1833. LOGAN V.i WIENHOLT. J "between John Weinholt and Sarah Jopson, niece "of the above-bound D. Birkett; and whereas the " said D. Birkett hath of his own free will, and in "respect of his approving of the said marriage, and "in consideration thereof, and of the natural love "and affection he beareth to the said S. Jopson, "his niece agreed to make some provision for the " said Sarah, and the issue of the said marriage, in "case the same shall take effect, and the said Sarah, "or any issue of the said marriage shall happen to "be living at the time of the decease of him, the " said D. Birkett, in manner as hereinafter men"tioned: Therefore the condition of the above"written obligation is such, that if the said intended "marriage shall take effect, and the said Sarah, or 66 any issue of the said intended marriage, shall sur"vive him, the said Daniel Birkett, and the heirs, "executors, or administrators of the said Daniel "Birkett, do and shall in that case, and also in case "the said Daniel Birkett shall happen to die un"married, and without any lawful issue, well and "truly pay or cause to be paid unto the said Thomas "Norman and John Graves, their executors or ad"ministrators, the full sum of 2000l. of lawful 1 money of Great Britain, within the space of twelve "calendar months next after the decease of him the "said Daniel Birkett; but in case the said Daniel "Birkett shall happen to depart this life leaving "a wife, or any lawful issue by him begotten, living at such his decease, then the sum of 1000%. "only of like lawful money of Great Britain, the "said 20007. or 1000l., as the case may happen, to "be paid to them, the said Thomas Norman and "John Graves, their executors or administrators, "within twelve calendar months next after the de"cease of the said Daniel Birkett, to be by them, "the said Thomas Norman and John Graves, "their executors or administrators, applied upon "the trusts and for the ends, intents, and purposes 66 following; that is to say, that the said Thomas "Norman and John Graves, or the survivor of "them, or the executors or administrators of such "survivor, shall lay out said sum of 20007. or "1000l., as the case shall happen to be, in some or "one of the public stocks or funds, or on govern"ment securities, in trust for the said Sarah; and "to permit and suffer her the said Sarah, or her "assigns (notwithstanding she may be under co"verture, to receive and take to and for her own separate use, exclusive of her said intended husband, or any husband she may hereafter marry) "the yearly interest, dividends, and proceeds "thereof, from time to time as the same shall be"come due and payable, for and during the term "of her natural life, and from and after her de"cease, in trust, for the issue of the said intended 66 66 marriage, if any such shall be living at the de"cease of her the said Sarah, equally to be divided "between them, share and share alike, if more than "one, at their respective ages of twenty-one years; "and if but one, then the whole to such only "child at his or her said age of twenty-one years, "with benefit of survivorship, in case any or either "of such issue shall happen to die under the said 66 age of twenty-one years; and the interest or di"vidends thereof to be paid and applied in, for, "and towards their respective maintenance and "education; but if the said Sarah shall happen to "survive the said Daniel Birkett, and there shall "be no issue of the said intended marriage living "at the time of the decease of the said Sarah, or 1833. LOGAN บ. WIENHOLT. 1835. LOGAN บ. WIENHOLT. "there being such, all of them shall happen to die queath to any one of his next of kin, or nearest "relations, or any other person or persons whom"soever, to be paid within twelve calendar months "next after the decease of the said Daniel Birkett, "or in case the said Daniel Birkett shall make no "such bequest in such will to or in trust for the "said Sarah, or the issue of the said intended marriage, or if such bequest shall fall short of the greatest bequest in such will to any one of his "the said Daniel Birkett's next of kin, or nearest "relations, or any other person or persons whom"soever, then, if the executors or administrators of "the said Daniel Birkett shall and do, within twelve "calendar months next after the decease of him "the said Daniel Birkett, pay or deliver over to the "said Thomas Norman and John Graves, or the "survivor of them, or the executors or administra"tors of such survivor, such bequest; or make good "any deficiency that the same shall fall short of as aforesaid, in trust for the said Sarah and the issue "of the said intended marriage, in manner as "before-mentioned respecting the said 2000l. or "1000, as the case may happen, then the above"written obligation to be void and of none effect; "otherwise to be and remain in full force and "virtue." 66 The marriage was solemnized shortly after the date and execution of the bond. There were issue of the marriage the Respondents and several other children, but all died under the age of twenty-one years, except the Respondents, who had attained their age of twenty-one years. John Wienholt, and Sarah his wife, both died in the life-time of Daniel Birkett the elder; Sarah Wienholt died on the 24th of June, 1800. The 1833. LOGAN บ. WIENHOL 1833. LOGAN บ. WIENHOLT. Respondents were the only children of the marriage living at the death of their mother. After the date of the bond, Daniel Birkett the elder had a natural daughter, the Appellant Sarah Logan, who intermarried with Daniel Birkett the younger, the nephew of Daniel Birkett the elder, and afterwards became the wife of Alexander Logan. In April, 1804, Daniel Birkett the elder caused a case to be prepared by Messrs. Batchelor and Potts, solicitors, and to be laid before Mr. Preston, as counsel, stating the bond, and requesting his opinion, whether by a deed or deeds of gift, reserving a life interest to himself, with power of revocation, he could not alienate his freehold and leasehold estates, so as pro tanto to defeat the operation of the bond; and Mr. Preston advised, that such a settlement would be a fraud upon the bond, but suggested that a settlement should be made, without reserving thereby a power of revocation, stating the inclination of his opinion to be, that thereby the effect of the bond might be avoided. In December, 1805, Daniel Birkett the elder, by the same solicitors, applied to Mr. Preston for his further advice, and particularly for his opinion, whether a bond payable after his death, or a transfer of stock to trustees, upon trust to pay the dividends to him for life, and then in trust absolutely for his nephew, would defeat the operation of the bond; and Mr. Preston advised, that a settlement should be made of stock, with a declaration of trust for him for life, in preference to a bond. Daniel Birkett the elder also employed Mr. Sweet, a solicitor, to prepare a case for the opinion of counsel, as to the means by which he could |