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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A60878	The Arguments of the Lord-keeper, the two Lords Chief Justices, and Mr. Baron Powell, when they gave judgement for the Earl of Bath	Somers, John Somers, Baron, 1651-1716.; Treby, George, Sir, 1644?-1700.; Holt, John, Sir, 1642-1710.; Powell, John, Sir, 1645-1713.	1693 (1693)	Wing S4637; Wing A3646_CANCELLED; ESTC R17706	80,573	63

THE ARGUMENTS OF THE LORD-KEEPER THE TWO Lords Chief Justices AND Mr. Baron Powell When They Gave JUDGMENT FOR THE Earl of BATH Die Martis 12 Decemb. 1693. In the Middle-Temple Hall Com. Bathon adv Com. Mountague at al. THIS Day being appointed by the Lord Keeper to hear the Opinions of the two Chief Justices and Mr. Baron Powell who assisted at the hearing of this Cause and to deliver his Lordship 's own Judgment therein Mr. Attorney General moved on the Behalf of the Earl of Mountague c. for the Judgment of the Court and Mr. Baron Powell delivered his Opinion first Mr. Baron Powell The Question in this Case is Whether there be any Ground in Equity to set aside a Deed of Release made in July 1681. for the Settlement of the late Duke of Albemarle's Estate by which my Lord of Bath claims The Validity of this Deed hath been tried at Law upon an Ejectment in the Court of Kings-Bench by Direction of this Court where the Title has been found for the Earl of Bath by the Strength of this Deed so that it must be agreed my Lord of Bath hath a good Title at Law because the Verdict hath found it so and all Parties concerned have hitherto acquiesced under this Verdict This Case comes now back upon the Equity reserved and it is only now to be considered what Matters of Equity have been offered to avoid this Title thus found at Law And those I think may be reduced to five Heads First That this Deed was obtained by Surprize and Circumvention Secondly That it was a concealed and a forgotten Deed. Thirdly That this is a Deed attendant upon a Will and so revocable in its own Nature although it had no Power of Revocation in it Fourthly That there is an implied Trust in this Deed that the Duke might have charged the Estate to the full Value and consequently might well dispose of it in Equity And Fifthly That the great Solemnity and Deliberation used about making the last Will and the publishing that Will do amount to a Revocation in Equity notwithstanding that the Circumstances of the Power are not strictly pursued I am of Opinion in this Case that this Deed having been affirmed by a Verdict upon a Solemn Trial at the Bar at Law none of these Matters are sufficient for to ground a Decree in a Court of Equity to set aside this Deed and I shall give you my Reasons for this Opinion in the same Order I mentioned those Heads in with particular Answers to the particular Objections under each Head 1. It is said this is a Deed that was obtained by Surprize and Circumvention Now I perceive this word Surprize is of a very large and general Extent They say if the Deed be not read to or by the Party that is a Surprize Nay the Mistake of a Counsel that draws the Deed either in Misrecitals or other things that is a Surprize of the Counsel and the Surprize of the Counsel must be interpreted the Surprize of the Client These things have been urged in this Case and I thought fit to mention them for the introducing my Reason against this Head of Argument and it is this That if these things be sufficient to let in a Court of Equity to set aside Deeds found by Verdict to be good in Law then no Man's Property can be safe I hardly know any Surprize that should be sufficient to set aside a Deed after a Verdict unless it be mixed with Fraud and that expresly proved and I know not of any such proved in this Case It is true Duke George by his Will and the Settlement made upon his Son at his Marriage takes no notice of or makes any Provision for the Earl of Bath but that I take it is not to be regarded as any way material at all because he takes no notice in either of them of any Body else but him that was his Heir But I must observe here by the way that there was not only a very near Relation between Duke George and the Earl of Bath but a very intimate Friendship cultivated by mutual Offices of Kindness between them to his Death And I must mention one Particular because to me it seems a clear Answer to this Objection that is His making no Provision for the Earl in the Will or Settlement might be the Occasion why Duke George did make such ●n earnest Application to King Charles the Second that upon Failure of his Issue Male his Majesty would please to bestow the Dukedom upon the Earl and annex Theobalds to it which would then revert to the Crown And that King did often promise he would and afterwards did it solemnly under the Sign Manual But then it is said that after this Duke Christopher made his Will and therein there is no notice taken of any such Disposition of his Estate to the Earl of Bath but that is not I think to be regarded neither because that was a Will only of his Personal Estate and made when he was under Age and could not dispose of his Real Estate Then come we to the Year 1675. when the Will was made to which this Deed has some Relation and by that Will Duke Christopher doth settle a great Part of his Estate upon Failure of Issue of his own Body upon my Lord of Bath There is no Pretence of any Surprize upon the Duke when he made this Will and it is plain then he had an Intention that my Lord of Bath should have a great Share in his Estate if he died without Issue Now then it is to be considered what there is of Proof in this Case of any thing that might be a Ground to conceive why he should alter this Intention between the Years of 1675 and 1681 when this Deed was made There is no Proof of any Misunderstanding between the Duke and the Earl in that Interval but on the contrary that there was a continual Friendship and Intercourse of Kindness between them all the while as doth appear by a continual Succession of Letters and other Correspondences passing between them in those Years one of which I cannot chuse but take notice of because of the Date of it to wit in June 1681. upon my Lord Lansdown's Intention to travel wherein the Duke takes notice of the Interest he had in my Lord of Bath's Family and particularly in his eldest Son as the greatest next to that of the Earl himself And I say I mention this Letter because of the Date that it is so near the very Date of the Deed that it is possible the Date was then made because it was within a Month after that Letter sealed and executed therefore it might well be referr'd to in it Next this appears to be a Deed drawn by the Duke of Albemarle's own Counsel Sir Thomas Stringer for it is proved the Paper-Draught is all of his Son's Hand-writing except the first and last Sheet and all of it interlined

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 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

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