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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

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

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

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 becau●e th●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

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