418 TILLY r. TILLY.—2 BLAND.

Where a person has two capacities for the purposes of justice, each capacity
may be considered as a distinct person, (d)

THIS bill was filed on the 27tli of October, 1817, by Edward
Tilly, Horatio Tilly, Margaret Tilly, and Elizabeth Tilly, infants,
* by Nicholas Brewer, their next Mend, against Lucretia
437 Tilly and Sarah Tilly. The bill states that Richard Hig-
gins, on the 11th day of November, 1807, made his last will and
testament, by which, so far as relates to this case, he devised as
follows:

"I give and bequeath unto my son Joshua Clarke Higgins and
his heirs forever, all that plantation whereon I now live, called
and known by the name of Part of White Hall, and What you
Will, except one hundred and fifty acres thereof, to be laid off at
the discretion of the said Joshua Clarke Higgins, which said one
hundred and fifty acres, in eluding the house where John O'Hara
lives, I give and bequeath to my said son, in trust to and for the
separate use of my daughter Elizabeth Tilly for and during her
natural life, and to and for the maintenance of the children of the
said Elizabeth Tilly, until they arrive at the age of twenty-one,
remainder to the said Joshua Clarke Higgins and his heirs forever.
If my said son Joshua Clarke Higgins shall purchase the planta-
tion whereon Jasper Edward Tilly now lives for the use of my
daughter Elizabeth for and during her natural life, and to and for
the use of her children until they shall respectively arrive at the
age of twenty-one, then the said one hundred and fifty acres to be
the property of the said Joshua Clarke Higgins and his heirs for
ever.''

And then, after some other devises and bequests, the testator
further says, " It is my will, that the whole of my real and per-
sonal estate shall remain undivided, and undisturbed for and
during the space of five years from the first day of April next,
subject to the control and direction of my sou Joshua Clarke Hig-
gius, and in his possession, the proceeds to be applied to the pay-
ment of my just debts; and if there should be any surplus, the
same to belong to, and be the property of my son Joshua Clarke
Higgins for his care and trouble." And then, after one other dis-
position, the testator, in Conclusion, says, " I do hereby constitute
and appoint my son Joshua Clarke Higgins to be the executor of
this my last will and testament." This will was duly attested by
three witnesses, and proved in the Orphans7 Court of Anne Arun-
del County on the 22nd day of December. 1807.

The bill further stated, that Joshua C. Higgins had departed
this life; that Jasper E. Tilly had been appointed trustee for the
benefit of the said Elizabeth and her children; that the said Jasper

[d] See Binney's Case, ante, 99, note (b).