of my Lord of Bath It doth plainly appear there was a most particular Friendship and mutual Confidence between them in Matters of the Highest Nature and Chiefest Concern Nay that this proceeded so far on my Lord of Bath's side in Duke George's time that he prevailed with King Charles the II. to promise under the Sign Manual and recommend it to his Successors to Create my Lord of Bath Duke of Albemarle if here were a failure of Issue by the Duke Then that this Friendship did continue between Duke Christopher and my Lord of Bath is plain beyond all Controversy for it began upon a very good Foundation That is Whereas the Garter should have been given to the Earl of Bath he prevailed to have it returned to the Young Duke and it continued so much all along that there was nothing of Moment relating to the Duke's Affairs in which the Earl was not mainly concerned And all this is proved by a Series of Letters continuing down from the Death of Duke George to the Death of Duke Christopher In 74 he sends him Word he had pursued his Advice and his Advice should always be very prevalent with him In 75 he tells him he expected to see him with great Impatience because he was not able to go on in the Regulation of his Family without his Assistance and Advice that he had finished his Will and would make all more Perfect when he came to him It should seem his former Will was trusted in my Lord's Hands and when that was returned or brought up in a few Days after this Will of 75 is made and by that all the Estate or the main of it is given to my Lord of Bath and it was the first Will I think that he made after he came of Age and had any Power to dispose of his Estate in Land and thereby as I said he Deviseth the bulk of it to my Lord of Bath He always desired as the Will declares That in case he had no Issue the Earl might succeed him in his Honours and Estate as well out of true Affection to him as his nearest Kinsman on his Father's side as out of due Gratitude for the many Acts of Kindness and Service done by the Earl beyond all the rest of his Kindred and Friends upon which he humbly desires his Majesty to confer the Dukedom upon him and that the Eldest Son of the Earl and so successively the Eldest Son of the Family should be called Lord Monk to preserve his Name and Honour in Memory of his Father and of himself There cannot be Words that express more Kindness and Respect and intention of Advantage than are here used There was an Attempt by Proofs in this Cause to shake the Credit even of this very Will but when the Counsel on that side came to speak to it they could produce no proofs that would at all come near it It is plain then that at this time no Man could have more Kindness for another than the Duke had for the Earl In the Year 78 there appears the same sense in the Duke of the Earl's Friendship by his Letters and the Obligations of Gratitude he had to him That he had no Friend in whom he could confide but himself and desiring him to come to assist him in the Management of his Affairs That his Kindness and Friendship was never to be forgotten without the Highest Ingratitude All this is a sort of Evidence against which there is no opposition to be made so it also continued to the Year 80. when he sent him word of a Servant's death and desired him to secure his Papers and Accounts Thus it stood to the time of making that Settlement and while the Duke and he were upon such Terms with one another it was no strange thing that he should make such a Deed as this and the manner both of preparing and executing it seems far from having anything of surprize in it Then the next thing that hath beeen urged was that this being a Settlement under a power of Revocation which he intended to make use of it was Secreted and Concealed from him so that he could not know what his Power was and several Cases were put where a Man in such Circumstances knowingly suffers a Purchaser to go on with his Bargain he shall not have any Advantage by such a Concealed Settlement Those Cases were all admitted to be good and particularly that mentioned by Mr. Baron Powell and my Lord Ch. Just Treby the Case of Mr. Clare And I think truly I need go no further than to say That there is no Resemblance between that Case and this That is where a Purchaser is concerned and the Person that conceals the Deed suffers the Purchaser to proceed without giving him any notice If indeed there had been a full and clear Proof that the Duke had a real intention to Revoke this Deed if he could have known what he was to do in order to it and had been hindred by the Fraud anâ— Contrivance of any Person concerned in it in point of Advantage and if by such Concealment it was impossible for him to know the true Circumstances of his Power that would have made a different Consideration in a Court of Equity but there is no Proof that these Deeds were ever in the hands of my Lord of Bath till some little time before the Duke went beyond Sea when the Duke delivered them to him For as to Aleman's Deposition that was but a delivery upon the Execution and not a delivery for Custody And my Lord of Bath in his Answer says He had not them till then expressly so that as far as that goeth it is all the Evidence you have where the Deed lay all the while And his Answer is fortified in this by what Mr. Courtney says that my Lord told him when he came to him that the Deed it self was in the Hands of the Duke and he had received the Draught from the Duke to advise upon And it is further verified by two Material Facts by the Abstract that was taken about some two Years before by Sir Thomas Stringer and by what is admitted on all hands was by my Lord of Bath delivered up when the Will of 87 was preparing and that the Will of 75 and Deed being produced together under the Duke's Seal after his death it is to be taken that both together were put under the Cover and Sealed up by the Duke and delivered to my Lord of Bath as he himself says in his Answer There being then so much ground to believe that the Deed was in the Duke 's own hands what Obligation should there be supposed to lie upon my Lord of Bath to make any mention of it to him It was always intended to be a private thing that is plain There is no Proof what the purposes of the Duke were in making the Will the Purport and Effect of the thing speaks it self But my Lord of Bath says That
with Sir Thomas his own Hand Errington has proved the Abstract al of Sir Thomas his Hand with the very date in it and swears that Sir Thomas examined it with him Now is it to be imagined that Sir Thomas Stringer should prepare such a Settlement for the Duke to execute without any Order or Instructions from him about it No certainly that cannot be thought But they say Sir Thomas Stringer if he did draw it might forget it or overlook it and he now denies any Knowledg of it Truly I cannot value much what Sir Thomas Stringer has sworn in this Cause he is not consistent with himself and makes but a very odd Figure in the Cause Mr. Stringer My Lord I beg your pardon for interrupting Mr. Baron Powell but I must vindicate my Father he never swore a word in this Cause Lord-Keeper No he did not he was dead before the Cause came into the Court. That was a Mistake Mr. Baron Powell I am sure there was Oath of what he had said about this Deed. Mr. Stringer That my Lord you may make what you please of but he never made any Oath in the Cause Mr. Baron Powell But that which I mention him for was that there is Proof apparent that he was advised with about this Deed and he was the Duke's constant Counsel I do not think I confess that Sir William Jones did draw this Deed it is not insisted upon by the Counsel of my Lord of Bath that he did and any one that considers the Frame of it will think as I do But I conceive he was advised with upon the Proviso and the Writing in the Margent against the Proviso I approve of this Proviso I believe to be his Hand Though several Persons of good Credit that were well acquainted with his Hand have sworn they believe it not to be his Hand But they might be mistaken and to me it appears by the Comparison of the Records Deeds and Papers in open Court for it is plain according to the various Nature of the several Things he writ or set his Hand to he did write several Hands and particularly wrote his Name sometimes one way and sometimes another And therefore upon Comparison of that with other Papers I do believe it to be his Hand The next Thing I would mention is this Here are six subscribing Witnesses to the sealing and executing of this Deed at Albemarle-House of which Sir William Jones was one And one Aleman that is one of the Witnesses swears That when the Duke delivered the Deed to the Earl of Bath he wished he could have done more for him It was probable then the Duke believed he had done something for him and it is very probable too he knew what he had done for him when he wished he was able to have done more And Mr. Prideaux swears though he does not exactly fix the time that the Duke told him himself he had settled his Estate upon the Earl of Bath Then I say it is hard to believe the Duke was surprized in making this Deed when his own constant Counsel drew it so able a Counsel perused and approved so main a part of it and was present at the Execution of it and he should express his Wishes to be able to do more can he be supposed not to know what he did But now let us examine the Evidence and Objections on the other side They say it doth not appear that this Deed was ever read to the Duke or by him It is indeed proved the last Will was read to him by my Lord Chief-Justice Pollexfen but not at the time of the Executing of it But however I think the not reading of a Deed to or by the Party that executes it is a very slender Objection to make out a Surprize so as to set it aside That would shake many a Conveyance I doubt it would shake many Deeds that were made and executed by the Duke For though he was so cautious as some of their Witnesses say that he would not execute any Deeds but what his Counsel set their Hands to yet I do not find that any of them used to be read to him or he himself read them at the time he sealed them Therefore it is a dangerous Doctrine to set aside a Deed upon such an Account Some People will not have Leisure to hear Deeds read or read them themselves Then they object the Mistakes and Mis-recitals of the Limitations of the Will in the Deed which refers to the Will as particularly that of Norton Disney and some others of less moment But God forbid that the Mistake of a Counsel in a Recital in a Deed should be of that great moment as to set aside the Deed when executed by the Party But there is another Matter much insisted on by them as an Argument of Surprize that is This Deed is pretended to be made in Confirmation of the Will in 75 and yet it varieth from that Will in almost all the Limitations of the Estates except in some part of that to my Lord of Bath I confess I have look'd over the Variations and there are several but I have this in general to say to it that I take it this Deed was made for the sake of the Earl of Bath and that it was for the Earl's better Security that he bound himself up by so strict a Proviso not to revoke And if you look into the Deed it will be found to confirm the Will as to my Lord of Bath which was the main Point of both Deed and Will For it sets the Estate given to him upon a firmer foot than it was by the Will which was revocable in its Nature Therefore it must be intended as no doubt it was for that very Purpose to secure it more to my Lord of Bath than it was by the Will But that which is said to be an Argument of the greatest weight and moment in this Matter that there must be Surprize in the Case is this It is hardly to be believed and almost impossible that the Duke should send for Mr. Monk out of Holland by his Will desire the King to bestow upon him the Barony of Potheridg the ancient Seat of the Family make a Disposition of his Estate by a Will so solemnly prepared and deliberated upon take care to have three parts of it one whereof was to be transmitted to the Dutchess of Newcastle another part delivered by himself to Mr. Monk and the third part taken with him to Jamaica and there pulled out and declared to be his Will and yet intend no real Disposition of his Estate by all this These are things so dishonourable to the Duke that they are not easily to be believed of a Man of his Honour and Quality I confess this is an Objection of great weight and carrieth much Presumption with it but it is Presumption only which how far it shall conclude against a Verdict is left to Consideration But besides I
would put the Case upon a like bottom of Presumption the other way and then see what we shall make of it Duke George prevails with King Charles II. to promise to make the Earl of Bath Duke of Albemarle upon his failure of Issue-Male Duke Christopher when he comes of Age doth make a Settlement of his Estate upon the Earl of Bath upon failure of Issue of his Body The Earl of Bath is a Person that doth heap Obligations upon both Dukes and their Family is Assistant to the Duke both in the Purchase and Sale of Albemarle-House is continually the Chief Person concerned in all his Affairs nothing almost is done without him There is no proof of any Misunderstanding or Ground for any between them Nay it was the Report in the Family That if the Duke died without Issue the Earl of Bath was to have the Estate He and Sir Walter Clarges are the Duke's nearest Relations whereas Mr. Monk that I find is not in the Case proved to be at all of Kin to him and so we must not take him to be related without proof but only that the Duke called him Cousin Now after all this that the Duke should make this last Will and give all this Estate to a Stranger for so as to any thing appears in proof and give nothing to the Earl of Bath when by the former Settlement he had given him such hopes of so great a Share this I think is a very Unaccountable thing and I confess I know not how to extricate my self out of the Confusion it causeth in me But I must set the one against the other as to that Objection and leave the Matter in the dark as to the Duke's Honour as I found it though I think I may give a further Answer to this Objection under the Second Head But I must speak something more under this for I would omit nothing that I conceive to be material in the Case There is another thing objected that seems dark in this Case and that is What was the meaning of some Parchments that were ingrossed by Thompson the Summer before the Duke went to Jamaica The Jury have found that this Deed was executed in 81. And if then the other Side would make use of this as insinuating that they were the same Deeds then that is not to be admitted as being expresly against the Verdict But to me it seems That these Deeds in 87. were made upon some design to have them executed then perhaps to settle the Estate upon a firmer foot than it was thought before The Earl of Bath perhaps might be Jealous that the Dutchess might prevail upon the Duke to revoke the former Deed in due form and therefore these Deeds might be prepared absolutely without any power of Revocation and thought he might procure the Duke to seal them so before he went to Jamaica I say that might be the Intention though what was the Design I cannot really tell But admitting that such Writings were prepared with such a design to get the Duke to execute them I know not that all this put together will be a sufficient Ground in Equity to set aside the Deed of 81. For all Designs in gaining of Deeds will not avoid Deeds actually made And that is plain from the Case of Bodmin and Roberts that was one of the Precedents used in this Case which was in short thus Mr. Roberts Son to the late Earl of Radnor married the only Daughter and Child of Bodmin who was so passionately fond of his Daughter that whenever she was in his presence he would break out into great Fits of Passion and weep for Joy to see her Notwithstanding this great fondness of his Daughter one Mr. Wynne took an Opportunity when Mr. Bodmin was under an Arrest and officiously came to Bail him and insinuates into him that his Son-in-Law was the occasion of his being Arrested and thereupon wrought so far upon him as to get him into a private place where he was removed out of his Son and Daughters Knowledge and where he went by a strange Name No one of his Friends had any access to him but Wynne himself and such as he would permit Mr. Roberts made frequent Application to be admitted to him but was refused which was all in proof While he was under this Concealment Wynne tampers with one Barry that had Mr. Bodmin's Will in his Custody and would have had him suppressed that Will whereby he gave his Estate to his Daughter It happens during his being thus secured he falls sick then there is a Will prepared for him to give this Estate away to Wynne from his only Daughter they get three Witnesses to the Execution of it This Will was never read over to him this appears in the proof but they get him to execute it And he dies Hereupon Mr. Roberts exhibits his Bill in this Court to set aside this Will There was proof made of all this Matter that I have opened and this Point of Surprize in obtaining this Will was insisted upon strongly The Lord Chancellor at the Hearing of the Cause was assisted by the Chief Justice Bridgman the Chief Baron Hales and Justice Rainsford But notwithstanding all this proof they could not prevail to set aside this Will in this Court and afterwards when they came into the House of Lords they were of the same Opinion and it ended at last in Relief by the Legislative Power an Act of Parliament This now I take to be much stronger for Relief if any could be than the Case now in Question and if then upon such apparent Surprize and Practice it could not be set aside in Equity sure this cannot where there doth appear no proof at all of any such thing I come then to consider the Second Head of Argument against this Deed that it was a concealed and forgotten Deed. Now that it was concealed from the Dutchess and those that were thought her Agents I agree it so and it is plain it was always intended it should be so But that it was concealed from the Duke I think has no Ground at all The thing they would infer it from is the Evidence of Aleman whose Testimony was read once and again and he says This Deed at the time of the Execution of it was delivered to the Earl of Bath whence they infer he carried it away and kept it concealed from the Duke who forgot it But upon reviewing Aleman's Deposition it can be understood to mean no other but only delivered to that effect as a Deed to his Use but not that it was delivered to him for Custody and carried away by him No truly it seems plain to me from all the Proofs and Circumstances of the Case That this Deed did remain in the Custody of the Duke of Albemarle For that Sir Thomas Stringer a little before the Duke went into Jamaica doth draw an Abstract of it in which the very date is mentioned which could not be drawn from
As to this Case I would observe first this is not a Case upon a Power of Revocation to devest an Estate nor a Performance of a Condition But further here are Instructions prepared and it went as far towards the Execution of the Power as could be till an Impediment came in the way by the Act of God in the Death of the Party Now I agree where there is an Impediment by the Act of God or Fraud or Default of the Party who claims by the Deed Equity may interpose But that doth no way come up to the Case in Question Then there is the Case of Dey and Thwaites which was lately in this Court Thwaites makes a Settlement to the use of himself for Life and afterwards to such Child and Children and for such Estate and Estates as he should by any Writing under his Hand and Seal testified by two credible Witnesses limit and appoint He afterwards makes a Will and has but two Witnesses to it so that they did not cite the Case right that said there were not two Witnesses but two Witnesses are not enough by the Statute to make it a good Will and thereby he giveth a Rent of 100 l. a Year to such a Child and dies Now one great Question was Whether the Power being to limit Estate or Estates he might limit a Rent out of those Lands It was held in Equity he might and truly I think that he might at Law There is I confess an Opinion against it in the Case of Brown and Taylor where there were three Judges against one But really I think it is good at Law A second Question was Whether this being void as a Will by the Statute should be yet a good Declaration of the Trust and an Execution of the Power And I think the Court of Equity did very well in decreeing it to be Good For tho it were not effectual in all Points as it was intended as a Will yet it was a Writing which had all the Circumstances required by the Power and therefore I see no reason to question whether it were Good The next Case is the Case of Ward and Booth and that stands thus Sir Thomas Brereton made a Settlement with a Power of Revocation by a Writing under Hand and Seal before two Witnesses and he in a Passion one day tore off the Label with the Seal but afterwards repented Delivered it to the Trustees to be preserved to the Uses And enquiring whether what he had done amounted to a Revocation and being advised it did not he was very well satisfied This Cause came to be heard before my Lord Nottingham and adjudged no Revocation it appearing there was a continued Intention not to revoke But I desire to read part of the Ground that Decrce went upon for that justifies what I said in case where there is a Disability or an Impediment by Fraud this Court may relieve though there be a formal Revocation There is but one Precedent more that I shall mention and that I take to be directly for the Earl of Bath It is the Case of Arundell and Philpott Mary Philpott being a Widow seized of Lands made a Settlement upon the Defendant with a Power of Revocation upon the tender of a Guiney She afterwards makes another Settlement upon the Plaintiff but without any proof of the tender of the Guiney Upon a Bill suggesting her Intention to revoke the Plaintiff could not prevail in this Court to set aside the first Settlement but was dismist to Law and ordered to try the Title within a Twelve-month whether Revoked or not Revoked And there were afterwards a Trial and the Tender of the Guiney did happen to be proved and so the Power was well executed at Law But this Court would not interpose to set it aside as a Revocation in Equity upon the Intention only without a proof of the due Execution And upon the whole Matter I conclude that in a Court of Equity there cannot be a Revocation of a Deed to which a Power to revoke is annex'd but what is pursuant to that Power unless there be either an Impediment from the Party that claims by the Deed or a real disability to execute according to the Circumstances And I think neither of these are in this Case nor are any of those Matters alledged of Surprize Circumvention Concealment or the like any good grounds to set aside this Deed if they were proved which I think there is no pretence of Lord Chief Justice TREBY I Am of the same Opinion with my Brother Powell I shall state the Case as it stands upon this Deed and Will The Will was made in 1675 the Deed in 1681 and shall take notice as I find there was much use made of it on one side of what the Expressions are in the Will and somewhat of what Deficiencies there were of Expression in this Deed. In 1675 the Duke of Albemarle made his Will and by that Will he declares That in respect of my Lord of Bath's being one of his nearest Kindred and out of Gratitude due to him for many Acts of Friendship and good Offices done to him and his Family his Will was that he should inherit all the Parts of his Real Estate not therein otherwise disposed of and therein he desires the King to grant to the Earl of Bath and the Issue Male of his Body the Title of Duke of Albemarle and that his eldest Son might bear the Title of Lord Monk And this was intended in Trust to pay all his Debts and certain Legacies in the Will He therein gives a Legacy of 1000 l. to Henry Monk not the Father of the Plaintiffs the Monks who it doth not appear was any ways related to him Six Years after in 1681 this Duke Christopher makes a Deed and in that Deed recites this Will true as to the Date but mistakes it in several Particulars This Deed settles the main part of the Estate after the Duke and Dutchess their death without Issue by the Duke upon my Lord of Bath part of it immemiately after his own death without Issue other parts upon Sir Walter Clarges and Mr. Greenville And it has been observed that almost all the Limitations of the Estates in the Deed differ from those in the Will at least in express Terms if not in very Substance This Deed also sets forth the Grounds why the Duke made it and it is to this Effect He doth declare he was so unfortunate that his next Heir at Law was descended from a Regicide and therefore I would observe it was not only to confirm the Will as they would have it but for preventing so dishonourable a Descent of the Estate which he owed to the Bounty of the Crown and for conveying and settling and assuring the Lands to the Uses thereinafter declared and confirming and corroborating that Will which he did not intend to revoke and to prevent any Claim either by the Heir or any pretended surreptitious Will which
therefore might in these Particulars vary in the Deed from the Will of 75. But I would still have this observed that in substance they do agree he doth preserve the same Favour and good Intention for my Lord of Bath to give him his Estate as his nearest Kinsman If then these Limitations in the Deed were pursuant and agreeable to the Duke 's then Mind it is no matter if there be any such Variations or Alterations from what was in the Will and that it was agreeable to his Mind then I shall by and by take notice of some things that occur in this Case and which seem to satisfy me in it that this was his Intent For I did observe that one thing they insisted upon to shew it was by Surprize was that this was contrary to the Intentions of both the Duke of Albemarle and the constant Series of Purposes in the Family and they undertake to give Instances of it The Defendants Counsel say that his Intention was to give his Estate to the Earl of Bath who was his near Kinsman to whom he had very great Obligations that my Lord of Bath was concerned in that great Action of Restoring the Royal Family which was the Raising of his own that he was a constant Friend of Duke George and his and his Sons chief Counsellor and Adviser and that the Family were under great Obligations is and must be admitted both from what is in the Deed expressed and what is otherwise proved But the Plaintiffs say no they had no such Intention neither one or other of them and particularly Duke Christopher had none neither before the making of this Deed nor after Duke George he makes his Will in June 1665 wherein he gives all his real and personal Estate to his Son and nothing at all to my Lord of Bath I did look into the Will which is very short and there is nothing given to any Body but his Son That is the whole of the Will Then in the Year 1669 is the Settlement made by Duke George upon his Son's Marriage and there is nothing settled upon my Lord of Bath not so much as a remote Remainder In 73 Duke Christopher makes his Will and therein gives great Legacies to the Dutchess but none to the Earl of Bath These are Instances before this Will and Deed but the Answers given them are these which make me not satisfied with the Plaintiffs Objection or Proofs of his never Intending to give my Lord of Bath his Estate First as I said Duke George's Will is very short and takes notice of no Body but his Son and as he gives nothing in it to my Lord of Bath so neither doth he to any Body else and that very Devise is void because it was to the Son and Heir to whom it would without that have descended and it signifies very little to their purpose being in the same Year with King Charles's Sign-Manual at his Request to promise the Earl the Dukedom upon failure of Issue-Male As to the Marriage-Settlement in 1669 there is indeed nothing settled on the Earl of Bath so much as in remainder but in such Settlements Men usually do provide only for the Issue of that Marriage and so leave the Disposition of Remainders to Subsequent-Settlements As to the Will of Duke Christopher in 1673 at that time they say he was but a Minor of 20 Years of Age and it was only to dispose of his Personal Estate for as to his Lands if he had made any Devise of them it had been void and the personal Estate was at that time about 60000l But within a Year or two after that when he came of Age is the Will of 75 made and there is a mighty liberal Gift made to my Lord of Bath and pursuant to his Father's Desire and King Charles's Privy-Seal doth he make that Request for the Dukedom for my Lord of Bath And it must be observed upon all these things that as there is nothing given to my Lord of Bath in Duke George's Will and Settlement nor in Duke Christopher's Will in 1673 so nor is there any Lands in either of them nor in the Will of 1675 or Deed of 1681 given to Thomas Monk the Father of the now Plaintiffs so that that Objection is much stronger against them than against my Lord of Bath Now I do not find any Proof of a Provocation or Cause given by my Lord of Bath to make the Duke totally change from this Intention to give him the greatest part of his Estate and 〈…〉 put him quite out of his Favour nor doth it appear he was so here were several Letters read there have been Copies of them brought us and I have look'd upon them against these Letters it has been observed that there is no notice taken in any of them of this Deed but there is some of the Will of 1687 while the Duke was in Jamaica about the Death of Colonel Monk I confess I cannot say there is any one Letter that speaks of this Deed by the Name of a Deed but there is one or two that hath an Aspect upon it and very near respect to it and cannot refer to any thing else particularly that which was written relating to my Lord Lansdown when he was going to travel and another about his Marriage wherein he takes notice how much he was concerned in him even next to his Father himself as he very well knew and that he wrote so much about him for Reasons best known to the Earl himself this seems to point at some Conveyance and aims at this Deed to my thinking directly They have made another Objection That the Duke never intended to leave any part of his Estate to Sir Thomas Clarges because he was under the Duke's Displeasure upon account of something he took ill from him but that receives an easy Answer What is limited to him is but a Remainder and that of no great Estate neither Besides that the Evidence of the Duke's being displeased with Sir Thomas is but a hearing by a third Hand but I find no Displeasure proved at all that was conceived by the Duke against my Lord of Bath to the last Come we then to the time of making this Deed and let us see whether the Duke did really intend what the words of this Deed do import and that I think is made evident by Proofs that have not been answered or contradicted The Deed takes notice of the very great and many Acts of Friendship and Kindness received by him and his Family from my Lord of Bath and it is proved the Duke declared it ought never to be forgotten nor could he ever make him sufficient Amends It should seem he had procured his Father's Garter for him when he might have had it himself he thereupon tells Mr. Prideaux that he was setling or had setled his Estate upon my Lord of Bath which must be much about the same time that this Deed was made One of the
Witnesses to the Deed says at the sealing of it he wished he could have done more for him But to me one of the clearest Evidences of the Duke's Intention to do this for my Lord of Bath and that it was no Surprize upon him is the Presence of Sir William Jones at the Execution of this Deed for I do take it upon the Proofs it is most evident that he was then present and I will tell you what the Evidence of it is Mr. Vivian says he was often used as Counsel for the Duke of Albemarle and principally relied upon and this Vivian happens to be one of the surviving Witnesses and he positively says Sir William Jones was there and a Witness to the Deed so says Mr. Strode who knew him very well and the third says there was a great Lawyer there tho he doth not pretend to know him it is Clark Mr. Hebblethwaite says he believes the Name endorsed is Sir William's Hand-writing and no better Witness could there possibly be for that purpose than he nor could there be greater Evidence than those multitudes of Instruments that were produced in Court whereby to my Apprehension it did appear plainly that the Characters did very well agree Now if Sir William Jones was there at the sealing of this Deed I think I need say no more upon this Point He was a Gentleman very well known to be both of great Ability and Integrity and Reputation and he would never have given up all his Honour and Reputation and the Quiet of his own Conscience to make one in a Confederacy of circumventing this Noble Duke or defrauding any one of his Estate and therefore believing him first to be present which I really do I cannot but conclude that it was really and bona fide done without Fraud or Surprize Besides this Evidence there are several Discourses also that have been proved wherein the Duke hath declared both his Intention and that the thing was done which sheweth he was not surprised into it I name Mr. Crofts in particular who must be admitted to be a good Witness being one of the three Witnesses to the Will of 1687 and he says the Duke of Albemarle told him the Earl of Bath was to succeed to his Estate It is indeed objected upon this Head What needed then all this Privacy be used VVhy should the Duke conceal it from the Dutchess his Lady to whom he had been so kind in it why from the Duke of Newcastle and the other Trustees Persons of Quality and Honour They say it could not be for any Dissatisfaction the Duke had with his Dutchess for they always agreed very well together and they have read the Testimony of my Lord Marquess of Carmarthen who says that he never observed a Couple to live better together or any VVoman to carry it better towards a Husband than the Dutchess and they have produced you some Letters from the Duke to her which shew great Fondness and Affection to her Truly in the first place I do not know why any Reason should be expected to be given why he useth Privacy in any Action he doth sure he may or he may not at his Pleasure There may be private Circumstances that may induce him and that with very good reason to use more or less Privacy in the Affairs he transacts But besides this they bring you in Proofs that I cannot but mention that the Dutchess had conceived a Displeasure tho it be not known for what Reason against the Earl of Bath that the Duke was uneasy under her Importunities to do what he had no mind to and that was the cause of his drinking so hard to divert himself The Duke was apprehensive she would pursue her Displeasure against my Lord and he should have but an unquiet Life if she came to the knowledg of this Settlement at least till she had prevailed with him to alter it which he resolved not to do Now it may be I speak it with all due Respect to my Lord Carmarthen's Evidence that the publick Carriage might be plausible especially in the presence of one of his Quality and yet there might be some late Displeasure which might break out amongst themselves whenever my Lord of Bath came in Competition with those for whom my Lady Dutchess had more Affection and would make use of her Interest in the Duke about it and the Counsel for the Plaintiffs could very hardly maintain but that the Duke had once an intention that my Lord of Bath should have his Estate till say they he came to have the knowledg of one of his own Name whom he designed to prefer and provide for If so then I am sure the first time that any such change of Mind doth appear is by this VVill of 1687 for before that they do not pretend to any thing done for Colonel Monk and that will serve to answer that Objection that this Deed of 1681 was against the Duke's constant Intent before and at that time It is true he doth call Colonel Monk Cousin in his VVill of 1687 whether he was akin to him or no doth not appear in proof at all in the Case but on the contrary it is in proof that my Lord of Bath is really near akin to him and it was as much his Intent when he made this Deed to keep up his Title and Honour in my Lord of Bath's Family as can be imagined or conceived As to the VVill of 1687 that doth declare his last Intention and that they say is most probable that my Lord of Bath should not have the Estate but Colonel Monk should for it was a VVill made with a great Deliberation being five or six Months preparing great Advice about the drawing of it taken particular Instructions by himself given several Copies made and left with several People On the other side they observe the distance of Time six Months between the Preparation and Execution which is not an Argument that he was very forward to do it but rather an Argument that he was very unwilling to do it and the very time of executing it was when he was very uneasy about his being forced to execute the Conveyances of Dalby and Bronghton to my Lord Jefferies His Mind was then disturbed but if he had had a real Intention and Purpose to revoke the Deed he had an opportunity to get this Revocation done in their Presence and afterwards he might easily have got a third Peer The great Objection is VVhat should the Duke take all this Pains for and this Care and Thought about the Preparations for this Will so carefully execute it deliver the several Parts to several Persons and all for nothing I do admit it is a great Objection and I think there is but one Answer to it but that is a pretty plain and strong one VVhy was all that Care and Thought used about the Will of 1675 and the Deed of 1681 did he intend nothing by it then And if he
came to for that purpose but upon quite another Affair He would have put it off to another time he would have avoided it it was done in a hurry and before Witnesses prepared for that very occasion and brought from Newcastle-House and therefore it is not so much his Intent and firm last Purpose On the other hand they oppose this Argument thus That the Duke did at the same time write to my Lord of Bath that his Purposes toward him were unalterable and what his meaning in that should be unless his purpose not to revoke this Deed and Settlement truly I cannot tell he left the Keys of all his Evidences with him when he went away Crofts was ordered to deliver them to the Earl as chiefly concerned if he should miscarry he trusts him with the chief Management of his Affairs directs him to be advised with upon all occasions as he used to do himself before and so is the same still towards him in all respects as ever he was I do not find in any of the Plaintiffs Proofs that there is any Cause shown for altering this Mind of my Lord Duke's if he had not himself declared it so to be unalterable There was no Provocation on the one side or increase of Merit on the other side why he should change from his Kindness so grounded towards the nearest Relation of his Blood to entertain a Stranger to whom he had never a thought of giving any thing before It is hard to think that my Lord of Bath Sir Walter Clarges Mr. Greenville and even the Dutchess her self should continue the same and the Duke should not I find no Evidence of it nor can tell any Reason for it and without Reason I cannot be induced to give my Opinion against a Deed really deliberately intentionably made upon only the single Act of this Will testifying so great and total a Change surely if any such thing had been meant it was very strange he should take no notice of this solemn Will and Deed made before and ask Advice whether it were not sit to revoke or look into it To my thinking the Duke hath in effect declared that this Will in 1687 should be taken for a Will as obtain'd by Surprize for he binds himself by this Proviso only to revoke in such and such away to prevent Surprize We then find there a Will that wants these Circumstances required in the Proviso and then we must take it to be what he intended to fence himself against and nothing doth reconcile the Duke to himself in this matter but that he was apprehensive he should be drawn to do something that was against his Mind aad therefore he doth fence himself with this Proviso against all such Attempts The Will and the Deed do both provide largely for the Dutchess but whether the Will doth it so liberally as the Deed doth I cannot tell they did talk as if there was 3 or 4000 l. Difference I cannot tell what as to the Value it may be but I am sure in this Will there is no Provision made for my Lord of Bath at all and there is none for Mr. Monk in the Deed or any other thing before this last Will. I must crave leave to differ from the Counsel for the Plaintiff in what they take to be a Ground for a Revocation in Equity that the Duke had forgotten this Deed I am not satisfied that upon that Ground only this Court should relieve against it And my Reason is this Suppose his Intention to revoke do appear it ought to be in such a manner as the Law requires and pursuing such Circumstances as he has put upon himself because here is a voluntary Conveyance on both sides and where there are two voluntary Conveyances he that hath the Advantage at Law ought to keep it And so the Resolution was in Fry and Porter's Case and I take it to be the standing Rule in Equity For what shall turn the Scale shall the Defendant urge any thing of Merit that cannot be in this Case but in the Eye of Law they are both equal under the Consideration of the Court and in pari gradu And indeed if it should be otherwise what would become of Circumstances in Powers of Revocation by which Men shackle and circumscribe themselves with very good Reason at their Creation if the last Will alone shall set aside all It is objected that it was always the Duke's solemn Intent to prevent the dishonourable Descent of his Estate upon his right Heir at Law who sprung from a Regicide and to prevent a Surprize by a sudden surreptitious Will and both these Ends are attained by the solemn deliberate Preparation for his Will and the Disposition of the Estate to Mr. Monk and it is substantially and therefore equitably performed though not strictly legally I think there was a further End in this Deed and that was to settle his Estate upon a Person of Honour nearly related to him in Blood And this Court cannot take it from him without reflecting on this Settlement and upon him that made it and upon him for whom it was made No nor can it be done as I take it without performing the Circumstances required and prescribed for that purpose in the Proviso without which I think this Court ought not to determine that the Intent is performed or that his Mind is changed And if we shall depart from these Limits I cannot tell where we shall stop I can set this as a good Limit here is a voluntary Conveyance on the one side and a voluntary Conveyance on theother side the latter Conveyance must make it out that the Circumstances requisite are performed and if not I think the Law must decide it and there hath been nothing made out by which as I conceive there can be any Advance given in a Court of Equity to determine it otherwise than the Law will I shall speak but very little to the other Head It is objected and ask'd whether there should be no Relief in any Case where there is a Defect in the Execution of the Power I think that would be very hard on the other side and it would be convenient Relief should be given in these Cases First for a Purchaser I speak not now of a Purchaser for a valuable Consideration without notice for that is helped already by the Statute and so where there is any Fraud or the Party is guilty of any Deceit or Falshood whereby a Man is prevented from executing his Power though he never so much intended or desired it But there is no such thing here and the Plaintiffs Counsel were wiser Men than downright to call this Fraud only they stile it Surprized Circumvention I think also it may be fit for this Court to give Relief where there is a foreign Consideration as Consideration for Paiment of Debts or providing for younger Children As where a Man makes a Conveyance or makes a Will and chargeth his Lands over which
so you cannot imagine that the Duke was at all surprized therein but that when it was executed it was according to that design and purpose Next Sir Thomas Stringer who was the Duke's Counsel to Peruse and amend the Draught as appears by his own Hand sworn by his Son and his Man To imagine then that a Man should be surprized into the making of a Deed when his own constant Counsel doth Peruse and Amend the Draught and the Counsel he used particularly to advise with is by at the Execution and a Witness to it is to say a Man was surprized when he had the Advice of Counsel about it and they were at his Elbow at the Executing of it Now I must confess I am to seek and do not well know what is a Fraud in Equity that shall avoid a Deed which is a good Deed at Law The Case of Bodmin and Wynne and Roberts mentioned by my Lord Chief Justice and my Bother Powell that spake the last day this Cause came on is I think a Case of great Authority in a Court of Equity because it had a great Transaction both in this Court and in the House of Lords before it came to a Resolution and Result I shall put the Case in short as it was here in Court Mr. Roberts Son to the late Earl of Radnor married the Daughter of Mr. Bodmin Bodmin had made a Will and given his Lands to the Children of his Daughter in Tail and after this he makes another Will whereby he gave one part of that Estate to Mr. Wynne and another part to a remote Kinsman It did most plainly appear in the Depositions of this Case that this Will was obtained by great Fraud and Circumvention that is Wynne got into his Acquaintance by pretences of some little Offices of Friendship and Kindness he got him away from his Friends and Relations and during his Sickness he did by false Stories withdraw his Affection from his Daughter kept him in secret Places that no Friend might come at him and while he was so secreted and wrought upon was this last Will made whereby he gave his Estate away from his Child to a Stranger All these pieces of Practice were Apparent before the Court at the Hearing of this Cause which was heard by my Lord Clarendon Assisted by who all Unanimously Declared that this was a VVill obtained by Fraud and by Practice and that there was great Reason if they could to relieve against it But they searched Precedents and could find none that would come up to the Case Thereupon for difficulty there was Advice taken about it in the House of Lords and there upon Consideration was an Order made by way of Advice to the Lord Chancellor that he should proceed to do Justice to either Party though there were no Precedent found to govern the Judgment Afterwards this Cause came to be heard again 12 June 1666 when my Lord Chancellor being assisted by my Lord Chief Justice Bridgman my Lord Chief Baron Hales and Mr. Justice Raynsford did declare That there could be no Relief though it was said before it was apparently a VVill obtained by Fraud and this to the Prejudice of the Heir at Law who had never Offended or given him any Cause to Disinherit her So the VVill was dismissed but the Parties complaining in Parliament were Relieved by the Legislative Power by an Act of Parliament Now besides that there was Evidence of ill practice in that Case but in this I say I find none this is so great an Authority and does shew the wariness of a Court of Equity that I think none can be greater Equity would not relieve them but they were put to seek their Relief by a Law made on purpose But I will suppose now in this Case that when my Lord of Bath did understand the Kindness of Duke Christopher and knew of the Will of 75. and knowing the Incoastancy of the Duke's Temper and other Circumstances in the Family and the Revocableness of a Will should have applied himself to the Duke and told him ' It is true you have been so kind as by your Will to bequeath me a great part of your Estate but you may be prevailed with on a sudden or by some Artifice or other to alter this Will of yours and you may be surpriz'd into the doing of it pray will you make a more solemn Settlement to confirm this Kindness by a Deed And had prevailed to get him to do it Suppose I say he had done so tho I find no Evidence in this Case of any such thing suppose he had been employed in the whole transaction of such a Deed is this unlawful or is it any harm No it is very innocent he might lawfully do it and if he had opportunity he might prudently do it But I say I find not so much as that in this Case but this Deed was fairly obtained from the Duke whether it was by the advice desire or interposition of my Lord of Bath doth not appear or whether it were the Duke 's own voluntary Act though I think it is not material whether it was the one or the other But it hath been said That when Duke Christopher did design to alter his Will and for that purpose sent to my Lord of Bath to bring the Will of 75. which he had in his Custody my Lord of Bath should have told him of this Deed too And therefore the concealing of the Deed of 81. from D. Christopher is a kind of fraud and not making a discovery of it then he shall not now take advantage of this Slip and have the Estate by this Deed because if the Duke had considered the Proviso in the Deed he would have taken eftectual care to have had a good Revocation in all the Circumstances And that he did not so revoke it must be imputed to the concealment of this Deed from the Duke by the E. of Bath So was the Case of Mr. Clare at the Suit of the E. of Bedford which was opened the last Term. A Man that stands by and sees a Cheat which might have been prevented by his discovery shall not take advantage of his own wrong and profit by such concealment But doth it appear in this Case that my Lord of Bath knew to what purpose the Duke sent for his Will or how or in what manner he would alter the Settlement of his Estate Why must he be bound to take more notice of this Deed to the Duke than the Duke himself It was the Duke's own Act and not my Lord of Bath's and why should he give him notice of his own Act The Rule of Law when one is obliged to give notice to another is this When the thing lieth more in the Knowledg of the one than the other and he cannot come to the Knowledg but by his means But when one Man hath reason to know and doth as much as the other he is not bound to give notice
to that other Besides it doth not appear as I remember for it is some time since this Cause was heard that my Lord of Bath did know to what purpose the Duke did call for his Will and that the Deed and Will were both in the custody of the Duke for though at the time of the execution of the Deed it was delivered to my Lord of Bath yet that was only for the due execution as a Deed for my Lord in his Answer saith He knoweth not where it was afterwards till delivered to him by the Duke with the Will under one Cover some short time before he went abroad And so there is great Reason to induce the Belief that it was in the Duke 's own custody Then as to the Objection of Secrecy it is kept secret all-along and no body can give any account of this Deed. Take it for granted it was so Shall a Settlement in a Family where the nature of the thing requires Secrecy because it is kept secret be set aside in Equity It ought to be kept secret and that is no Objection at all Persons do not usually intend that all the World should know how their Estates are setled But say you At least here is a general Presumption take all together upon the Circumstances of the whole Case that there was some kind of management in concealing of this Deed. Now in a Court of Equity shall Presumption be sufficient to found a Decree upon If that shall avail in a Court of Equity it is an easie matter according to the Judges Faith to presume a Man out of his Estate There are Presumptions of several sorts some are violent and some probable A violent Presumption That such a Man hath done such a Fact must be when a Fact is done and no other can be thought of to have done it As if a Man be killed in a Room and another Man comes out of the Room with a Sword bloody in his Hand and no body else was in the Room Here is a plain Fact done and tho no body can swear they saw this Man do the Fact that he killed him yet from this Evidence there is a very strong Proof But a probable Presumption alone is no Proof to rely upon where indeed there is some Proof of Witnesses positive and the Presumption is probable that is added thereto it may be a good fortifying Evidence but it signifies very little of itself for a Foundation So that I think here is no Proof or Evidence That my Lord of Bath did surprize the Duke or that the Duke was surprized in this matter or that there was any indirect means used to conceal it from the Duke And so I have done with the Second Head that I at first proposed Therefore Thirdly I come to consider the Persons that are concerned in this Cause that is those that Claim by the Deed of 81. and those that Claim by the Will of 87. Those that Claim by the Deed of 81. are Relations of Duke Christopher without all question My Lord of Bath that is entituled to the greatest part of this Estate is a very near Relation and a Person that had done many Kindnesses for the Family had been constantly assistant to the Duke in his business And the others are near Relations too Then for those that Claim by the Will of 87. Mr. Monk that claims the main of the Estate is indeed in the Will called Cousin but it is plain if at all he is not so nearly related So that when in respect of the Persons that claim by contrary voluntary Settlements there is even an equality of Relation and no difference of Consideration much more when there is an inequality he that hath the best Title at Law must carry the Estate For what is it that makes the Difference but the difference of the Consideration As in the Case of a Deed in consideration of Blood and an After-deed to a Purchaser for a valuable Consideration the Last shall take place as the Best Consideration But for revoking or voluntary Settlement in favour of a subsequent one where there is no difference between the Parties as to the Consideration I think hath no ground in Reason There is as much Equity for the one as the other It is perfectly at large and I take it to be a constant Rule that where one Party hath more Equity than the other the Law must take place and that in this Case being manifestly for my Lord of Bath by this Verdict Equity ought not to take it from him This Principal was the Foundation of the Decree in that Case of Smith and Ashton that has been likewise mentioned and urged before There was a Power under Hand and Seal to be attested by three Witnesses and to charge with Portions for younger Children so it is a limited Power Then he makes a Revocation for Advantage of younger Children but not exactly pursuant to the Circumstances of the Power This was held good in Equity and all the reason in the world it should because a Man is obliged to provide for his younger Children and it is against all Justice and Reason to make such a Settlement upon the Eldest Son as to send all the other Children a begging being under the same natural Obligation to provide for the one as the other Therefore because of that Natural Obligation Equity hath been indulgent to support such Provisions because the first Settlement that disabled him from it was wrongful and injurious and contrary to all Equity and then in such Case Equity is very indulgent But I would put this Case A Man settles all his Estate upon his Younger Son for Life with a Power to revoke by Deed sealed in the presence of three Witnesses without more ado he makes his Will and disposeth of his Estate to his Eldest Son wholly and that Will is attested as put it before the Statute by two Witnesses Is this a good Revocation in Equity I say no For the one is as nearly Related to the Father as the other the Considerations are equal the one is as much a Son as the other and therefore there is no great difference between them and the Younger Son who hath the Estate by Law shall enjoy it tho afterwards it return back to him that was the Eldest The Fourth and Last Point is this Whether in respect of Duke Christopher and those Circumstances that attended him there be any Reason to relieve against this Deed in Equity And here First It is said If a Man makes a Feofment with a Power of Revocation under such Circumstances and doth make a Revocation where all the Circumstances are not observed he is such an Owner still of the Estate as that Equity shall support the disposition I say no For that is to set up Equity in direct Opposition to the Law For when a Man hath restrained himself by a particular Power and hath no Legal Right to dispose of this Estate but by exactly pursuing
to revoke and his intention is known but he is prevented by a particular Accident and surprized when his design was so to do but he could not perform that design as by reason of Sickness or that it was to be done in a place whither he could not go If any Accident obstruct that Intention it shall be lookt upon as good and shall prevail But now in this Case of the Duke of Albemarle it doth not appear that he had any such intention of executing his Power It is true he made his Will which is a quite contrary disposition of his Estate That is an Evidence of his intention to make a new Will but not to revoke this Deed He was no way hindred by any accident or irremovable Impediment from executing the Power according to the Circumstances He was in the place where best of all throughout England he might have had three Peers to be Witnesses of it The Will was executed in London at Sir Robert Clayton's House and there were then two Peers in the House Therefore since he had an Opportunity to have done it well and would not do it this can never be construed a good Revocation in a Court of Equity And I think truly that any such Construction would induce many Absurdities For First It is to set up a power in a Court of Equity in direct opposition to the Courts of Law and so let a Man loose in Equity for no other reason but because he hath restrained himself at Law by a Law of his own making Secondly It is as much as to say That because a Man my dispose of his Estate one way by Law therefore in a Court of Equity he shall dispose of his Estate any way That is a very strange but a true consequence of this Doctrine because a Man settles his Estate such a way with such a Power to alter it in such circumstances therefore he shall do it any way At this rate Tenant in Taile may dispose of his Estate without a Fine in Equity because he might have done it at Law with a Fine for the same Equity there is in both Cases So a Copy-holder of Inheritance may in Equity dispose of his Estate without a Surrender because he might do it at Law by a Surrender Thirdly It were to enable a Man to give away more then he hath in him for he has no more in him than what is according to the Power he reserved to himself And Fourthly 't is to frustrate the intent and design of all Settlements whatsoever so that I think there is no reason at all for this Court to let a man loose that has thus restrained himself unless there be some special reason in the particular Case for the sake of which a Man ought to have his Case vary from the ordinary Rules Then let us consider next the Circumstances that the Duke was under at the time of making this Will you that are for the Plaintiff say that he had forgotten this Deed and therefore it being an old and forgotten Deed it shall not have any regard in a Court of Equity it not being taken any notice of by the Party himself First I pray consider whether the Evidence doth not prove the quite contrary it was a Settlement made very solemnly it is very well attested by six Witnesses Persons of Consideration it was done with deliberation and done but in 81. the Will is in 87. It is not to be presumed that the Duke did or could forget a Setlement so solemnly and deliberately executed I say it is hard to presume it but rather the contrary that he did not forget it Besides tho' he had forgot it Sir Thomas Stringer who was so instrumental about this Will had not forgot it for he made an Abstract of it about that time with the very date in it And I take it the memory of the Counsel in such a Case is the memory of the Client Suppose a Man be to make a purchase and he carrieth the Deeds of the Title to Counsel and he espieth a Trust in the Deed and acquaints his Client and yet he will purchase shall Equity relieve It may be the Counsel overseeth this Trust and the Purchaser is called to account about it says he I had no notice I knew nothing of any such Trust I am a Purchaser for a valuable Consideration and it ought not to affect me But then they come and prove that the Deeds of the Title were carried to Counsel they saw this Trust or had an opportunity to see it Then I take it notice to the Counsel is notice to the Client and the Man that paid the money must lose the Estate So here Sir Thomas Stringer's memory is the Duke's memory But pray how comes it to pass that forgetting of a Deed is a ground to revoke it in Equity must the goodness and validity of a Deed depend upon the memory of him that made it Memory is slippery but a Deed is permanent and made to abide for ever Because Men are apt to forget what they have done therefore shall their Deeds have no more effect in a Court of Equity than if they had never been done at all This I confess is very new and strange Doctrine to me when a thing once comes to be put into Writing we say it is never forgotten Litera Scripta manet But then truly they say it is inconsistent with the Honour of the Duke of Albemarle that he should make this stir and do about his Will and pretend such kindness to Mr. Monk and desire a Title of Honour for him and yet not intend to revoke this Settlement that stood in the way The others they say how is it consistent with the Duke's Honour to intend to revoke it when there was such a friendship between the Duke and the Earl so many Services and Obligations performed by the Earl such a Trust and Confidence reposed in him even to the last as it is plain there was How comes this to pass but so it is they are Acts very much inconsistent I confess But for persons Honours in judging of Causes we have nothing at all to do with them For my part I see no reason in the World that the Duke had to alter his mind as to my Lord of Bath there is no appearance of any unkindness or displeasure conceived by the Duke against the Earl but an intire Trust and Confidence to the very last as is evident by the Order of the Keys of the Evidence-Room to be delivered to him when he went away and to consult with him upon all occasions But withal I do not know what the meaning of this should be if he really intended any effect as to the Will of 87 which without all question is well proved and were it not for this Deed would be a good disposition of the Estate Yet tho' it doth contradict the Deed of 81 I cannot but take that to be a very good Deed and not
to be set aside by this Will I have nothing further to consider in this Case nor are we to make Presumptions and then to make Inferences from thence We are to judge upon the fact as it appears in the Depositions which are plain and clear and upon these we are to determine our Opinions and nothing else that is dark and that we cannot come at further than by conjecture There have been said in the Cause which I omit on purpose because I would mention only those that are most material Upon the whole matter I am of Opinion there ought to be no Relief in this Case against my Lord of Bath and those that Claim by the Deed of 81. LORD KEEPER I Shall first take Notice how these Causes stand in Court and who are the Parties in Judgment before the Court. Here are Three Bills One in which the Dutchess of Albemarle was Plaintiff and since the Inter-Marriage my Lord of Mountague is also Plaintiff against my Lord of Bath and others Defendants and this Bill sets out the law Duke of Albemarle's Marriage-Settlement and his Will of 87 with the Solemnity both of preparing and executing it and doth complain that the Earl of Bath sets up another Will and a Deed in 75 and 81 whereby he seeks to frustrate the Disposition of the Duke's Estate by the Will of 87. And the Bill doth alledge That if any such Deed was ever executed by the Duke which they have reason to doubt and do not admit they believe the same was imposed upon the Duke by surprize and not fairly obtained and by fraud were concealed from the Duke and ought to be set aside in Equity tho' the power of Revocation in the said Deed were not strictly pursued because his intention appears to revoke it and dispose of the Estate otherwise by making the Will in 87. And if it should not be set aside then the Dutchess ought to have the Lands limited to her by that Deed and the Rent-Charge of 2000 l. a year over and besides the Joynture settled upon the Marriage and confirmed by the Will of 75. And the Will of 87 ought to stand good as to the Personal Estate and Legacies therein and so prayeth to be protected in the Enjoyment of the Personal Estate and Specifick Legacies given to the Dutchess discharged of the Duke's Debts There is another Bill brought by Christopher and Henry Monk which complains of my Lord of Bath and the others setting up this Will of 75 and Deed of 81 and I think in the same Words or to be sure to the same effect with the other Bill and prays that both Will and Deed may be set aside and the Plaintiffs may enjoy the Benefit and Estate given them by the Will of 87. Then there is a Third Bill of my Lord of Bath Mr. Greenville and Sir Walter Clarges in which they set out the Will of 75 and the Deed of 81 and the continuance and constancy of the Duke's Friendship and Trust to the Time of his Death and complain that the Dutchess and other Defendants set up the Will in 1687. and do pretend that amounts in Equity to a Revocation of the Deed of 81 and his Bill prayeth that the Personal Estate may be applyed to pay the Duke's Debts in discharge of the Real Estate which they pray may be confirmed to the Plaintiffs in that Suit and a discovery of the Writings about the Real Estate and that they may be brought into Court and delivered up to the use of the Plaintiffs These Causes were first heard before the Lords Commissioners so long ago as the 8th of July 1691. then was there a Decree made That the Personal Estate should be accounted for and applied for the payment of the Debts but before the Court would deliver any final Judgment as to the Real Estate they ordered a Tryal at Law to be had in an Ejectment wherein the Dutchess and Mr. Christopher Monk were to be Lessors of the Plaintiffs and the Earl of Bath Mr. Greenvill and Sir Walter Clarges to be Defendants to try the Title to the Real Estate And the Plaintiffs were only to insist upon the Will of 87. and the Deed of 81. so as that the Defendants Right upon the said Will and Deed might be fairly tryed And all Exhibits were to be left with the Master three weeks before tile Tryal for either side to inspect take Abstracts and Copies of as they should think fit According to this Order in the Michaelmas-Term after there was a Tryal at the King's-Bench-Bar and upon that Tryal a Verdict past for the Defendants in the Ejectment the Earl of Bath c. upon the Will of 75. and Deed of 81. After the Tryal these Causes came to be heard again before the Lords Commissioners about a year and a half since at that time there was no complaint made of the Verdict nor any Motion for a new Tryal But after the Councel had been heard several days the Court took time to consider of their Judgment and before Judgment one of these Causes abated by the Marriage of my Lord Mountague and the Dutchess and by that and other Accidents the Cause hath been delayed till the late Hearing before the Court assisted by my Lords the Judges who have delivered their Opinions And now the Causes stand for the Opinion of the Court upon what appears in the Pleadings and Proofs and what has been so largely insisted upon on either side Upon which the Verdict being at Law for the Defendants I must take it as my Lords the Judges have already declared not only that these Deeds of Lease and Release of the 15th and 16th of July 1681. were duly sealed and executed by the late Duke of Albemarle but also that they stand still in force and unrevoked at Law for if they had not been so the Verdict could not have been as it was for the Defendant Therefore as that must be taken for granted that these are good Deeds in Law the only Matter at present for the consideration of the Court is Whether upon the debate of this Cause there be sufficient Ground in Equity for this Court to interpose in the Case so as to set aside these Deeds as not good in Equity or revoked by the Will of 87. or no And I shall as to the Matter of the Question conclude my Opinion the same way with my Lords the Judges that have delivered theirs before And with respect to this Matter I shall here consider who the Parties are in Judgment before the Court and what hath been alledged as Reasons and Grounds to induce the Court to set aside this Deed in Equity Here is no Purchaser in the case no Creditor no Child unprovided for but all the Parties claim by voluntary conveyances on the one side and the other so that at least they stand equal or if there be any circumstances as to the Persons that have any weight it is on the part of my Lord
of any previous Direction for drawing of this Deed there is no Proof of the Draught or Deed 's being read to the Duke no Counterpart was executed The Trustees were not acquainted with it there was an Estate limited to Sir Thomas Clarges when there were great differences between the Duke and him it is not subscribed by the Duke's Counsel as all Deeds executed by him used to be that it was ingrossed according to the Draught and that in a very material place for if it had been according to the Draught the Duke had been Master of the Estate by a general Trust and if it were not perused by Sir William Jones or he was not a Witness to it then so far as Sir William Jones was surprized in the matter the Duke was so too Now as to the want of Proof of any previous Directions for this Deed that is not strange after such a length of time Sir Thomas Stringer who drew it dead four of the Witnesses to the Execution of it are dead too But the presumption is very strong when the Draught is of Sir Thomas Stringer's Son's Hand-writing and corrected and interlined by his own hand in several places that he had Orders and Directions from the Duke to prepare such a Deed. The Reading or not Reading the Deed to the Duke doth not appear it might be read to him before and it was not necessary it should be read to him at the time of the Executing if it were then the Will of 87 lies open to the same Objection for that was not read to the Duke when he sealed it As to that Objection that there was no Counterpart nor the Trustees acquainted with it that can be nothing of an Objection for the Deed remained in the Duke's hands till a little time before his going to Jamaica as appears by my Lord of Bath's Answer which hath not been falsified as I know of in any point nor was there any Occasion to give Notice to the Trustees becauâ—e thâ—re was no manner of Estate or Trust lodged in them But my Lord of Bath was the only Person that had any Trust in him by the Deed therefore there was no Reason that it should be known to any one but him And the Nature of the thing and all the Proofs shew that it was intended to be concealed Then as to the Story of Sir Tho. Clarges and the Differences between the Duke and him there is no Proof of it It is at most but an Hear-say testified by one Witness That it was not Subscribed by the Duke's Counsel as all his Deeds usually were it seems to me to be of no very great Weight when the Draught appears under Sir Thomas Stringer's Son's Hand interlined and corrected by himself and Sir William Jones a Witness to the Execution and present when it was compleated Sure that can never signifie any thing As to the other Observation that was made that the Deed was not Ingrost according to the Draught and the Variation is in so Material a part as to make the Duke Master or not Master of the Estate it should be considered First That upon view of the Draught it is plain Words have been cut off and there is a positive Witness who swears That he twice Ingrost the Deed by the Draught It is possible that a Man may twice leave out the same Words in Ingrossing a Deed by a Draught But that he should twice add the same Words that were not in the Draught is very strange and not easily to be believed Then say they This is not the Draught that was first perased and approved of by Sir William Jones That is certainly such an Objection as never was made before and indeed it is likely there never was Occasion to make such an Objection till the last Hearing for it may be it was not cut till then But pray let it be considered for whose Interest it was to have this Draught cut or altered from the Ingrossment It is impossible it should be cut off for the Interest of my Lord of Bath by the Objection that ariseth from it for let any Words in Nature have been there they could not have been of such Disadvantage as they would have it to be However be the alteration of the Draught what it will if it were not done by the Defendants nor was for their Interest to be done nor done before the Execution of the Deed it all signifieth nothing But I think it is fit and proper here to say something to that Notion that where the Counsel is surprized that is a surprize upon the Client I take that to be a matter of a very great Consequence and I fear it would shake most of the Settlements of Estates in England and for that I would mention the Case of Sir James Herbert and the late Lord of Pembroke There was a Bill brought in this Court to set aside the Will of the Elder Brother who was the late Earl of Pembroke but two Sir James was Heir at Law and the other was but half Brother That Earl had taken a Displeasure at his Brother and sent Directions to Mr. Swanton to draw a Will and Settlement of his Estate and amongst other things orders to be sure that the Brother should have no power over the Estate to dispose of it because that in his Grandfather's Will there was such a Settlement as he liked of he sends him that Swanton makes a Will and limits an Estate to Sir Philip Herbert the Brother for life and the remainder to the Heirs of his Body This Will is brought by the Counsel to the Earl and read and Executed and held to be Good yet this was a Notorious Surprize upon the Counsel for nothing is plainer than that the Counsel had made a Mistake or knew not the Law He did not at best consider that upon such a Limitation the Law uses the whole Estate Tale in him and he may dispose of it It is plain he had not pursued the Will of the Grandfather but yet when this Cause came to be heard before my Lord North when the Will appeared to have been truly executed the Court declared it was a Misfortune that they did not go to a better Counsel And it was sent to Law to try whether it was the Will of the Earl of Pembroke or no and it being found to be the Earl's Will the Bill was dismist with Costs Thus I have taken Notice of what has been offered to prove the Surprize I would shortly mention on the other side what hath been insisted upon to shew that there was nothing like Surprize but all was done upon a very good ground and pursuant to a setled full purpose continued for so long a tract of time to the Duke's death First Say they It doth appear there were a very near Relation between my Lord Duke and my Lord of Bath and that Duke George owned and owed his first setting out in the world to the Ancestors