Deed made by the Plaintiff Eliz. in Feb. 1666. Frandulent Deed. before her Marriage with the Plaintiff Sir Philip Howard and that the Plaintiff Sir Philip in right of his said Wife might have all her benefit and interest in or to the Estate of Sir John Baker her former Husband and receive the Rents and profits of the premisses The Case being that Sir John Baker the Father being seized in Fee of Lands by two Deeds Tripartite of Lease and Release made between himself of the one part Sir Robert Newton deceased of the second and Sir John Baker the Son and Dame Eliz. the Plaintiff and sole Daughter of Sir Robert Newton of the third part in consideration of a Marriage between the Plaintiff Dame Eliz. and Sir John Baker the Son and 4000 l. portion conveyed the same to Sir Robert Newton and his Heirs part of which Lands were for the said Dame Eliz. Joynture and Sir John Baker the Father and Dame Mary his Wife being dead Sir John the Son sold part of the premisses for payment of debts part whereof was the Joynture of Dame Eliz. and in consideration of the said Dame Elizabeth joyning in such sale and parting with her Joynture Sir John her Husband in lieu thereof and of 1500 l. to be paid to Dame Elizabeth for a Joynture house limitted the premisses unsold to the said Dame Elizabeth and the Defendants for 400 years upon Trust by Sale thereof to pay the said Dame Elizabeth the said 1500 l. and also the Rents and profits of the whole until Sale and the residue of the said premisses remaining unsold to Dame Elizabeth during her life and after to wait on the Inheritance And in 1658 the Inheritance was conveyed to Sir Robert Newton and his Heirs and he by Will devised the same to the said Dame Elizabeth for life Remainder to the first Son of the Plaintiff Sir Philip and Dame Elizabeth so the Plaintiff being intituled to the 1500 l. and the term of 400 years after the Trusts performed and so ought in right of the said Dame Elizabeth his Lady to continue in the possession of the premisses and receive the Rents and profits thereof which the Defendants refused to do pretending the term of 400 years is limited to them upon other Trusts and in particular that the Plaintiff Dame Elizabeth before her Marriage to the Plaintiff Sir Philip by her Deed of the 9th of February 1666 Assigned to the Defendants all monies then due or to be payable to her by vertue of the Deed in Trust for her benefit and to be at her disposing during the Joynt lives of her and the said Sir Philip whether she Married or continued Sole and that she should have power by writing under her Hand and Seal to dispose thereof for the benefit of her Daughter by her former Husband and that she hath disposed thereof accordingly which said Deed the Plaintiff insists is fraudulent or with power of revocation and never mentioned to Sir Phillip and that Sir Philip after his Marriage setled 500 l. per Annum on the said Dame Elizabeth for a Joynture which he would not have done if he had known or understood the said Dame Elizabeth had made such Deed or disposition as aforesaid of her former Husbands Estate and since their Marriage she desired leave of Sir Philip that she might receive the Rents and profits of the said Lands of her former Husband without mentioning the said Deed and therefore the same ought to be set aside The Defendants do insist the said Dame Elizabeth before her Marriage with the said Philip did declare to him that who ever did Marry her should have no benefit of any Estate that she had by her former Husband and that Sir Philip did agree to bar himself thereof and take no benefit thereby A Widow makes a Deed of her former Husband Estate and marries the second Husband not privy to it the Deed set aside and the second Husband to enjoy the Estate and that Sir Robert Newton looking upon the Estate as setled on his Grand-children as aforesaid and had given his personal Estate and 700 l. per Annum to the Plaintiffs and their Sons and the said Sir Robert Newton never pretended right to the said Estate or intermedled therewith that there is no reason to set a side the said Deed of the 9th of Feb. aforesaid This Court being assisted with the Judges on reading the said Deed it not appearing unto this Court that the said Sir Philip had any notice of the said Deed 9th of Feb. 1666. till after the death of the said Sir Robert Newton which was several years after the Marriage nor was privy or consented to the making of any such Deed but haveing intimation that Dame Elizabeth intended to dispose of her interest in her former Husbands Estate from such Husband as she should Marry broka off the treaty of Marriage which was afterwards brought on again by some Friends of the said Dame Elizabeth and that the said Sir Philip was induced to Marry the said Dame Elizabeth upon the hopes and confidence of having the interest she had in the Estate of the said Sir John Baker her former Husband without which he would never have married her and that the said Sir Philip never knew of the said Deed of the 9th of Feb. 1666 but the same was a fraud upon Sir Phillip and that therefore no use ought to be made thereof and decreed the said Deed of the 9th of Feb. 1666 be absolutely set aside and no use to be made thereof against the said Sir Philip or any claiming under him Poter contra Habbert 24 Car. 2. fo 591. THis Bill is to have a redemption of a Mortgage made in 1636 Mortgage by the Plaintiffes Father to one Abraham Dawes for 5000 l. and for non-payment of the Mortgage mony Sir Thomas Dawes Son and Heir of the said Abraham Dawes entred in 1641 and he and his Assigns have ever since taken the profits And the Defendant insists that the said Thomas Dawes in 49 conveyed the mortgaged premisses to Hugh Hubbert the Defendants Father for 7000 l. and that in 1641 when Sir Thomas Dawes entred there was 5000 l. due on the Mortgage besides interest so he would be charged without 350 l. per Annum for mean profits since that time and would have 6 l. per Cent. Interest for the 7000 l. from the time it appearing on the conveyance This Cause being first heard by Judge Ransford who ordered the Plaintiffs to redeem Computation of interest monies according to the Statute in force and the account for the Interest of the 500 l. to begin from 1636 the time of lending the mony and from that to 1642 Interest to be paid according to Acts then in force and from 42 to 46 Interest at 8 l. and 4 l. per Cent. The Cause being heard again by the Lord Keeper Bridgeman assisted with Judge Tyrrle Morton and Wild who ordered the
prejudicial to the King or his Government which the Affidavit doth not specifie and if that were yet no Writ doth regularly lie in this Case against a Lay-man to find Security as this Writ is but only against a Clergy-man neither is the Writ Indorsed as formally it ought to be Supersedeas and therefore ought to be superseded and several Cases were offered and Presidents produced on the behalf of the Defendants But the Plaintiff insisted The Causes of a Ne exeat Regnum that by the Affidavit of Sir John Read the Defendant conveying and making over his Estate to others standing out an Excommunication and absconding his person and giving out That he intends to go beyond the Seas the said Writ is well warranted and for Justification thereof several Cases and Presidents were urged and it appearing that the only matter which carries any countenance or pretence of irregular issuing the Writ that it ought to be for a Clergy-man to find Security and not for a Lay-man is an Opinion taken up in a Posthumous Work of the Lord Coke 3 Inst 179. being called his 3d Institutes contrary to the general Authorities Presidents and Practice of granting Writs of Ne exeat Regnum in former and later Times which are usual against a Lay-man to find Security as well as a Clergy-man or else there can be no Writ at all to be found in the Register against a Lay-man to find Security in any case Lay-men to find Security as well as Clergy-men upon a Ne exeat Regnum or any Ne exeat Regnum against a Lay man neither is there in the Register any such form of Indorsing the Writ as is suggested but what is inserted in the Register is but a Note of some Observer So that his Lordship with the Judges are of Opinion upon the whole Matter that there is no ground to grant a Supersedeas of the said Writ of Ne exeat Regnum but that the same was well granted and ought to stand and Ordered it accordingly Dixon contra Read 20 Car. 2. fo 46. 561. THe Bill is No relief against a Bond entred into to a Solicitor to pay 100 l. when a Verdict should be recovered That the Plaintiff being Sued by the Defendant Read in the Sheriffs Court in London upon a Bond of 200 l. for the payment of 100 l. to the said Defendant by the Plaintiff when the said Defendant being a Solicitor should recover a Verdict on the behalf of one Thrale upon which Bond though the Defendant was so far from being instrumental in getting any such Verdict that he acted for Thrale's Adversary yet the Defendant hath gotten a Verdict on the said Bond Whereupon the Plaintiff removed the Cause into the Mayor's Court and from thence into this Court by Certiorari and the Plaintiff according to proceedings in such cases proved his Suggestions Yet the Defendant without a Procedendo Procedendo hath removed the Proceedings back out of the Mayor's Court into the Sheriffs Court and hath there taken out Execution and taken the Plaintiffs Bail thereupon and levied 102 l. This Cause was heard by the Master of the Rolls who saw no cause in Equity to Relieve the Plaintiff against the Penalty and Interest of the said Bond. This Cause came to a Re hearing before the Lord Chancellor being assisted with the Lord Chief Justice Hales who were of Opinion with the Master of the Rolls and confirmed his Decree Smith contra Holman 20 Car. 2. fo 192. THat the Defendant caused the Plaintiffs Bail at Law to be Arrested soon after the Plaintiff and Defendant had joyned in a Commission for Examining of Witnesses which was for the same Matter here in question and also about two days before the Execution of the Commission the said Defendant caused the Plaintiff to be Arrested when he was preparing for the said Commission so that the Plaintiff could not execute the same The Plaintiff prays That the Defendant for such his Abuse Plaintiff two days before the Commission for Examination of Witnesses was arrested by the Defendant and in Execution ordered to be discharged and the Defendant to pay Costs and be at the charge of a New Commission being against the ancient Priviledge of this Court to Suitors that are in the management of their Causes in this Court may stand Committed and pay the Cost of the last Commission and damages sustained by the said Arrest The Defendant insisted he was ignorant of such Priviledge and that the Plaintiff was now in Execution This Court in favour of the Desendant spared the Commitment but ordered him to pay the Plaintiff Costs of the last Commission as also his costs and damages sustained by reason of the Arrest Imprisonment and Prosecution thereon and referred it to a Master of this Court to Tax and that the Plaintiff giving a new Judgment for the debt in question the Defendant shall at his the Defendants Charges presently release and discharge the said Plaintiff out of Execution and the Defendant to be at the charges of a New Commission and the Plaintiff to take an Injunction till Hearing of this Cause Wiseman contra Foster 20 Car. 2. fo 731. THe Plaintiffs Father George Brigges by Will devised to the Plaintiff Ann 500 l. for her Portion which was appointed to be paid to her at the Age of One and twenty years or day of Marriage and made the Defendant Dame Ann Foster his then Wife and his Son George his Executors and by a subsequent Clause in his Will declared That it should be in the power of his Executors to order and dispose of the Plaintiffs Portion according to their discretion to the use of the rest of the Children unless the Plaintiff should marry by the advice and consent of the Defendant Dame Ann and others who were Overseers of his Will or the greater part of them And the Defendants insist That the Plaintiff hath Married without such consent therefore ought to have but 250 l. Whereas the Plaintiff insists That the said Clause was intended only in terrorem and awe to the Plaintiff Ann to induce her to take heed how she married and not that she should lose any part of her Portion so as she married one who deserved the same which she hath done with the consent of the Major part of the Overseers The Defendants insist Portion to be paid on Marriage with consent of c. Some consent and some not yet decreed to be paid That the Plaintiff marrying as aforesaid ought to have but 250 l. as by the Memorandum in the Will and the rest to be distributed amongst the other Children of the Testator But the Plaintiff insists That in this case there was not by the Will any devise over to the said other Children This Court upon Reading the Proofs touching the approbation of the Major part of the Overseers and their consent to the Plaintiffs marriage decreed the Defendants to pay the Five
Plaintiff to pay interest for for the 5000 l. to 1641 at 8 l. per Cent. and from 41 to 49 the certain profits of the Mortgaged premisses to go in discharge of the interst till that time and that if the remaining interest with the 5000 l. should in 49 amount to 7000 l. then the Plaintiff to pay Interest for 7000 l. else only for so much as the principal and Interest according to the Statutes in force This Cause was again Reheard by the Lord Chancellor Shaftsbury assisted with Judge Vaughan and Judge Ransford The Defendant insisted that setting of the interest against the certain profits from 41 to 49 as aforesaid was a great advantage to the Plaintiff and that after so long a time the Plaintiff ought not to be permitted to redeem This Court nevertheless was satisfied That the Plaintiff ought to redeem and the Matters now in Controversie being Whether the certain Profits of the premisses shall go against the Interest from 41 to 49 or not and whether the Plaintiff shall pay Interest for any more than the 50000 l. first lent or not and what Interest he shall pay at least during the hard times of War This Court on hearing Presidents was clear of Opinion The certain Profits of the premisses set against the Interest That the Setting the certain Profits of the premisses against the Interest from 41 to 49 ought to be discharged and decreed the same accordingly And touching that Point for what Monies the Plaintiff shall pay Interest either for the 5000 l. only or any greater Sum. This Court with the Judges were of Opinion That the Plaintiff ought not to pay Interest for any greater Sum than only for the 5000 l. the Original Mortgages This Court declaring there is no Reason to give Interest upon Interest Interest upon Interest and that the now Defendant ought not to be in any better condition than Sir Abraham Dawes the first Mortgagee Crisp contra Bluck 25 Car. 2. fo 357. THis Case comes to be heard upon a Bill of Review Bill of Review and an Appeal from a Decree made by the Lord Chancellor Shaftsbury the Plaintiffs Original Bill being to be relieved against a Bond of 1600 l. penalty for payment of 1000 l. and Interest entred by the Plaintiffs Father the Testator and others to William Bluck the younger in 1642. The Defendant commenced Suit on the said Bond in 1662. Bond and Judgment after upon it and the Principal and Interest far surmounted the Penalty when Judgment was entred how payment of Monies shall be applied in such case and had Judgment thereupon against the Plaintiffs Father only and the Principal and Interest due on the said Bond far surmounting the Penalty when Judgment was obtained and the Defendant being 20 years kept out of his Mony but having received several Sums in part since the Action at Law brought it was decreed That whatever Monies were received before the Judgment actually entred should be taken in discharge of the Interest of the said 1000 l. Original debt and that the Defendant should be satisfied after the Judgment entred the whole Mony thereupon recovered with damages from the time the Judgment was actually entred deducting what he had received since the actual entry of the Judgment and allowing his Costs at Law and moderate Costs in this Court And it was found that the Judgment was not actually entred till the Vacation after Michaelmass Term 1662. and so only 250 l. paid in November 1662. Whether Mony paid shall be applied to discharge Interest of the Original debt or towards satisfaction Recovered by Judgment on the same Bond. Judgment when said to be entred was accounted Interest of the Original debt and not towards the Mony recovered by the Judgment and the Account was so setled and decreed and the Mony paid accordingly Yet for Reversal of the said Decree the now Plaintiff for Error assigns that the same tends to the invalidating of the Course of the Court of Kings Bench it being by the Decree admitted that the said Judgment was entred in the Vacation after Michaelmass Term 1662. and not before Whereas it is evident by the Records of the Kings-Bench the said Judgment was entred on Record in Michaelmass Term 1662. and by construction of Law is supposed and presumed to be Recorded the first day of that Term against which Record no Evidence or Averment ought to be admitted and all Monies paid after the first day of that Term ought in Equity to be applied towards satisfaction of the Judgment and so the 250 l. paid in November 1662. in part of a debt in question ought not to go to satisfie the Interest but in part to discharge the Principal The Lord Chancellor Shaftsbury was of Opinion If entred before the Effoin-day of the subsequent Term ought to be accounted a Judgment of the preceding Term. That no Notice could be taken of any actual entry of any Judgment at Law but that every Jugment whensoever entred if before the Essoin day of the subsequent Term ought to be accounted a Judgment of the first day of the Term before and allowed and held the said Error to be good and decreed the 250 l. paid in Nov. 1662. should go and be applied as part of satisfaction of the 1600 l. and damages due on the Judgment and what other Monies were paid by any other of the Obligors their Heirs Executors Administrators or Assigns since the 20th of October 1662. if not paid on other account shall be applied in further satisfaction of the said Judgment first to discharge the Interest and then to sink the Principal and as to so much did reverse the said Decree and the Defendant appealed from this said Decree to the Lord Keeper Finch and insisted That by his Answer to the Original Bill said when the 250 l. was paid the Judgment was not entred and presently after Hearing the Original Cause the late Lord Keeper Bridgman calling to his Assistance the Master of the Rolls who declared That the Defendant should not account for any Mony as received on the Judgment until the said Judgment which was his Security was really and actually entred if the Plaintiff insisted as before which was Over-ruled and the Plaintiff then brought a Bill of Review to which the Defendant pleaded and demurred and thereupon the Lord Bridgman declared the Decree to be Just as to the 250 l. and the Decree made by the Lord Shaftsbury is to unravel the Account setled and to charge the Defendant with 4000 l. when by the Original Bill or Bills of Review they do not charge him with above the Penalty of the said Judgment This Court now declared That the Examination of the time of the actual Entry of the Judgment in this Case Examination of the actual entry of a Judgment at Law only intended to inform the Court and not to impeach the Judgment did not impeach the Judgment but only to guide the
by the Defendants as aforesaid was by reason the Title in Law was in Comber the Mortgagee and not upon the Vallidity of the Will and that a Verdict had been had in affirmation of the said Will for other Lands therein mentioned and the Testator was in possession of the premisses at the time of his death This Court the Defendants insisting to have it tryed at Law whether a Revocation of the said Will or not declared there was no Colour to direct any Trial at Law in this Case for that on reading the proofs it plainly appeared When the Mortgage money is paid the Mortgagee and his Heirs are Trustees for the Mortgagor and his Heirs that the Testator expresly declared the said Will should be his last Will and that upon such an express proof it would be vain to direct a Tryal at Law and declared that when the Mortgage money was paid the Morgagee and his Heirs immediately from that time became Trustees for the Mortgagor and his Heirs and the Court having considered of several presidents as well Antient as Modern A Will and after that a Mortgage the Will is Republished its a good Will and not revoked which were full in the point that notwithstanding such Revocation yet there was a Republication of the Will and that the same was a Republication of such a nature that made the said Will a good Will and decreed the Defendant Grace to enjoy the premisses according to the said Will. This Cause came to be Re-heard before the Lord Chancellor Jefferies who was well satisfied with the Republication and declared that notwithstanding the said Mortgage the Will was a good Will and not revoked and confirmed the former decree Pullen contra Serjeant R6 Cor. 2. fo 570. THe Bill is to have a discovery of the Estate of Ann Nurse deceased and a distribution to be made and the Plaintiffs to have their proportions thereof they being next of Kin to the said Ann Nurse viz. the Plaintiff Ann Wife of the Plaintiff Pullen Sister by the Mothers side of the said Testatrix Ann Nurse and the other Plaintiffs are of the same degrees of Consanguinity and so are Intituled to their equal shares of her Personal Estate Executrix dies before the Testator there shall be Administration cum Testamento annex ' and the said Ann Nurse made Ann the Wife of William Hodges Executrix who died before the said Ann Nurse and the said Ann Nurse died without altering of her Will That after her death the Defendant Serjeant a Relation to the said Ann Nurse took Administration of the said Ann Nurse's Personal Estate The Defendant insists That he being only Brother and one of the nearest Relations to Ann Nurse the Testatrix and her said Executrix dying before she Administred with the Will annexed and paid Debts and Legacies and is willing to Distribute as the Court shall direct and craves the Direction of the Court whether the Plaintiffs being of the half-blood shall have equal proportion with the Defendant and others of the whole blood This Court declared They of the half-blood shall have equal share of the Personal Estate with those of the whole blood That the Plaintiff who are of the half blood to the said Ann Nurse were equally intituled to a Distribution of the said Estate and to an equal share of the Defendant Serjeant and others who are of the whole blood and decreed the same accordingly Keale contra Sutton 36 Car. 2. fo 773. THE Defendant being Arrested in the Marshalls Court A Prohibition granted for Arresting in the Marshalls Court for matters arising in Berkshire for matters arising in Berkshire out of the Jurisdiction of that Court This Court granted a Prohibition which being Disobeyed an Attachment was ordered against the Persons Disobeying the same and the Defendant to proceed upon the same Carvill contra Carvill 36 Car. 2. fo 142. THat the Testator Robert Carvill by Will the fifth of June 1675. Will. and thereby gave the Plaintiffs several Legacies and also Legacies to the Defendants which he appointed to be paid by Sale of Lands after the death of his Sister Rosamond whom with the Defendants he made Executors and gave his said Executors residium bonorum and in 1678. died and the said Rosamond is dead That the Defendant Robert Carvill being the Eldest Son of Henry the Testators Brother is his Heir at Law who insists That the Testator made no such Will and that he claims the said Lands by Dissent or if any such Will was made the Testator was non compos at the making thereof and that no Person was named in the said Will to Sell the said Lands and insists on the Act against Frauds and Perjuries and Avers Statutes of Frauds and Perjuries That the Testator died not till 1680. and that he did not make and sign that Will according to the said Act there being no Witnesses that have Attested it according to that Act and doth therefore insist that the same is void in Law as to the Devise of Lands and that the same are come to him as Heir and he hath since Recovered the same at Law and insists also that the said Will is void in Law because no Person is appointed to make Sale and being but a voluntary Disposition for payment of Legacies and not Debts the Plaintiff ought to have no Relief to make the same good in Equity to the Disinherison of the Defendant the Heir at Law But the Plaintiffs insisted Though the Testator died after the said Act viz. December 1678. yet the Will was made long before the 24th of June 1677. and so is not within the intention of the said Act and that though no Person be in express words named to Sell the Lands yet the Sale ought to be made by his Executors and the Heir ought to be Compelled to joyn in the Sale The Defendant the Heir insisted That though the Will might be out of the provision of the Act being made before the making of the Act yet there is no good proof that any such Will was made or published by the Testator This Court directed it to Law on this Issue Devisavit vel non devisavit Will or not Will. and a Verdict passed for the Plaintiff This Cause coming to be heard on the equity reserved and this Court being satisfied with the Verdict which was viz. That the said Robert Carvill the Testator did make and publish such Will and thereby devised the said Lands to be sold as aforesaid This Court upon reading the Will Lands Devised to be sold and now express't to sell the same Executors Decreed to sell decreed the said Lands to be sold by the said Executors and the said Legacies to be paid thereout according to the said Will. Norton contra Mascall 36 Car. 2. fo 544. THE Suit is to have a voluntary Award performed A voluntary Award Decreed to be performed the Defendant insisted It being a voluntary
Countess who conceives her self to be Intituled as Grandmother to an equal share with any of his Brothers and Sisters and insists That the said Lady Katherine dying within less than a year after the Intestate Thomas Wentworth she was not by the said Statute Intituled to any share of the said Personal Estate her supposed Right being meerly a thing in possibility and Expectation which vanished by her death within the year And the Defendants insist That the Countess before her Marriage with the Plaintiff the Earl viz. in 1673. granted Lands to Trustees for 21 years if she so long lived in Trust out of those Lands and other Lands late of Sir John Wentworth to pay her 200 l. per Annum till the said Thomas was 12 years of Age for his Maintenance and after till 21 so much as the said Trustees thought fit and the Residue for the benefit of the said Thomas his Heirs and Assigns That the said Defendants with the Countesses Approbation out of the moneys arising by the said Trust made several Purchases in their own Names and declared the Trust thereof for the said Thomas Wentworth and his Heirs and the Defendant Dame Dorothy made other Purchases in her own Name with the said Thomas his momey which she received in Trust for him and insists that those moneys so invested in those Purchases in the life-time of the said Thomas in Trust are not nor at his death were any part of his Personal Estate but the Lands descend to the Defendant John Wentworth as his Heir That Sir John Wentworth died in 1671. and left a great Personal Estate which came to the Earl and Countess on their Marriage and that Sir John Wentworth died Intestate within the Province of York the Defendant John Wentworth being his younger Son unpreferred became Intituled to a third part of his Estate equally with his Widow by the Custom of that Province and by force of the said Act for setling Intestate Estates Thomas and John became Intituled with her to the other third part The Defendants farther insist That the said Earl is not nor can be Intituled to any share of the said Thomas Wentworths Personal Estate for that the Act of Parliament is only Authoritative and directive to the Ordinary and Administrator and there are no vesting words therein whereby to Intitle the Lady Katherine to a share of the Estate and that she dying before any distribution and within the 12 Months allowed to that purpose her share fell among her Surviving Brothers and Sisters and however if she was Intituled to any part it could only be to a half-share she being but of the half-blood to the deceased and that so in the Course of the Civil Law But the Plaintiffs insisted The said Act explained That though the Act of Parliament be only Authoritative and directive to the Judge and yet such Authority and direction in an Act of Parliament doth by Judgment and Implication of Law vest an Interest in the Wife Children and Kindred for whose benefit the Act was made as much as if it had been a bequest of residuum bonorum for that the Act appoints all Ordinaries whatsoever on granting any Administration to take the Bond prescribed thereby one Clause of the Condition whereof is to pay the surplus that shall be found due on such Administration account to such Person or Persons as the Judge by his Decree or Sentence to that Act shall limit and appoint and then appoints the Ordinaries and Judges repectively to order and make just and equal distribution of such surplus amongst the Wife Children or next of Kin according to the Rules and Limitations therein and the same to Decree and settle which is the very Title of that Act and that tho' there be Twelve months time given for distribution yet that is only with respect to Creditors and no way hinders the vesting the surplus in such persons as are appointed to have it immediately upon the Trustees death any more then a Legacy to be paid in futuro and that it is generally a much longer time before an Intestates Estate can be got in and the surplus known and if the Executors or Administrators of persons dying in the mean time shall lose their shares it will elude the intent of the Act of Parliament which was made for the benefit of the Wife and Children and Kindred generally And it will lye much in the power of an Administrator by retarding his Account to prevent another of his share nay it will be mischevous to the Administrator and those who shall claim distribution for that if no Interest be vested in any before an actual distribution by Decree or Sentence then no distribution can be by Agreement or Consent of the Parties nor let the occasions or necessities of any claiming distribution be never so great can any Administrator satisfie the payment of any part of the Estate till such Sentence or Decree made which the Law makes could never intend and if no Interest be vested by that Act then hath this Court no Jurisdiction to intermedle therewith for that the Act only directs the Ecclesiastical Judge Distributions according to the Act for setling Intestates Estates are made in Chancery as well as in the Ecclesiastical Courts to make a Decree or Sentence for distribution but the same vesting an Interest and there being no Negative Words that a distribution shall be sued for there and elsewhere several distributions have been made in this Court as well in the Lord Chancellor Finch his time and the Lord Keeper North's time as since and that the same is looked upon as a Point setled and that it is the constant course of the Ecclesiastical Courts to Decree the shares of any persons dying before distribution to the Executors or Administrators of such persons so dying and not to the Surviving person claiming distribution and this Act was intended as the Will of every Intestate and the Wife Children and Kindred respectively to be as well intitutled as if the Intestate had made a Will and so Bequeathed the same amongst them and for the half Blood and whole Blood the same hath made no distribution between them but appointed the distribution to be equal and that for the Monies alleadged to be invested in Lands such Purchases do not alter the nature of the Case for that Thomas being a Minor could not give Authority or Consent for it and he might have discended to it when at Age and dying in Minority the same still remains part of his personal Estate and the Land is but in the nature of a Mortgage or additional Security for it This Court declared they saw no cause or colour to Decree any share for the Desendant Dame Dorothy and conceives her no way intituled to any but as to the Plaintiff the Lord Winchelsey This Court declared they were fully satisfied that the said Act of Parliament doth immediately upon the death of an Intestate If any of the next
or any Estate therein contained or to dispose of the said Honours Manours and Lands in any other sort or to any other Person or Persons and his or their Heirs or for any other purposes and the same his Mind Intent and purpose should signifie and declare in Writing under his Hand and Seal in the presence of six Credible Witnesses three whereof to be Peers of this Realm and should pay to his Trustees or any of them the Sum of Six pence with intent or purpose to frustrate or make void the said Indentures That then and not otherwise and immediately after such Signification Declaration and payment or tender of payment of 6 d. as aforesaid the said Use and Uses Estate and Estates Trusts Confidence Intents and Purposes and all and so much of the premisses whereof the Duke should make such Signification or Determination should cease Determin and be utterly void to all Intents Construction and Purposes whatsoever and that then and from thenceforth it should and might be lawful for Duke by such Writing or any other Deed or Writing Subscribed Sealed and Testified as aforesaid to declare new or other Use or Uses Trust or Trusts of all or so much of the premisses whereof the Duke should make any such Signification or Declaration or otherwise to dispose of the premisses or any part thereof at his Free Will and Pleasure any thing in the Deed to the contrary notwithstanding And for the further prevention of the mischief and Inconveniences that might attend any future or suddain Surreptitious Will Covenant which might at any time defeat his Recited Will which he declares to have made upon Mature Deliberation Covenants for himself his Heirs Executors and Administrators with the Duke of New-castle and his Trustees that he would not Revoke Annul or Discharge the said Will or any the Legacies thereby devised unless by some instrument Sealed and Executed in the presence of many and such Witnesses as are in the said Proviso specified declared and described for Credible Witnesses within the said Proviso according to the Intention Literal Sense and true meaning of the Duke expressed in the said Proviso He denies the said Deed was obtained by Surprise but that the Duke executed the same in the presence of many Credible Witnesses and that the Duke left the Deed and Will in his keeping And as to so much of the Bill as requires the Defendant to give an account of what part of the said Dukes Personal Estate came to the Defendants Hands he is Advised by the Rules of this Honourable Court that he is not Compellable to Answer thereunto for that it appears by the Plaintiffs Bill that at the time of the Exhibiting thereof the Plaintiffs were not intituled to make such demand or to have such account it thereby appearing of their own shewing that they have not proved the said Will of 87. but that the same was and still is under Controversie undetermined in the Prerogative Court whereof or as to that part of the Bill he demurs As to the Objection That it was a Concealed Will and Deed the Defendants insist that it was done silently but the Duke would have it kept Secret that he might be free from Trouble and Importunity And they insist That as to the last Will of 85. That the Duke Advised with Councel to know whether a Will made after the Settlement would avoid or impeach the Settlement was answered that it would not and that Proviso must be strictly pursued whereupon he was well satisfied and that the said Deed ought to be supported and not set aside in Equity being made upon such Meâ—â—torious Consideration of Blood Merit c. The Plaintiffs insist That the said Deed if any such being a Voluntary Settlement only that the Will of 87. is a good Revocation thereof in a Court of Equity So that the great Question was if the said Deed it being found to be valid at a Trial at Law is Revoked by the said last Will according to Equitable Intention or Construction This Cause having been Debated and Argued several times by Learned Councel and afterwards by three Judges viz. my Lord Chief Justice Holt the Lord Chief Justice Treby and Mr. Baron Powell it was agreed by them that the Deed was a good Deed well executed and not Revoked by the Will of 1687. The Lord Chief Justice Treby's Argument in short was thus In 1675. the Duke made his Will and declares in respect that the Earl of Bathe was his Kinsman and had done many Kindnesses to him and his Family the Earl should have the greatest part of his Estate and gives several Legacies to one Monck and then he makes a Deed of Settlement in 1681. tho' the Limitations by the one and the other differ but it is not made to revoke but to confirm the Will Both the Will of 1675. and Deed of 1681. do agree in giving the greatest part of the Estate to the Earl of Bathe but the Proviso in the Deed makes the dispute and then there is a Will of 1687. wherein a larger Estate is given to the Dutchess and Colonel Monck c. and desires the Honour of Potheridge may be established on the Moncks The Plaintiffs Bill is to establish the Will of 1687. and set aside the Deed of 1681. and Will of 1675. And the Deed on the Hearing of the Cause was directed to be tried and a Verdict for the Defendant and the Plaintiff hath acquiesced under it and so this Deed must be taken as a good Deed and Conveyance without any suspicion for the Right was tried and the whole Contents tried and if it were good at Law whether there be cause to set it aside in Equity is the Question He was of Opinion That the Deed was a good Deed and ought not to be impeached in this Court The Plaintiffs Arguments against the Deed are 1. Surprize 2. Concealment 3. That the Will of 1687. is a Revocation in Equity 4. That there is a Trust As to the Surprize He observed they did not make use of the word Fraud in gaining the Deed but that it was something put upon the Duke for want of deliberation He said he was not satisfied that there was any Surprize on the Duke for he was not languishing at that time under any Sickness but it was done and executed in good Company and after dinner with great Consideration both before and at that time They pretend a want of Circumstances in the execution whereas Sir William Jones was advised with before the Deed sealed and present at the time of the sealing Several other Circumstances were insisted on by the Plaintiffs but none are sufficient to set aside the Deed. The Deed of 1681. and the Will of 1675. are not inconsistent tho' they differ in the limitation of the Estate But by both the greatest part of the Estate is given to the Earl of Bathe Tho' they could not find Instructions for drawing the Deed tho' the Deed was