, and Andrew complained her Jointure was too heavy for his Estate: It appears too, that Katherine took to her Jointure. Then the second Inquisition was taken before Sir P. Percival, who very well understood what Intails were. There was another Inquisition taken after the death of Sir Andrew, will reflect upon none; but it was taken before Mr. Mead, and it was taken by new men, who might not be knowing in the Settlements, Now we'll speak, what the intent of a Testator does operate in a Will, next as to the Reputation, as to the intent. It is the thing that in Law is always taken to guide the Will; for this Plowden, Hill and cradock's Case 107. the same Book Weldons Case 516. Hob. 75. what was the intent here, I leave all my Estate Entailed to the Right and lawful Heir: It is the duty of Justice to give to every one what belongs to him, and Conscience to perform the Trust reposed in him, upon creating of the Entail, as to Chenyes Case, conceives it makes wholly for the Defendant, for there an Averment was allowed that John was the person intended. In E. 3's time, a man had two Sons of one name, and their Averment was allowed: So in Fitz-Herbert, 22 Title Devise, which was a much stronger Case than this. And Sir Moyle Finches Case is, That things shall pass by Reputation, and so 2 Leon. 120. will consider a little of the Entail. No doubt but there was an Entail, were it the Estate of Katherine, or the Estate of Andrew: but saith, If it were the Estate of Kathirine, it might have been defeated, either by Action or Remitter; conceives Sir Andrew nor Sir James could be remitted, because the Statute of Uses, which fixed the Estate in them, and they must take accordingly: As to the objection, that if there had been an Entail, no need of Devise, if the Lands did not pass by the Will to the Defendant, than he is in as a Disseisor, and no Subpoena lies against him; if they do pass by the Will, the Plaintiff ought to be dismissed; Concludes he conceives the Plaintiff ought to be dismissed as to all the Lands that had the Reputation of an Entail, and have a Decree for all those things that were purely in Fee-simple.  
Mr. Justice Johnson, That 'tis a difficult thing to judge of intents, but no difficulty to judge of intents, according to what the Law directs; Conceives the Question before them is, Whether the Lands be devised to the Plaintiff or Defendant? and conceives by the words of the Will, the Lands are devised to the Plaintiff, concerning Chatels, Intents have been admitted: and so concerning Lands; but then that intent must be Collected out of the Will itself; and the Statute directs Lands disposed by Will, must be by Will in Writing; saith, The words are not ambiguous, they are plain, those Entailed are so, those not Entailed so: The whole Will must be considered; saith, the Defendants Council object that he intended something, for that he appointed Guardian, etc. From thence does not necessarily follow, that he intended to give any thing absolutely, but conditionally; Concludes he is of opinion the Lands are by the Will demised to the Plaintiff.  
Sir Richard Kennedy, That the Court desires only to know, that admit there be no Entail quid operator, what does pass by the Will; for that will not open the Curtain shut by the Court, only peep into the matter of the Entail.  
Lord Chancellor, That His Grace intends the Lords the Judges should speak to what they pleased.  
Sir Richard Kennedy, If no Entail, no Will, an easy way of Conveyance to a third person the Heir; Conceives the Lands had the Reputation of an Entail; it is gray-headed; 'tis One hundred years old; 'twas believed by Sir William; the Country believed it; conceives the Will good to pass to both, according to the intent of the Will: It appears to him that Sir William believed it to be an Entail, because he saith, When his Soul sat upon his lips, and was ready to take wing, and fly to another world, I give as I ought to do. And it seems to him, that the Plaintiff also took it to be an Entail, by undertaking the Guardianship; Observes that it appears by the proofs that Sir William was tempted at the time of his death to change his Will, and he answered with a quae Deus conjunxit. These which God hath joined, I will not sever. Then the Witnesses speak, That he said he would Dock the Entail, that implies he thought there was an Entail. Then it seems to him by the words of the Will, if he prove good for any thing, breed him as well as you can; if not, turn him amongst the rest, is an Argument there was a great struggling the Testator had concerning the Defendant, how to dispose of him; the words import, as if his Guardian should breed him virtuously, and marry him advantageously; and for the words, Turn him amongst the rest, cannot be construed to turn the Defendant out of his Estate, but among his Popish kindred; for certainly he intended he should be bred a Protestant; I leave all my Estate; Shall it be all? and shall it be none, as some would have it? The Testator gins, as in Justice and Conscience I ought, and provides for payment of his debts. There was a debt due to the Defendant, the Entailed Estate; believes if Sir William were here at this day, he would give it other Epithets than wrangling world; Concludes, that he conceives that there was an Entail in Reputation, and that the Lands are well devised to the Defendant by the Will, because Sir William looked upon the Lands to be entailed; and if so conceives, though there were no Entail, that the Lands shall pass to the Defendant by the intent, and the like Case concerning things in Reputation was Adjudged in 2 Leonard, in Jones' Reports, and Crook Car. 271.  
In the Case at Bar the Lands were reputed to be Entailed at the time of the devise; but it hath been objected, that the Reputation was taken away, but conceives it was not for Reputation, is taken to be what the Country doth believe and know. Instanceth Sir Moyle Finches Case for Reputation; saith he has delivered his sense, leaves it to His Grace's better Judgement.  
Lord Chief Baron, The Bill is to prove the Will, and to have possession: As to the first, it is agreed on all hands the Will well proved. As to the second he is to speak to, whether the Plaintiff shall be put into possession; for that he must say now, as he said formerly; that the Verdict is not positive, it ought to be positive, either Negative or Affirmative, or the Court can make no Decree. Next it does not appear what Estate Sir William had to devise, it hath not been proved that he had an Estate in Fee, as to the Construction of the Will, will take the same method he did when he spoke last; saith, There are certain Rules and Grounds in the Law concerning the Exposition of Wills. First the Intent is to be found out; Next no violence offered to the Will. The Rules for Construction of Wills appear in 1 Rolls 319.  
The Devisor was a Gentleman of an ancient family, and had a fair Estate, and believed he had Lands which were Entailed, and Fee-simple Lands; the words, I leave all my Lands Entail. It is to be considered, whether these words are Nugatory, or what they import. First, they import that the Lands Entail should be devised to the Defendant, for he does not pretend to be Heir at Law: It was Justice it should be so by Argument, ab extra; that is, the Statute de Donis Conditionalibus is so. Next ab intra, his Conscience told him he ought to leave them to the right Heir. By the scope of the Will, and the intent of the Devisor it may be Collected the Devisor had Lands which he believed were Entailed, and which he intended should go to his Heir entail. Then it appears by the Will, that the Devisor had Lands in Fee; saith, It is plain to him, that the Devisor intended the Land entailed, or which he believed to be entailed, should go to the Defendant, those in Fee to the Plaintiff. If you should make other Construction, you will go contrary to the Will, and give that to Plaintiff, which was intended for Defendant, and give the Defendant nothing; then there is no necessity for such Construction; that there was an Entail, you have the Reputation.  
Sir William's Oath, Several Circumstances that he believed it was Entailed, that he raised money on his Fee-simple Lands; that he said he would Dock the Entail, will not speak to the two first Inquisitions, only to the third, which finds it Fee-simple Lands; saith, The Escheator was Judge and Party, and the Lease for years would have been in danger, if a Fee had not been found. The Devisor provides for the Education of the Defendant, and appoints a Guardian, which to him seems an undeniable Argument, that Sir William believed the Lands were Entailed; for if no Estate, what needs a Guardian? To give the Estate to the Plaintiff, would be to make us ridiculous to posterity, to give a thing against the intent of the Testator, and that a Guardian should be appointed to one who hath no Estate. If none but the Devisor himself had believed the Reputation, it would be sufficient to pass the Land, 1 Inst. If a man devise in perpetuam, it shall be a Fee, that all the words may stand together, Fitz Herbert, Title, Devise 22.  
These Cases show, that Wills ought to be expounded, that all parts may stand together, and none rejected; Conceives, that if the Lands that were Reputed to be Entailed, be given to the Defendant, and those in Fee to the Plaintiff; That all the parts of the Will, will stand together: The Plaintiffs Council would have the Intent help the Plaintiff, and will not admit the Defendant to be helped by the Intent; for it is as doubtful what Lands the Plaintiff shall have, as it is what the Defendant shall have. As to the person, conceives he is well described, both by the Will and Proofs, and the person intended by the Will. It hath been objected Averment shall not lie, for that conceives Averments in all Cases, for clearing up the Intent of the Devisor; and so is Chenyes Case. Upon the whole matter conceives the Devise to the Defendant is good, and that he ought to be Dismissed.  
Lord Chief Justice Booth, The Devising words are only material, and the point before us; The question, what devised to the Defendant? and if there be no Entail, how can it go to the Defendant? There is another right Heir; it does not appear to him that the Defendant is the person intended. His Opinion is, If there be no Entail, that nothing passeth to the Defendant: If there had been an Entail de jure, or de facto, it is likely his Opinion would have been otherwise.  
Lord Chancellor: Being the Judges differ, will not take upon him now to determine.