or their Testator could not come sooner than when the Title was cleared Mean profits Decreed tho' a long time since and the Objection raised from the shortness of the former decree is not material to prejudice the Plaintiffs demand for that there could not then be any decree for profits the said Sir James pretending Title as Tenant in Tail Account for the mean profits from the time the right accrewed and that Sir Thomas was but Tenant for life so now the Right being cleared the Plaintiff ought to have an account of the mean profits from the time the Right accrewed and decreed accordingly The Defendant Appealing from the said Decree made by the Lord Chancellor Finch to the Lord Keeper North the Case was heard ab integro and the Lord Keeper on hearing the decree in 1650. and the decree of the Lord Finch read declared that there was nothing in the case but the loss of time and though the Decree in 1650. The mean profits tho' omitted in a former decree decreed now was silent as to the mean profits yet the same ought to be no Objection to the Right and though it was omitted by the Decree in 1650. yet it ought in Justice to have been decreed for the mean profits as well as for the right of the Title it being an accessary to the decree and it ought to be judged nunc pro tunc there being no Bar against it and confirmed the Decree made by the Lord Finch Girling contra Dom ' Lowther al' 34 Car. 2. fo 148. THat Sir Thomas Leigh deceased late Father of the Defendants John Thomas and Woolley Leigh became indebted to Edmond Girling deceased in several Sums of mony by Bonds and the said Girling became bound for the said Sir Thomas for several great Sums of mony against which Securities Sir Thomas gave the said Girling Counterbonds and in Hillary Term 28 Car. 2. Sir Thomas gave a Judgment of 1000 l. to the said Girling for the payment of 530 l. and in Aug. 1669. Sir Thomas made his last Will in writing and thereby devised to the Defendants Sir John Lowther John Currance and Edward Badby Executors of his said Will several Lands Lands and Tenements for the payment of his debts and to be by them sold for that purpose That the Swan Inn in St. Martins Lane being sold there ariseth a Question touching the Mony raised by such Sale whether it were well applied or not The Case being viz. That Sir Thomas Leigh upon his Marriage with Hannah Relfe Daughter of Anthony Relfe whilst he was under Age by Articles previous to the said Marriage with the said Hannah agreed to settle on himself and the said Hanuah his intended Wife and such as they should have between them Lands of 700 l. and in Consideration thereof the said Anthony Relfe was to settle and did settle upon the said Thomas and his Heirs Lands of 200 l. per Annum whereupon Sir Thomas Leigh July 1661. makes a Settlement upon himself and the said Hannah his intended Wife and their first second and other Sons in Tail his Mannor of Addington and other Lands in Addington and several Lands in Com' Surrey and Keut That afterwards in May 1665. Sir Thomas Leigh mortgaged to Mr. Peck for 2000 l. several Lands in Middlesex and Norfolk and afterwards in December 1665. those Lands and the moiety of the Swan Inn in St. Martins and the Reversion thereof were granted to Trustees upon several Trusts which by Deed 15 June 1668. appears to be performed and satisfied and thereupon on the same 15 June 1668. the said premisses were mortgaged to Sir John Lowther for 2500 l. which 2500 l. was raised and paid to Sir John Lowther out of the profits and by sale of the said Swan Inn which was formerly by voluntary Conveyance dated and setled by the said Sir Thomas Leigh upon the two Defendants Thomas and Woolley Leigh for Natural love and affection Voluntary Settlement That Sir John Lowther in April 1679. assigned the said Mortgage by conveying to one Burton and others the Mannor of Thorpe in Surrey and Shoelands and other premisses in Trust for the payment of such of the debts of Sir Thomas Leigh as should any ways incumber or disturb the Purchaser of the Swan Inn which said Lands are sufficient to pay the Plaintiffs debts and the Testators Ingagement being 1331 l. which debt is to be paid the Plaintiff by Decree of this Court The Defendants the Leighs insist That the Mony raised by the sale of the Swan Inn although paid to redeem the other Estate in mortgage to Sir John Lowther ought not to be applied so that the Land ought to be discharged of the Mortgage-mony or of what was paid to redeem the same but the said Lands ought still to be a Security for the said Mony to the use of the younger Children for whose benefit the said Swan Inn was setled and although the said Settlement was voluntary yet the same being a provision for younger Children ought not to be adjudged fraudulent as to a subsequent Judgment which the Paintiffs is or however not as to a subsequent voluntary Devise of their Father under which only the Creditors by Bond come in and therefore as to them the said mortgaged Lands ought to be charged with the said Mony raised by the sale of the said Swan Inn with Interest since it was paid to redeem the said Estate precedent to any benefit any Creditor by Bond can have out of the said Lands This Court declared Voluntary Conveyance though a provision for younger Children not to prevent satisfaction of subsequent Judgments That the said voluntary Conveyance ought not to stand in the way to prevent satisfaction of a subsequent Judgment for good Considerations and that the Monies due on the Plaintiffs Judgment and the Monies raised by sale of the Swan Inn was well applied to discharge the Mortgage on the other Estate whereby the mony due on the Judgment with Interest may be the more speedily raised by sale thereof and the mony raised by sale of the said Inn after the Judgment satisfied with Interest ought to stand secur'd for the benefit of the younger Children Mony applied to take off Mortgages satisfie Judgments and after to pay Bond-Creditors and be raised by sale of the said Estate and by Rents and Profits in the mean time precedent to the other Creditors not on Judgment and after the said Judgment and provision for the younger Children satisfied the residue to be applied to the other Creditors and decreed accordingly Comes Arglas contra Henry Muschamp 35 Car. 2. fo 524. THat Thomas Relief against over-reaching Bargains first Earl of Arglas the now Plaintiffs Father and William Earl of Arglas the Plaintiffs Brother were seised in Fee of the premisses in question and made divers Settlements thereof by which in case of failure of Issue Male of the said William the said Estate should come to
Plaintiff Charlotta his Daughter and Heir The Defendant Sir Richard Middleton insisted That Sir Thomas Middleton his Brother had in Consideration of 184 l. to him paid in 1680. conveyed to the said Defendant and his Heirs two Messuages being 11 l. 10 s. per Annum in Com' Denbigh and taking notice that the same was comprized in his Wives Joynture declared he would leave or give his Wife by Will or otherwise a sufficient compensation for the same so that he should not be Troubled And the Defendant insists That the 200 l. per Annum given her by the Will was intended to be as a Compensation and insists That Sir Thomas intended his Daughter more than 16000 l. and that such part of the personal Estate as was not specifically devised to his Executrix which was all he intended her ought to be applied towards satisfaction of the Testators debts and legacies and the Plaintiffs Portion and the rather for that by the true Construction of the Will the real Estate is subjected only supplementarily Real Estate subjected to pay Debts only supplementarily and that part of the personal Estate intended to the Executrix is specifically devised to her the Devise of the Goods and Stock were only intended in case the Plaintiff Dame Charlotta should live on her Joynture but she not residing on her Joynture he insists she is not Intituled to the said Stock and Goods and as to all other the Goods and Stock and Furniture the Defendant was well Intituled by the Will as Heir male of the Family according to the limitation of the Will The Plaintiff insists That the personal Estate not being devised for payment of of debts and provision being made for payment thereof out of the real Estate doth submit to the Court Whether the personal Estate ought to be applied for debts and legacies the real Estate being sufficient to do the same and whether if she be compelled to pay the debrs and legacies therewith she shall not be reimbursed out of the real Estate The Questions arising upon the said Will and now debated are viz. First Whether the personal Estate not specifically devised ought to come in Aid of the real Estate and be subject to the debts and legacies chargeable thereon Secondly Whether the Plaintiff Charlotta ought to have any greater Portion by the Settlement and Will than 16000 l. and whether she ought to have the several yearly Maintenances given by the said Deed and Will and to what time and times and whether the Stable of Horses did not belong unto her as being given to whomsoever shall be the Testator's Heir she being the Testator's Heir Thirdly Whether the Plaintiff the Lady Charlotta Middleton ought not besides her Joynture to have her Annuity of 200 l. per Annum and to have Furniture and Stock for her Joynture House and Lands and to have the Jewels and Chamber plate and Furniture of her Chamber as her Paraphanalia This Court declared it was intended the Daughter should have only 16000 l. Portion and that such of the Goods and Stock and Houshold-stuff at Chirke Castle which were devised to the Defendant Sir Richard Middleton did belong and ought to be enjoyed by the said Sir Richard Personal Estate not specifically devised to be applied to payment of debts and the Real Estate not subjected thereto and that the personal Estate not specifically devised away and which is not to be set out to the Plaintiff the Lady Middleton pursuant to the said Will ought to be applied and paid towards payment of the Debts and Legacies and the Portion of the Daughter and that the Plaintiff the Lady Middleton besides her Joynture which she ought to enjoy free from Incumbrances ought to have and enjoy the said Annuity of 200 l. per Annum Annuity in Augmentation of a Joynture and Arrears given and devised to her by the said Testator and that she ought to have her Paraphanalia and proportion of the Goods Houshold stuff and Stock for furnishing and stocking her Joynture-house and Demeasns to be set out by the Trustees according to the Will and the Daughter to have both the Maintenances by Will and Deed of Settlement and the Stable of Horses and all things specifically devised to her by the Will and decreed accordingly Whitmore contra Weld 1 Jac. 2. fo 106. THat William Whitmore deceased in 1675. by his Will devised to the Earl of Craven for the use of William Whitmore his Son the Plaintiff Frances Whitmores late Husband all the surplusage of his personal Estate and made his Son William Whitmore Executor and the said Earl of Craven his Executor during the Minority of his said Son and the said William the Father died and left a personal Estate of 40000 l. that William the Son at his Fathers death being but of the Age of 13 years the said Earl proved his Fathers Will and possessed all the personal Estate and the said William the Son having attained the Age of 18 years not having proved the said Will and being Intituled to the surplus of the said perfonal Estate in 1684. made his Will and thereby devised to the Plaintiff Frances all his personal Estate and whatsoever lay in his power to give and made her his Executrix and died in 1684. and the Plaintiff Frances being of the Age of 18 years proved his Will and is thereby Intituled to the personal Estate of William the Father But the Defendants one of them being Sister of William the Father and the other the Children and Grandchildren of the Sisters of the said William Whitmore the Father pretend the surplus of the personal Estate of William the Father belongs to them The said William Whitmore the Fathers Will is in these words viz. The Surplus of my Personal Estate my Debts Legacies and Funeral paid and satisfied I give to the Right Honourable William Earl of Craven for the use of my only Son William Whitmore and his Heirs lawfully discended from his Body and for the use of the Issue Male and Issue Female discended from the Bodies of my Sisters Elizabeth Weld deceased Margaret Kemesh and Ann Robinson in Case that my only Son William Whitmore should decease in his Minority without having Issue lawfully discended from his Body I Nominate and appoint my only Son William Whitmore Executor of my last Will and Testament I nominate and appoint the Earl of Craven during the Minority of my only Son William Whitmore Executor of my last Will and Testament The Defendant Dame Ann Robinson insists she is the Surviving Sister of William Whitmore the elder and so is Intituled to the Administration of William the Elder unadministred by William the younger and the Defendant Sir John Robinson and others the younger Children of the said Dame Ann Robinson insist That they are instituted by William the Fathers Will to an equal share of the surplus of the personal Estate of William the Elder the rather for that William the Elder made a Settlement
Charles to reward such of his Children and Grand children as they should demerit and as Sir Charles should think fit and not an absolute fixed Trust to create a certainty of right or in terest as to any certain Proportion in any of the Children or Grand children much less in the Plaintiff Civil Rich who demands the greatest part of the Estate and that it was in the Grandfathers power to give the said Estate or what Proportions thereof as he pleased to any of his Children or Grand-children but whatever of the real Estate of Sir Edwin was disposed or setled by the said Sir Charles by act Executed in his Life time or was devised or given by the Will of the said Sir Charles the Plaintiff not to be releived but dismist the Bill Boeve contra Skipwith 30 Car. 2. fo 140. THe Bill is a Suplemental Bill A Supplemental Bill for a further discovery to have a further discovery from the Defendant by way of Evidence for the better clearing the Matters depending on the Account which the Defendant hath not answered in the former Cause The Plaintiff pleaded the former Bill to which the Defendant answered and the Cause heard and the Account directed This Court ordered the Defendant to answer to all Matters in this Bill not answered to in the former Cause but the Plaintiff not to reply nor to proceed further Dom. Grey al' contra Colvile al' 30 Car. 2. fo 397. THe Plaintiff the Lady Greys Bill is to be relieved for a debt of 1500 l. and Interest on Bond Lands purchased in Trust decreed Assets to to pay Judgment wherein John Colvile did bind himself and his Heirs to repay the same unto the Plaintiff her Executors and Assigns that the same might be paid out of the Lands which were purchased by the said John Colvile with his own proper Mony in the names of himself and the Defendants Wife to hold to them two for their lives and then to the Heirs of Colvile and the rest were purchased in the names of the said Defendants Morriss and Saunders in Trust for the said John Colvile and his Heirs That soon after and before the 1500 l. was paid the said John Colvile died and the right and equity of the premisses during the life of the said Defendants Wife is in Josia Colvile and the Reversion in Fee after the death of the said Wife will descend to the said Defendant Josia Colvile as Son and Heir of the said John Colvile and the profits are received by him or for his use that the said John Colvile dying intestate Administration is granted to Dorothy his Relict who pleads she hath no personal Estate whereupon the Lady Grey commenced a Sute at Law by filing an Original for her said debt against the Defendant Josia as Son and Heir of the said John Colvile and hath got Judgment thereon to have satisfaction for the said debt out of the Reversion of the Lands of John which descended in Fee to the said Defendant Josia Colvile and ought to have satisfaction accordingly but the said Defendant Josia pretendeth he hath nothing by descent in present but the Reversion of the Lands purchased in the names of John Colvile and his Wife after the death of his Wife whereas he and the other two Defendants were only Trustees for John Colvile and his Heirs and their Trust being now come to the Defendant Josia they are liable as Assets in equity for satisfaction of the Plaintiffs debts and the Plaintiff ought to be let into the immediate Possession and the said Josia also insists That the premisses are incumbred by a former Judgment of one Lease for 800 l. and the Plaintiffs Creditors and other the Creditors in their Suit seeking relief against the same Defendants upon the same Trust and Equity and to have their debts paid out of the said Lands they insisting they are Creditors by Judgment grounded on Original of the same day and date with the said Lady Grey and ought to be satisfied in equal degree and time The Plaintiffs Creed and the other Creditors insist Judgments to Attach Lands according to priority of Originals That they for so much as the Estate in Law of Wise is in the Heir that their Judgments ought to Attach the Lands according to priority of Originals and tho' the said Leke have obtained a Decree prior to the Creditors in these Suits yet the same is to be subject to the direction of this Court and ought not to take place but according to the Date of their Originals This Court it being admitted by all that the Original on which the said Lekes Judgment is grounded is prior to all the other Creditors Originals and that the Plaintiff the Lady Grey and Creeds Originals are next in priority and bear the same date one with another and ought next to be satisfied with other Judgments who Originally bear the same date declared that the Estate purchased in the Names of the Defendants Wise as aforesaid was a Trust for life attending the Reversion and so liable to make the several Plaintiffs Satisfaction for their Debts and should be enjoyed by the Plaintiffs against the said Wise and Josiah Colvile the Heir and the Court decreed that if the Estate of Wise as aforesaid were not sufficient then the said Reversionary Lands purchased in the Names of the said Morris and Sanders after the death of Sir John Tufton who hath an Estate for life in the said Lands should go towards Satisfaction of the said Debts Carr contra Bedford 30 Car. 2. fo 64. THe Bill being Will. that Edmund Arnold having no Child by his Will whereof he made the Defendant Bedford Executor gave several Legacies to several persons and uses and gave all the rest and residue of his Moneys and Personal Estate after Debts paid to and amongst his Kindred according to their most need to be distributed amongst them by his Executors saving such Legacies as should by his Will or any Codicil further dispose of and the Testator afterwards by Codicil gave other Legacies and desired that a care and regard should be had to the Plaintiff John Buncher The Defendant the Executor insists that he not knowing to what degroe of Kindred the bequest of the said residue ought to extend he had annexed two Schedules of Remorest Kindred and is advised until their several Claims were examined and setled by this Court he could not safely make a distribution This Court taking into consideration Devise after Debts and Legacies paid the Residue amongst his Kindred according to their most need this to be extended according to the Act for better Settlement of Intestates Estates to what degree of Kindred the Testator's bequest of the residue of his Personal Estate to his Kindred of most need could extend that the Act of Parliament for better setling Intestates Estates was the best Rule that could be observed as to the Limiting the extent of the word Kindred and
is born since the Will that Child shall have a share the same being given to them by Name and as to the Real Estate it being ordered by the Testator to be added to his Personal for increase of all his Childrens Portions and the said Sarah being born before he died the same to be Sold and divided amongst the five Children viz. Benjamin Samuel Mary Hannah and Sarah equally Sale contra Freeland 32 Car. 2. fo 272. THat Thomas Freeland the Defendants great Grandfather Will. Settlement Revocation being Seized of the premisses did by his Will in writing devise the same to Nicholas his Son for life only and afterwards to his Grandson John late Husband of the Defendant Frances and Father of the Defendant John and his Heirs for ever That the said Thomas and Nicholas being dead John the Grandson entred and for 300 l. Mortgaged the premisses to the Plaintiff and not long after the said John on confidence of the power he had to dispose of the premisses made his Will and the Defendant Frances Executrix and devised the premisses to be Sold for payment of his Debts But the Defendant insists That the said Thomas the great Grandfather had no power to dispose of the same premisses and if he had he did not pursue it regularly for that he had made a Settlement of the premisses in 1651. upon one Henry Weston and his Heirs to the use of him the said Thomas for life and after to Nicholas his Son for life and after to the use of the said John his Grandson and the Heirs of his Body with remainder over and that the Defendant John the Grandson by virtue of the said deed as Heir in Tail claims the premisses whereas if any such deed were it was with a power of Revocation by any Writing or Will in writing to be executed in the presence of three Witnesses and was revoked by his making his said Will in the presence of three Witnesses though one of them then present did not subscribe the same That the said John the Grandson had the full power of the Estate and the grant made to the Plaintiff ought to be supported in Equity being for valuable consideration though the power was not litterally pursued in the Circumstances of three Witnesses the intent of the Person appearing as sufficiently by two Witnesses as if there were three and submit to the Judgment of this Court The Plaintiff farther insisting That the said Thomas the great Grandfather takes notice in the preamble of his Will of the power by him reserved upon the said Settlement to make any alteration thereof during his life and then by the said Will deviseth the premisses to the said John his Grandson in Fee and he Mortgages to the Plaintiff and there is no Colour but the Defendants ought to redeem or be foreclosed This Court it appearing that there was more than two Witnesses present at the publishing the Will A Settlement with power of revocation by Will in writing executed in the presence of three witnesses but one of them did not Subscribe his Name yet Decreed a sufficient Revocation though two only Subscribed their Names thereto and upon hearing the words of the power and also the Will of the said Thomas Read declared that as this case was Circumstanced there ought to be a Redemption or a foreclosure and that the Will although but two Witnesses to it did sufficiently revoke the said deed of Intail Rose contra Tillier 33 Car. 2. fo 435. THat William Tillier deceased Copyhold Surrendred on Condition to pay 200 l. to Katherine at 21 years of Age and if she die before 21 without Heirs of her Body then to the Surrendree Katherine dies before 21 leaving a Son Decreed the 200 l. to be paid to the Son and the Lands to stand charged therewith 14 Car. 2. Surrendred Copyhold Lands of Inheritance to the use of the Defendant J. Tillier his Heirs and Assigns for ever upon condition that the Defendant should pay or cause to be paid to Katherine Tillier the Daughter of the said William Tillier 200 l. when she should accomplish the Age of 21 and if the said Katherine should die before 21 without Heirs of her Body then the said 200 l. to be for the use of the said Defendant but if default should be made by the said Defendant then the said Copyhold Lands should be to the use of the said Catherine her Heirs and Assigns and the said Surrender to be void and the said Willian Tillier after the said Surrender and before he died by writing appointed the said Defendant not only to pay the said 200 l. to the said Katherine but also 6 l. per Cent. till such time as the same became due That the Plaintiff married the said Katherine and had by her one Son named George that after Katherine died and then George and the Plaintiff took Administration to them both whereby he is intituled to the said 200 l. with damages The Defendant insists That Katherine died before the Age of 21 and so he is not liable to pay the said 200 l. or to give any Account of the Lands or Profits in the Surrender This Court decreed the Defendant to pay the Plaintiff the said 200 l. and that the said Lands so surrendred stand charged therewith Thompson contra Atfield 33 Car. 2. fo 412. THe Bill is to discover a purchase Deed of Frogpoole Marriage Settlement purchased by Henry Atfield the Plaintiffs Great Grandfather to him and his Heirs and that William Thompson the Plaintiffs Grandfather married Mary the eldest Daughter of the said Henry Atfield who declared that he had made the purchase aforesaid for the benefit of the said William and Mary his Wife and for the Heirs of the said Mary and that he would settle the same accordingly but the said Henry Atfield dying before any such Deed was executed yet the said William and Mary were in possession long before the death of the said Henry and paid no Rent and the said Henry leaving a Son at his death viz John Atfield the Defendants Father who having a great affection for Anthony Thompson the Plaintiffs Father who was the Son and only Child of the said William and Mary his Aunt a Match was proposed between the said Anthony and Elizabeth Smith the Plaintiffs Father and Mother which took effect but before and in consideration of the said Marriage the said John Atfield the Defendants Father setled the said premisses on the said Anthony the Plaintiffs Father and his Heirs for ever and the said Anth. had by the said Elizabeth the Plaintiff his eldest Son and Heir But the Defendants pretend the said Deed is defective in Law to have which Deed made good and supply the defect thereof by Equity by the Defendant according to the intent of the original Settlement made by John Atfeild the Defendants Father is the Bill The Defendant insists There could be no such Marriage Agreement for setling
the raising their Portions to 1500 l. apiece having as is recited made provision by his Deed dated the last of December 1651 for advancing their Portions to that Value And he doth by his Will declare and appoint that such Portions should be paid unto them the said Susan and Martha severally at the respective Ages of 21 years A Deed and a Will construed as one entire provision or limitation how Portions should be raised or sooner if they should be married and both of them dying unmarried before they or either of them attained the Age of 21 in the life time of William the Grandson And the said Deed of Decemb. 1651. relating to the Will and both of them making one entire provision and limitation of the said Portions how the same shall be raised and what time paid His Lordship and the Judges were all clear of Opinion there was no ground for the former Decree made by the Master of the Rolls or pretence of Claim to either of the said Portions of 1500 l. by the Plaintiff as Administratrix to Susan and Martha and discharged the Decreed and dismist the Bill Beauchamp contra Silverlock 20 Car. 2. fo 765. THat William Beauchamp Orphans Mony the Plaintiffs Father being a Freeman and Citizen of London by his last Will gives a Third part of his Lands and Tenements whatsoever and wheresoever to the Plaintiff and appointed Dorothy his wife Guardian to his Children and made her sole Executrix and Richard Cambden Robert Cheslyn John Pace and Hogan Hovell Overseers and the said Dorothy makes her Will afterwards and gave the greatest part of her Estate to the Plaintiff and Willed her Brother Hogan Hovell and her Sister Margaret Cheslyn and the Survivor of them to be Guardian to her Children and made the said Hogan Hovell and Margaret Lovell her Executors and died That by Articles of Agreement between Hogan Hovell Robert Cheslyn and Margaret his wife reciting the Will of Dorothy Beauchamp whereby they agreed to administer the Estate to the best benefit of the Children and exhibit a true Inventory into the Prerogative Court and that they should with the consent and not without the consent and knowledge of each other use their best endeavours to get in the Estate and not to release any part of it without each others consent and that if Hogan Hovell should die and Margaret survive then the Executors or Administrators of Hogan Hovell to make a true account to Margaret of all the Estate which he should receive of the said Testators and pay the same to Margaret or to such person who shall by the consent of the said William Beauchamp the Plaintiff be chosen as Guardian to receive the fame or to such person to whom by Right or Law the same ought to be paid and the same Agreement and Covenant is if the said Margaret should die and Hovell survive That Robert Cheslyn died and the said Margaret married the Defendant James Silverlock And Hogan Hovell possest himself of the greatest part of the personal Estate of the Plaintiffs said Father and Mother and received the profits of the Lands of the said Margaret receiving only Title as Executor That Hogan Hovell made his Will and Mary his wife Executrix and afterwards the Guardianship of the Plaintiff the Orphan is at his Friend's Decree committed to Sir William Bateman That the said Mary Hovell the Executrix of Hogan exhibited an Account into the Orphans Court of the Mony received by her Husband belonging to the Plaintiff out of which Allowances being made there rested due to the Plaintiff 933 l. and that afterwards the Defendant Silverlock and Margaret his Wife the Surviving Executrix of Dorothy did by their Deed impower Sir William Bateman then reputed a Man of great Estate to receive of Mary Hovell Executrix of Hogan Hovell who was the other Executor of the said Dorothy the said 933 l. to the use of the Plaintiff and to give a discharge for the same that Sir William Bateman received it accordingly and gave a Discharge for it in the Name of Silverlock and his Wife and gave Security after that to the Court of Aldermen to pay the Plaintiff 800 l. That Mary Hovell died and made Executors Executors paying in Orphans Mony by consent of Friends and Trustees into the hands of Sir W. B. Guardian who gave Security to the Court of Aldermen not to be charged upon the Insolvency of Sir W.B. That the Plaintiff did several times after he came of Age own Sir William Bateman to be his Debtor for the 933 l. that the Plaintiff received of Sir William Bateman 440 l. and gave Acquittances for it the first was on the 4th of January 1663 the last on the 25th of July 1666 that the Plaintiff came of Age in Decemb. 1663 and the said Sir William Bateman became Insolvent at Christmass 1666. The Question touching the said 933 l. claimed by the Plaintiff and whether the same should be charged on the Defendant Silverlock and surviving Executor of Dorothy Beauchamp or on the Defendant Sir William Bateman who had given Security to the Chamber of London as aforesaid for the Plaintiffs use This Court as to the Executors of Mary Hovell declared there was no reason to charge him therewith but that they ought to be discharged and dismist from being accountable for the same And as to the Defendant Silverlock the Case being as aforesaid declared that there was a clear Intention of all parties to perform the parties aforesaid and that the said Defendant Margaret never received any Estate during Hogan Hovell's Life and that Sir William Bateman being chosen by the consent of the Friends of the Plaintiffs and by the Order of the Court of Orphans appointed Guardian to the Plaintiff she the said Margaret gave in an Account to the Court and impower'd Sir William Bateman to receive the Mony who before had given Security to answer the same or the greatest part thereof and when the Plaintiff came of Age he admitted and owned Sir William Bateman to be his Guardian and received several Sums of Mony from him and Sir William proved not Insolvent till three years after and so there being no default in the said Defendant Margaret there was no reason to charge her the said Margaret with the same but that she ought to be dismist and discharged from the same But Sir William having given Security to the Court of Orphans for 843 l. part of the said 933 l. by him received by Order of the Defendant Margaret and that for the residue being 90 l. 10 s. there was no Security given by the said Sir William This Court Declared That the Defendant Margaret ought to be charged with the same and Decreed accordingly but not with Interest for it Windham contr Love 20 Car. 2. fo 100. 21 Car. fo 741. THe Bill is Executory Devise That the Dean and Chapter of Winchester June 17 Jac. granted the premisses to Gilbert Searle his Heirs or
years Did by Deed in 1639. in consideration of a Marriage with Elizabeth his then Wife and for that she had parted with her Interest in Goods Consideration c. which by Agreement she had the Disposition of for her own use and other Consideration herein mentioned did Assign over the said Premisses and all his Term therein Lease Assigned in Trust for a Joynture and after for Children to Rumbald Jacobson and Abrah Beard on Trust that the said Eliz. should have the profits during Life and after to James Paul Jane and Mary her Children or such of them as the said Elizabeth should appoint by her Will and for want of such Appointment to the said James Paul Jane and Mary or so many of them as should be living at her decease share and share alike and after Elizabeth dyed Paul the Son being dead in her Lifetime Afterwards by deed in 1643. in consideration of a Marriage between the said Philip Jacobson and Frances Earnely and for a Joynture for the said Frances and for Provision for such Children as he should have by her the said Philip Jacobson and James his Son Assigned over the said Premisses for the remainder of the said Term of 60 years and all his Goods and Houshold stuff unto William Daniel and Alexander Staples their Executors c. on Trust Trust to permit the said Frances and Philip and such Children as they should have between them to receive the profits during the said Term and after the decease of him and his said Wife without Issue then on Trust as to part to suffer the Executors of the said Frances and as to the residue the said James Jacobson his Executors c. to receive the profits during the Term afterwards by deed in 1646. Reciting all Assignments and Indentures aforesaid he the said Philip Jacobson Assigned over the said Premisses and his Term therein to Alexander Staples and Jeffery Daniel their Executors c. on Trust as to the said Frances Jacobson for the Premisses limited to her by her first Joynture and as to several other parcels of Land named as in the said Deed is recited which said last premisses contain 132 Acres which are in Trust for the said James Jacobson from the death of his Father during the residue of the Term and in case the said James should remain unmarryed or being Marryed and should dye without Issue and his Wife being a Widow then the Rents and Profits thereof to remain and be to his younger Brother and Sister Lelease of Trusts and afterwards James and Thomas Earneley Son in Law of the said Philip having Marryed Jane one of the Daughters of the said Philip did 22 Car. 1. Release to Staples and Daniel and to the said Phillip and Joanna Jacobson vid. Executrix of Rombold Jacobson who Survived Beard all and all manner of Trusts and demands whatsoever and Suits in Law or Equity which they or either of them their Executors c. had from the beginning of the World unto the date thereof in all the Lands and Tenements with the Appurtenances then or theretofore in the tenure of Philip Jacobson aforesaid in the County of Wilts and by another Release in Jan. 1647. the said James and Thomas Earneley Released unto the said Philip Jacobson and Joanna Jacobson all manner of Trusts and demands whatsoever in all Lands in the County of Wilts as in the former Release and afterwards by deed in 1653. reciting that there was a Marriage then shortly to be had between the said James Jacobson Son and Heir of Philip Jacobson and one Margaret Still the said Philip did Assign over unto John Still and Nicholas Still their Executor c. the said 123 Acres for the Residue of the Term to the use of James and Margaret for their Lives and after their Deceases to the right Heirs of the said James begotten of Margaret and if Margaret should Survive James and have no Child by him and he dye before the end of the Term then she should have power to sell 51 Acres of the premisses and the Residue to the Executors of Philip and if Margaret dye in the life-time of James not having any Issue of her Body by him begotten then living then to the use of the said James Jacobson his Executors Administrators and Assigns for the residue of the Term which Marriage took effect and Margaret dyed without Issue in the Lifetime of James after whose Decease the said James being in possession by Deed in 1661. for 400 l. Mortgaged the 123 Acres to Elizabeth Brinley and yet enjoyed the 123 Acres till he dyed and the said Elizabeth Assigned over the said Mortgage which now by mean Assignments is come to the Plaintiff and James is dead without Issue or Brother and the Defendants Zenobia Frances and Rachell do him Survive This Court was fully satisfied that the Deed in 1653. Voluntary conveyance by which the said James derived his Title and afterwards made the said Mortgage under which the Plaintiff claims Remainder after a Limitation of a Term to an Issue Male void in Law was a good Conveyance and well executed in James and that the Conveyance in 1646. was a voluntary Conveyance and the Estate thereby claimed by the Defendants created being an Estate in remainder after a Limitation of a Term for years to an issue in Tail was void in Law and Decreed the Plaintiff to the possession of the 123 Acres or the Mony due on the Mortgage and to enjoy against all the Defendants and Decreed that the Plaintiff and Defendant Hopkins who is Administrator of the Mortgager James Jacobson to come to an account Oliver contra Leman al' 29 Car 2. fo 102. A Trial at Law is directed to the Plaintiff to try his Right to a Reversion of Lands after the Death of the Defendant Wainwright so the Plaintiffs desire what time they think fit to try the same A Tryal at Law directed to be within a precise time but the Defendant insists that the Plaintiff ought to be confined to a convenient time which was prayed might be the Rule in this Case and that the Defendant might not be kept in suspence and to wait on the Plaintiffs Convenience when he shall think fit to try the same This Court ordered it to be Tryed in Easter Term next or the Issue be taken pro confesso Stawell contra Austin 29 Car. 2. fo 579. THat George Stawell Father of Vrsula and Elizabeth Stawell being seized in Fee of Lands Construction of a Will by Deed and Recovery thereon setled all the said Lands on the Defendant Sir John and Robert Austin and their Heirs to the said George for Life remainder for such Estates and Charges as he by Will or other writing should appoint remainder to the Heirs Males of his Body with remainders over and by Will persueant to the power reserved by the said Deed devised the premisses setled by the said Deed to the said
Defendant for 99 years after his death upon Trust in Case he left no Son or such as should die before 21 without Heirs Males and should leave one or more Daughters for raising of 12000 l. if but one Daughter for such Daughter and if two or more Daughters then 20000 l. to be raised for their portions to be equally divided between them and to be due and payable at their respective Ages of 21 years or days of Marriage and the said George died leaving no Son and having only three Daughters viz. Vrsula Elizabeth and one Ann Stawell who died since her Father and that the said Testator George his Relict married the Defendant Seymore and she on the death of her Daughter Ann took the Administration of her Estate and also soon after died leaving the portion of the said Ann in the said 20000 l. Un administrated and Administration of the said Anns Estate was granted to the said Vrsula and Elizabeth her Sister who are intituled to the said Anns personal Estate and that the said 20000 l. ought to be raised by the said Trustees out of the Lands setled as aforesaid but the Defendants the Trustees insist That by the words of the Will it is dubious whether the whole 20000 l. ought to be raised or any more than 12000 l. When Land to be charged with portion or not upon the words of the Will the said Ann being dead unmarried and before 21. And the Defendant the Heir insisted That as the Case is the portions of the said Ann ought not to be charged on the said Lands so the only Question before the Court being whether the Trustees shall raise 12000 l. or 20000 l. for the said Plaintiffs Vrsula and Elizabeth It appearing plainly to this Court that by the words of the said Will that if the said Testator George had two Daughters or more Daughter then 20000 l. should be raised This Court is of Opinion and declared that the Lands ought to be charged with the 20000 l. and the payment thereof to the Plaintiffs Vrsula and Elizabeth Lawrence contra Berny 29 Car. 2. fo 156. THis Case is on a Bill of Review Bill of Review This Court declared they would not make Error by construction and where a Decree is capable of being executed by the ordinary Process and Forms of the Court and where things come to be in such a State and Condition after a Decree made that it requires an original Bill and a second Decree upon that before the first Decree can be executed In the first Case whatever the inniqity of the first Decree may be yet till it be reversed the Court is bound to assist it with the utmost process the course of the Court will bear for in all this the Conscience of the present Judge is not concerned because it is not his Act but rather his sufferance that the Act of his Predecessor should have its due effect by ordinary Forms But where the common Process of the Court will not serve but a new Bill and a new Decree is become nenessary to have the Execution of a former Decree is in its self unjust there this Court desired to be excused in making in its own Act to build upon such ill Foundations and charging his own Conscience with promoting an apparent injustice and to this condition hath the Plaintiff Lawrence brought himself for he forbore to apply himself to this Court to support him as one that claimed under the Decree in 1650 or to pray an Injunction to stop Berneys proceeding at Law but stay'd till Berney had recovered the Land by a Tryal at Bar Where no ordinary Process upon the first Decree will serve but there must be a new Bill to pray Execution of the first Decree by a second Decree and been put into Possession by the Sheriff and now no ordinary Process upon the first Decree will serve but he is drawn to a new Bill to pray Execution of the first Decree by a second Deree and this obligeth the Court to examin the grounds of the first Decree before they make the same Decree again And this Court was not of this Opinion alone but it was also the Opinion of others that were before him who had made several Presidents in like Cases and would not enter further into Arguments of the Errors Lawrences Bill was an original Bill to Execute two Decrees in 1650 and 1651 and the Defendant Berney now also Plaintiff it being cross Causes brought his Bill of Review to Reverse the said Decree c. as Unjust and Erroncous That the first Decree by the Lord Coventry in 30 Car. 1. decreed a Sale of the premisses for a performance of the Trust that in 1650 a Decree was made to frustrate the Lord Coventry's Decree Priske contra Palmer 29 Car. 2. fo 323. THis Court was satisfied the Plaintiff had a quiet enjoyment for a long time and declared Want of a surrender Aided That notwithstanding a Surrender is wanting yet the Plaintiffs Title ought to be supplied in Equity and decreed the Plaintiff to enjoy the premisses and the perpetual Injunction to stay all proceedings at Law Woolstenholm contra Swetnam 29 Car. 2. fo 146. THat Thomas Swetnam deceased Settlement being possessed of a Personal Estate and making provision for his Grand-Children being the Children of Thomas his eldest Son being five in number whereof Peter Swetnam was one did by Deed authorize the Defendant William Swetnam who was his second Son and the Defendant Thomas Swetnam who was his Grandchild to receive 32 l. Rent which was an Arrear of 16 l. per Annum Annuity of Foster's Farm in Trust to be divided amongst his said five Grandchildren at the Age of 21 and the said Thomas the Grandfather by some other Deed charged his whole Lands on a Settlement thereof on the Defendant Thomas with the payment of 1000 l. equally amongst his said five Grandchildren whereof the said Peter was one and in further kindness to the said Peter in 1657. by Will gave him 100 l. to be paid out of the Personal Estate and made the Defendant William his Executor and the said Peters Father to increase his Fortune put out several Sums of Mony in the said William's Name and deposited other Mony in the said Defendants hands for the said Peters use and by his Will surther gave to Peter 30 l. and Peter married the Plaintiff Martha and by his Will devised all his Estate to the said Martha whereby the Plaintiff is intituled to the said Devisee and to the said Peters shate in the 1000 l. so to be relieved for the Sum is the Bill The Defendant William insists That Thomas the Father of Peter died possessed of a Personal Estate of 266 l. and the Defendant as his Executor possest it 1000 l. to be raised and divided amongst five Children one dies before distribution the Survivors shall have his share and not the Devisee of him that is dead and paid
by Will John Bassano taking notice of the aforesaid deed provides that in case Elizabeth his Wife were with Child of a Son then his Executors to pay to the Plaintiff Frances 300 l. but if a Daughter then he had otherwise provided for the Plaintiff Frances and such Daughter by deed and shortly after dyed leaving John Bassano his Son and Heir by a former Venter and shortly after the said Elizabeth the youngest Daughter was Born and died in a Month after and in 1666. Elizabeth the Mother dyed leaving the Plaintiff Frances whereupon John Bassano the younger took the Plaintiff Frances in Guardianship and having the said Will and Deed in his Custody pretended to her she had but 300 l. Portion left her by her Father That in 1669. the Plaintiff Tucker and the Plaintiff Frances inter-married and John Bassano still concealed the said Will and Deed that the Plaintiff Tucker and John Bassano the younger agreed that the 300 l. left to the Plaintiff Frances by her Father should be laid out on Security or Purchase for the benefit of the Plaintiff Frances for life in case she survived the Plaintiff Tucker and accordingly the Plaintiff Tucker Sealed a Deed 10th of December 1669. whereby the Plaintiff released the said 300 l. to the said Bassano the younger upon Trust and the said Bassano Covenants with the Plaintiff that he his Executors or Administrators should either continue the said 300 l. in his or their Hands at Interest or lay out and dispose of the same upon Security or Purchase and permit the Plaintiff Tucker during his life and the Plaintiff Frances during her life to receive the Interest and Benefit thereof and to the Plaintiff Tucker and his Heirs Executors c. That in 1671. Bassano the younger died and made the Defendant Searle his Executor and the said Searle refused to pay the said 300 l. pretending the want of Assets And the Plaintiff Tucker insists to have the said 300 l and interest to be chargeable out of the Walthamstow Lands in regard the said Lands were originally charged therewith but the Defendant the Executor says the said Lands are sold by him to one Woots and the Plaintiff Tucker insists that such Sale was without notice of the Plaintiffs Title and charge of the said 300 l. on the said Lands and that Woots had Collateral Security to secure him against the Plaintiff wherefore in regard the said Lands were Originally charged with 300 l. and the Plaintiffs were drawn in to accept of the said Covenant which is but a personal Security by the contrivance of Bassano the younger who kept the Plaintiff ignorant of the said Deed and Will for that the Plaintiffs Release is only upon Trust for payment of the said 300 l. the Plaintiffs do insist that in equity the said Lands ought still to be chargeable with the said 300 l. and interest and ought not to rely on the said Covenant The Defendant Searle insists that Bassano Junior by his Will devised the Walthamstow Lands to be Sold for payment of his Debts and Legacies which was Sold to Woots as aforesaid for 1260 l. and gave him Collateral Security by Bond of 1500 l. to secure him against the Plaintiffs demands and that the whole Personal Estate of the said Bassano Junior by Sale of Lands and otherwise fell short to pay the Plaintiffs demands the said Searle the Executor having paid Debts of a higher nature and say that the Plaintiff cannot have their whole demands but must come in proportion with other Creditors And the Defendant insists That the Walthamstow Lands ought not to be charged with the said 300 l. for that on a Bill in this Court exhibited by the Plaintiff against Bassano Senior whereby the Portions of the two Elizabeths Sisters of the Plaintiff Frances were demanded to be chargeable on Walthamstow Lands and alledged that Bassano Junior had secured the 300 l. being the Plaintiff Frances Portion by the said deed of Covenant and prayed to have the said two Elizabeth's Portions or the value of the Lands deducting the 300 l. secured to the Plaintiff Frances and in October 25. Car. 2. it was decreed that the Plaintiff should have the 300 l. which belonged to the youngest Elizabeth and the said Lands to be chargeable therewith But the Court then declared they could not decree the 300 l. claimed by the said Plaintiff Frances in her own right but that she must rely on the said Deed of Covenant Defect in a Bill for that they did not complain thereof by their Bill And the Defendant insists that the said decree being Signed and Inrolled the said 300 l. ought not to be charged on the said Lands but that they ought to rely on the said deed of Covenant they having thereby released the said Lands That the Defendant Searles cross Bill is for relief against a Bond of 600 l. on which he is Sued at Law and for Equity did insist Cross Bill for Creditors to take their proportionable shares but the debts having been paid to them and releases given dismist That he was Sued here by the Plaintiff Tucker and his Wife for the 300 l. aforesaid and that there was a decree against him in this Court at the Suit of one Whitton one of the Defendants to that Bill for 700 l. so that if the Plaintiff Tucker and other Creditors should recover their demands there will not be Assets and therefore prayed that the Plaintiff Tucker and Callwall might take their proportionable shares of what Assets was left but the Plaintiff Tucker insisted that the said 300 l. was originally charged on Walthamstow Lands by the said Marriage Settlement and was not discharged by the said Covenant or Release The said other Creditors Callwall c. insists That they have a Verdict against Searle the Executor for the Money due on the said Bond upon Evidence of Assets in Hands and had taken him in Execution and he had paid the said Money thereon and the said Creditors had released the said debts and therefore ought not to be farther troubled for the same This Court declared Lands originally charged with the payment of Portion and a release and covenant in Trust doth not discharge the same the said Walthamstow Lands were originally charged with the Plaintiffs 300 l. and that the said deed of Release and Covenant being made only in Trust for payment of the said Money and when the Plaintiffs were not told of the said Deed and Will did not discharge the same but the said Lands ought to make it good without damages although there were not Assets in the Executors Hands in regard the said Lands were sold under notice of the Plaintiffs demands and further declared he could not relieve the said Searle as against the said Callwall for that he by Coertion of Law had paid the Money recovered against him and the said Callwall had released the same to him and dismist Searles Bill Annand contra Honywood 32 Car. 2. fo
if he were intituled to a Bill of Revivor he could not revive for Costs there being no Decree inrolled This Court allowed the Defendants Demurrer and dismist the Plaintiffs Bill of Revivor Raymond contra Paroch Buttolphs Aldgate in Com. Midd. 32 Car. 2. fo 517. THe Plaintiff being one of the Kings Waiters in the Port of London Priviledge and yet used the Trade of a Common Brewer and executed his said place by a Deputy The Defendants insist He is not to be exempted from bearing the Office of Overseer of the poor in the Parish The Plaintiff insists That the Kings Officers who serve his Majesty in Relation to his Revenue ought to be exempted from Parish Offices though they executed their places by Deputy and use an other Trade they being still liable to answer any misdemeaner committed by their Deputies and if their Deputies should be absent at any time they are bound to execute the same themselves which often falls out and Presidents of this Nature have often been found and hopes this Court will not take away any the priviledges such Officers ought to enjoy in right of their Offices and that a Supersedeas of priviledge be allowed the Plaintiff and his Writ of priviledge stand The Defendants insist That the Plaintiff driving a Trade of a Common Brewer and getting Money in the Parish he ought to bear the Offices of the Parish notwithstanding his said Office and if any Priviledge were due it ought to be granted by the Court of Exchequer and not by this Court This Court declared The Kings Officer priviledge from Parish Offices tho' he drive a Trade in the Parish That the Kings Officers ought to have the benefit of their priviledge and the execution thereof by a Deputy nor his dealing in another Trade should not in any sort be prejudicial to him he being to answer for any neglect or misdemeanour committed by his Deputy for that it is not reasonable that the Kings Servants or Officers should have nothing else to subsist on Such priviledge grantable out of Chancery as well as Exchequer but their immediate Services or Places under his Majesty and take no other imployment on them and although a priviledge of that nature be grantable in the Exchequer a Writ of priviledge under the great Seal was and ought to be taken in all respects as effectual and therefore allowed the Plaintiff his priviledge Dominus Bruce contra Gape 32 Car. 2. fo 723. THe question in this case is Deed. Will. Revocation whether the Mannour of Mudghill is within the devise of the Duke of Somerset by his Will in August 1657. of the Residue of the Estate unsold for the benefit of his three Daughters and the Lady Bruce his Grand-Child or whether it belongs to the Lady Bruce only as Heir at Law and whether the same be liable and comprehended in the Trust together with other Manours and Lands to Satisfie the 19100 l. Debts only or is subject with the other Lands in the said Deed and Will for Satisfaction of all the debts of the said Duke William The Case is viz. that the Plaintiff the Lady Elizabeth Wife of the Lord Bruce is Grand child and Heir of William late Duke of Somerset and Sister and next Heir of William also late Duke of Somerset who was the only Son of Henry Lord Beauchamp the Eldest Son of William Duke of Somerset the Grandfather which said Duke William the Grandfather did by deed the 13 Nov. 1652. Convey to the Lord Seymour Sir Olando Bridgman c. and their Heirs the Mannour and Lands in Trust for payment of Moneys to the Lord John Seymour and the Lady Jane Seymour Then upon further Trust to pay Debts amounting to 19100 l. and after in Trust for raising 10000 l. for the Lord John Seymour and 6000 l. for the Lady Jane Seymour and Trustees to account yearly to the right and next Heir of the said Duke with a power of Revocation in the said deed as to all but the said 19100 l. debts and that the said Duke William 19th of April 1654. as to a further provision for the payment of the Debts by deed conveyed to the Earl of Winchelsea and the Defendant Gape and others and their Heirs the Lands in Wilts and Somerset worth 30000 l. and sufficient to pay all his Debts to himself for life and after for payment of Annuities and after his death then to the use of the last Trustees and their Heirs upon special Trust that they should lease out the premisses and with the Mony thereby raised and otherwise with the profits pay all such Debts for which the Plaintiff stood ingaged for the said Duke and that the overplus of the said Mony and Profits to be paid and the Lands unsold to be conveyed to the right Heirs of the said Duke wherein was a power reserved in the said Duke by deed or Will to revoke the said Uses or Trust That the said Duke by deed the 20 of April 1654. reciting that the Lord Beauchamp the Eldest Son died since the deed of the 13 of November 1652. and had left only one Son and the Plaintiff Lady Bruce and that the Lady Bruce was left unprovided for and reciting the deed of the 19 of April 1654. made an Additional provision for the payment of his debts which made the Lands the deed of 1652. of a greater value than would satisfie the said Trust and therefore appointed the last Trustees in the deed of 1652. should out of the Money to be raised by Sail of those Land and the profits thereof pay the Plaintiff Elizabeth Lady Bruce 100 l. per Annum till her Age of 17 and after 300 l. per Annum and then after the debts in the deed of 1652. and Portions to the Lord John and Lady Jane Seymour then to pay Elizabeth the the Lady Bruce 6000 l. portion also with power of Revocation That afterwards the said Duke by Will 15 of August 1657. having as aforesaid secured the said 19100 l. debts devised to his Son the Lord John Seymour and the Heirs Males of his Body the said Mannour of Mudghill and because the Lady Ann Beauchamp his Sister in Law had the same as part of her Joynture and the same was Leased out for the life of Pleydall his Will was that till the same fell in possessision to the Lord Seymour the Trustees in the deed of 1652. should pay him maintenance and they to convey to him when they thought fit and by the said Will taking notice of the deed in 1652. and of the 19 of April 1654. and also of his power of Revocation appointed and declared the Trusts in those deeds for his Grandson William Lord Beauchamp and the Plaintiff the Lady Elizabeth Bruce or for the benefit of his Right Heirs should cease and the same was thereby revoked and appointed the Trustees in those deeds to convey the said premisses to the Lady Frances his Wife and the Earl of
dying of Thomas without Issue whereby the Earldom shall descend this shall go over to Charles that cannot be for it hath no Freehold to support it and so it s a Term in gross further there cannot by the Rules of Law or Equity be a Remainder for years of a Term limited after an Estate Tail neither directly nor upon Contingency as in Burges's Case but the Law will allow a remainder directly upon an Estate for life so likewise upon a Contingency if that were to happen during the Continuance of the particular Estate But this case is a step further and not to be allowed they relied chiefly upon Child and Bayles Case which was put thus by Chief Baron Mountague a Devise by A. of a Term to William his Eldest Son and his Assigns and if he die without Issue then to Thomas his youngest Son It was Judged in the Exchequer Chamber to be a void remainder because thereby a perpetuity would ensue though it was argued in that case that it was given upon a Contingency to the younger Son which would soon be Determined and end in a short time Chief Baron Mountague put this for Law a Term may be limited to one and the Heirs Males of his Body upon a Contingency to happen first with Limitation over if that Contingency do not happen it is a good Limitation as if a Term be limited to the Wife for Life and then to the Eldest Son if he over-live his Mother and the Heirs Males of his Body the remainder over to a younger Son if the Eldest Son dye in the life of the Mother the Limitation to the second Son may be good but if there be an Instant Estate Tail created of a Term tho there be a Contingency as to the expectation of him in remainder yet this is such a Total Disposition of a Term as after which no Limitation of a Term can be and so the Judges were of Opinion that the Plaintiff had no Right to the Term but the decree ought to be for the Defendant The Lord Chancellor Nottingham differed from the Judges and Decreed for the Plaintiff He put some steps or Preliminaries which he agreed with them and which were clear 1. That the Term in question though it were attendant on the Inheritance at first yet upon the hapning of the Contingency it s become a Term in gross 2. That the Trust of a Term in gross can be limited no otherwise in Equity than the Estate of a Term in gross can be limited in Law 3. The legal Estate of a Term for years whether it be a long or a short Term cannot be limited to any Man in Tail with the remainder over to another after his death without Issue this is a direct perpetuity 4. If a Term be limited to a Man and his Issue and if that Issue die without Issue the remainder over the Issue of that Issue takes no Estate and yet because the remainder over cannot take place till the Issue of that Issue fail that remainder is void too Reeves Case 5. If a Term be limited to a Man for his life and after to his First Second and Third Son in Tail Successively and for default of such Issue the remainder over though the Contingency never happen yet the remainder is void though there were never a Son born to him that looks like a perpetuity Sir William Buckhursts Case 6. One Case more and that is Burgesss Case A Term is limited to one for life with Contingent remainders to his Sons in Tail with remainder over to his Daughter though he had no Son yet because it was foreign and distant to expect a remainder after the death of a Son to be born without Issue that having a prospect of a perpetuity was adjudged void 7. If a Term be Devised or Trust of a Term limited to one for life with twenty remainders for life Successively and all the Persons in Esse at the time of such limitation these are all good remainders 8. A Term is Devised to one for 18. years after to C. his Eldest Son for life and then to the Eldest Issue Male of C. for life though C. had not any Issue Male at the time of the Devise or death of the Devisor but before the death of C. it s good being a Contingency that would speedily be worn out Cotton and Heaths Case for there may be a Possibility upon a Possibility and a Contingency upon a Contingency and in truth every Executory devise is so and therefore the contrary Rule given by Lord Popham in the Rector of Chedingtons Case is not Reason These things were agreed by all But the Point is The Trust of a term for 200 years is limited to Henry in Tail provided if Thomas die without Issue in the life of Henry so that the Earldom shall descend upon Henry then to go to Charles in Tail and whether this be a Limitation to Charles in Tail is the Question My Lord Chancellor conceived it a good Limitation as a springing Trust to arise upon a Contingency and which is not of a remote or long Consideration As for the Legal Reasons of this Opinion they were these 1. Many Men have no Estates but what consist in Leases for years Now it would be absurd to say That he who has no other Estate than what consists in Leases for years should be uncapable to provide for the Contingencies of his own Family though they are directly in his immediate prospect he shall not make provisions for Wife and Children upon Marriage 2. It was the Opinion of the Lord Chief Justice Pemberton That had it been thus Penned it had been good If Thomas die without Issue Male living Henry so that the Earldom descend upon Henry then the 200 years limited to him and his Issue shall cease but then a new Term of 200 years shall arise and be limited to the same Trustees for the benefit of Charles in Tail Now what difference is there why a man may not raise a new springing Trust upon the same Term as well as a new springing Term upon the same Trust It is true in 6 Ed. 6. in the time of Lord Chancellor Rich all the Judges delivered their Opinion If a Term of years be devised to one provided if Devisee die living I. S. then to go to I. S. is absolutely void But in 19 Eliz. Dier fo 277 328. it was held by the Judges to be a good Remainder Executory Remainder and that was the first time that an Executory Remainder of a Term was held to be good As for Child and Bayles Case the Case is truly Reported by Crook A Term of 70 years is devised to Dorothy for life then to William and his Assigns all the rest of the Term provided that if William die without Issue living at the time of his death then to Thomas which is in effect the present Case but there was more in it William had the whole Term to him and his
Assigns Dorothy was Executrix and granted the Lease to William And the Record goes further After the death of Thomas without Issue it was to go the Daughter which was a plain affectation of a Perpetuity but however this Case is contradicted by other Resolutions Cotton and Heath before cited and Wood and Sanders in this Court which was this a long Lease is limited and declared thus To the Father for 60 years if he lived so long then to the Mother for 60 years if she lived so long then to John and his Executors if he survived his Father and Mother and if he died in their life time having Issue then to his Issue but if he die without Issue living the Father or Mother then the Remainder to Edward in Tail John died without Issue in the life time of the Father and Mother It was Resolved by Lord Keeper Bridgman assisted by two Judges That the Remainder to Edward was good The whole Term had vested in John if he had survived yet the Contingency never hapning and so wearing out in the compass of two Lives in being the Remainder over to Edward might well be limited upon it Object Where will you stop if not at Child and Bayles Case Resp Every where where there is apparent danger of a Perpetuity but so is not this Case The Equitable Reasons were 1. It was Prudence in the Earl to take care that when the Honour descended upon Henry a little better support should be given to Charles who was the next Man and trod upon the Heels of the Inheritance 2. It was very probable and almost morally certain that Thomas would die without Issue he being not of a good state of Body or Mind and while such they were circumspect that he should not Marry 3. It s an hard thing for a Son to tell his Father That the provision he has made for his younger Brothers is void in Law But it is much harder for him to tell him so in Chancery for there no Conveyance is ever to be set aside where it can be supported by a reasonable Construction The Law doth in many Cases allow of a future Contingent Estate to be Limited where it will not allow a present Remainder to be Limited A man hath an Estate Limited to him his Heirs and Assigns this is a Fee-simple but if he die without Issue living I.S. or in such a short time to I. D. this is good Though it be impossible to limit a Remainder of a Fee upon a Fee yet it s not impossible to limit a Contingent Fee upon a Fee Pell and Brownes Case If a Lease comes to be limited in Tail the Law allows not a present Remainder to be limited thereupon yet it will allow a future Estate arising upon a Contingency only and that to wear out in a short time The Limitation in Wood and Sanders Case is after an express Entail and yet Adjudged good because it was a Remainder upon a Contingency that was to happen during two Lives which was but a short Contingency and the Law might very well expect the hapning of it But our Case is stronger because it is only during one life It was decreed the Plaintiff should enjoy this Barony for the residue of the Term and the Defendants to make him a Conveyance accordingly and to account with the Plaintiff for the Profits received since the death of Duke Thomas and which they or any of them might have received without wilful default The Duke of Norfolk exhibited a Bill of Review in Chancery to which Charles Howard put in a Plea and Demurrer which was Argued before Lord Keeper North and he Over-ruled the said Plea and Demurrer and Reverst the Lord Chancellors Decree But afterwards this Decree was Reverst in Parliament and the first Decree affirmed in behalf of Charles Howard Turner contra Crane 34 Car. 2. fo 668. THat Robert Newell and his Wife Copyhold Mortgage for 220 l. paid by the Plaintiffs Wife Susan then a Widow did Surrender the Copyhold Premisses to the use of the said Susan and her Heirs on condition that the said Robert Newell and his Wife 's paying to the said Susan her Executors and Assigns 230 l. in March next after then the Mortgage to be void and the Mony not being paid the said Susan was admitted to the premisses and afterwards Marryed the Plaintiff and they received the profits of the premisses and afterwards Susan died Intestate no ways indebted leaving Susan her Daughter by the Plaintiff her Heir an Infant and the said Susan the Infant was admitted by the Plaintiff her Guardian Admittance of Guardian as Heir to Susan the Mother who received the profits and died leaving the Defendant Jane Crane her Aunt as Heir and she was admitted and the Plaintiff on Susan the Daughters death took Administration of Susan the Mothers Estate and claims the Mortgaged Lands insisting That though the Defendant Jane was Heir to Susan the Daughter who was Heir to Susan the Mother yet the premisses being a Mortgage belonged to him as Administrator to Susan the Mother This Court would consider of this Case and of Cases of Mortgages in Fee where no Covenant is made for the payment of the Mortgage-Mony to the Executor or Administrator and no debts owing by the Mortgagee whether the Heir or Administrator of the Mortgagee shall have the Lands This Court upon reading Presidents declared The Heir of the Mortgagee in Fee there being no debts owing shall have the Redemption Mony and I not the Administrator That he was fully satisfied that the Plaintiff as Administrator to the said Susan ought not to have the mortgaged premisses from the Defendant Jane Crane the Heir of the Heir of the said Mortgagee but the said Jane ought to enjoy the same and dismist the Plaintiffs Bill Dowse contra Percivall 34 Car. 2. fo 186. THe Plaintiffs Father John Dowse Lessee purchased the Inheritance in Trustees Names and dies Intestate This Lease shall attend the Inheritance took a Lease of the City and afterwards purchased the Inheritance in Trustees Names for him and his Heirs and the said Dowse died Intestate the Defendant his Wife as Administratrix claims this Lease to belong to his personal Estate This Court decreed it to attend the Inheritance Magistr ' c. Vniversit ' Colleg ' in Oxon ' contra Foxcroft 34 Car. 2. fo 522. THe Bill is to Revive a former Decree made against the Defendants Father whereby the said Defendants Father was decreed to pay the Plaintiff 2000 l. and Interest To which the Defendant demurs A Decree and Sequestration against one who dies this shall not be Revived against his Heir or Real Estate though it were for Mony payable on the behalf of a Charity for that the said Defendants Father against whom the said Decree and a Sequestration is had is dead whereupon the Sequestration being granted purely for his Contempt of a Decree which was for a personal duty only
he died about six Weeks after to whom the Lady is Administratrix The Judges Opinion upon both these Cases WE have heard the Case of Massingberd and Ash Remainders of a Term successively in a Deed of Trust being limited and confined to fall within 21 years are good and no Perpetuities referred to us Argued by Council on both sides both upon the Deed of Trust and upon the Will and are all of Opinion That the whole weight of the Case rests upon the Deed of Trust and that the Will though it have some Clauses in it which if they were substantive of themselves would alter the case yet as it is penned and the Clauses all bound up with relation to the Deed of Trust it does not And we are likewise of Opinion That all the Remainders and Contingencies in the Deed of Trust being limited and confined to fall within the compass of 21 years are good and that therefore the remainder of the Term ought to be decreed to the Plaintiff Sir William Massingberd Febr. 17. 1684. Thomas Jones Creswell Levings J. Charlton T. Street The Lord Keeper declared himself of the same Opinion with the Judges That the Remainder of the said Terms after the death of the said Dame Elizabeth were good Remainders in Law and that the Plaintiff Sir William ought to enjoy the premisses for the remainder of the said Terms accordingly and decreed the same Nodes contra Batle 35 Car. 2. fo 106. THe Bill is That the Defendant may redeem or be fore closed and the Defendant being served with a Subpoena refuseth to appear and sits out all process of Contempt to a Serjeant at Arms retorned and cannot be apprehended The Plaintiff prays the Bill may be taken pro Confesso This Court declared In regard the Defendant hath not appeared The Bill not to be taken pro Confesso if the Defendant hath not appear'd but a Sequestration shall issue out against him this Court could not decree the Bill pro Confesso but ordered a Sequestration against his real and personal Estate until he cleared his Contempt Moor contra Hart 35 Car. 2. fo 60. THat a Treaty of Marriage was had between the Plaintiff and Ann his Wife Marriage Agreement the Defendants Daughter who promised to give with her 4000 l. but when the Defendant perceived them to be mutually ingaged began to recede from his Promise which the Plaintiff finding a Letter was wrote to the Defendant by a Friend of the Plaintiffs desiring him to be plain and ascertain what Portion he would give the Plaintiff with his Daughter and then the Defendant agreed to give 1500 l. down and 500 l. more at his death if she should have Issue and both Sums to be charged on his Estate at Creaton and Wapingham which Agreement was in Writing and signed by the Defendant and he did in Answer to the said former Letter express and declare as much under his Hand and thereupon the Marriage took effect But the Defendant pretended he never made any such Agreement and that the Plaintiff married his Daughter without his Consent but confesseth he received a Letter from one Reeve a Friend of the Plaintiffs wherein he desired the Defendant to be clear and say what he would lay down upon the Nail in marriage with his Daughter to the Plaintiff and what he would secure to be paid at his death and that he sent a Letter to Reeve in Answer wherein he acknowledg'd the Plaintiffs deserts exceeded his ability and with all plainness acquainted him he would give her 1500 l. in present out of his Estate at Creaton and 500 l. more at his death if she should have Issue then living but that afterwards Mr. Reeves sent a Letter in Answer to that whereby the Treaty and Proposals are absolutely waved and the Defendant never further Treated but the Marriage was had without his Consent and without any Agreement in Writing or Settlement and therefore he insists upon the Act for prevention of Frauds and Perjuries To which the Plaintiff insists The last Letter sent by Reeve was no manner of the Treaty or Proposal in the former Letters in Jan. 1680. This Court Letters under ones Hand shall amount to a good Agreement within the Statute of Frauds and Perjuries on reading the several Letters sent by Reeve to the Defendant in the behalf of the Plaintiff and the Defendants Answer thereunto This Court is fully satisfied the Plaintiff upon his Marriage became well intituled to the 1500 l. agreed by the Defendant under his own Hand to be paid to the Plaintiff as his Wives Portion out of his Estate at Creaton and decreed accordingly Bradbury contra Ducem Bucks 36 Car. 2. fo 401. THis Court did declare Interest upon Interest decreed That the Plaintiffs ought to have Interest for their Interest Mony from time to time when it is a stated Sum. Dom ' Pawlet contra Dom ' Pawlet 36 Car. 2. fo 516. This is upon a Case stated viz. THat John Trust for payment of Debts Maintenance of younger Children and raising Portions late Lord Pawlet on Marriage with the Plaintiff the Lady Susanna his second Wife and of her Portion setled a Joynture of 1000 l. per Annum on her and afterwards having 3 Children viz. the Defendant the now Lord Pawlet and Susanna and Vere Pawlet by Deed conveyed Lands to Trustees and their Heirs viz. to the use of the said Lord Pawlet for life charged with Portions for his Daughters by the Lady Essex Pawlet his former Wife and after the death of the said Lord Pawlet to the use of Francis Pawlet and others for 500 years on Trust that they should after the commencement of the 500 years out of the Profits or by Leases or other lawful ways out of the premisses allow the now Defendant Maintenance and also sufficient to pay all the late Lord Pawlets debts and maintenance for the younger Children and after that to raise Mony to pay the younger Childrens Portions in such manner and time as the said Lord Pawlet should by any Writing or last Will appoint and in default of such limitation or appointment the Trustees to raise 4000 l. a piece for every younger Son and 4000 l. a piece for every Daughter of the said Lord Pawlet by the Lady Sasanna to be paid at their Ages or day of Marriages if such Portions could conveniently be raised and if not then so soon after as the same could be with this further That every younger Son and Daughter should have Maintenance till Portions paid and after all the said Sums raised the Remainder of the 500 years to be surrendred to whom the immediate Reversion belonged which is now the Defendant That the late Lord Pawlet by Will in 1677. and published at the same time when the said Deed was executed gave to his said two Daughters Susanna and Vere Pawlet 4000 l. for their respective Portions to be paid them as the said Deed directed and made the
not to be shaken yet nevertheless the Case being new and great referred it to the Opinion and Determination of the Lord Chancellor His Lordship held the Demurrer good and Order to stand Skinner contra Kilby 2 Jac. 2. fo 72. THe Bill is to have the benefit of a Bequest by the Will of Robert Kilby The Will being viz. Will. If my Son Richard Kilby should behave himself towardly and undertake the payment of my debts and Legacies then he to have all my Lands in Tredington The Son Devisee of Lands upon good behaviour for his mis-behaviour decreedagainst him if he behave himself otherwise or to neglect to pay my debts and Legacies as aforesaid then he to have but 5 s. and left it to the direction of his Executrix Jane Kilby the Defendants Mother and also Mother of the said Richard Kilby the Plaintiffs Father That the said Richard waving the said Devise made to him and neglecting the payment of his said Fathers debts and Legacies the said Jane undertok and paid the same being intituled by the said Will and by her Will Bequeathed to the said Defendant the premisses This Court upon reading the said Will of Robert Kilby the Testator which being as is aforesaid declared that according to the said Will the said Jane was well intituled to the premisses and that the Defendant ought to enjoy the same and could not relieve the Plaintiff but dismiss the Bill Nayler contra Strode 2 Jac. 2. fo 473. THe Surrender of a Copyhold Estate by an Infant of 4 or 5 years of Age allowed of by this Court Surrender of a Copyhold by an Infant of 5 years of Age. Yet the Lord of the Mannor insisted he never heard of any admittance in that Mannor at such an Age. Cloberry contra Lymonds 2 Jac. 2. fo 1069. LAnds extended in 1 Car. 1. and held in Extent and a Bill exhibited to redeem and being not redeemed the Bill dismist in 16 Car. Upon the buying the Equity of Redemption of Lands in Extent Account decreed from the time of the purchase 1. and afterwards he who had the Extent by virtue of the said dismission sold the said premisses to the Defendant But the Plaintiff having since bought the Equity of Redemption seeks a Redemption This Court notwithstanding the dismission and length of time ordered an account from the time of the Purchase but no account from any time before but the profits to go against the Interest to that time Newte contra Foot 2 Jac. 2. fo 695. THe Defendant insists Depositions suppressed because the Sollicitors Clerk in the Cause did write as a Clerk in the Execution of the Commission That the Depositions in this Cause are irregulerly taken and ought to be suppressed for that Mr. Samuel Vnderwood who was Clerk to Mr. Edward Gibbon Sollicitor for the Plaintiff in this Cause did write as Clerk in Execution of the said Commission under the said Commissioners and the said Vnderwood confessed the same and solicited the Matter for which Reasons the Defendants Commissioners refused to joyn in the Execution of the said Commission it being of great mischief for Solicitors or their Clerks to be privy to the taking of Depositions in such Causes as they Solicite This Court was well satisfied that the said Depositions were for the Reasons aforesaid irregularly taken and doth order that the same be hereby suppressed and that the Six Clerks Certificate for the regular taking of the Depositions be discharged Griffith al' contra Jones al' 2 Jac. 2. fo 353. THat Peter Griffith being seised in Fee of Lands Will. and possest of a personal Estate of 20000 l. in 1681. by his Will devised to his Brother the Plaintiff 200 l. to the Plaintiff Shonnet Price and Dorothy Parry the Daughters of his Sister Shonnet 150 l. apeice c. and to the Sons and Daughters of his Brother and Sisters not mentioned by name in his Will 10000 l. equally between them which said Legacy doth belong to the Plaintiffs John Lloyd and Alice Williams being the only Nephew and Neece not named in the Will and the overplus of his Estate he obliged the Executors should pay and and distribute amongst his Brothers and Sisters Children and Grandchildren and the rest of his poor Kindred according to his Executors discretions and the Plaintiff claims the overplus of the said Estate as being all the Brothers and Sisters Children and Grandchildren of the Testator and poor Kindred that can take by the Will The Defendants the Executors insisted That they conceive the distributing and apportioning the said surplus is left to them by the express words of the Will and that they ought to distinguish the Grandchildren of the Testators Brothers and Sisters whose Fathers and Mothers were dead before the Testator and had no particular Legacies by the Will and consider the Condition and number of Children of the said Kindred and give most to those that most want and conceived that such of the Plaintiffs as have particular Legacies ought to have but a small one if any part of the surplus and the Defendants crave the directions of this Court how far the words Poor Kindred shall Extend to what Degree of Relation This Court decreed Legacies to Poor Kindred how far to be extended That the surplus of the said Estate be distributed to and amongst the Testators Brothers and Sisters Children and Grandchildren and as to the rest of the poor Kindred according to the Act of Parliament for distributing Intestates Estates and no further and to be distributed in such shares and propotions as the Executors in their discretions should think fit and whereas there are debts owing to the Testators Estate and the debtors poor but propose to pay as far as they are able This Court decreed Poor Debtors to the Testator who left a great Estate the Executors left at liberty to compound any debt That the Executors be at liberty to compound any debt owing to the said Estate if they should think fit Creditors on Judgments and Bonds decreed Creditors on Judgment and Bonds decreed to redeem Mortgages to redeem Mortgages towards satisfaction of their debts fo 843. Bernry contra Pitt 2 Jac. 2. fo 373. THe Bill is That the Plaintiffs Father being only Tenant for life of a real Estate which after his death would come to the Plaintiff and the Plaintiffs Father allowing the Plaintiff but a small subsistance and the Plaintiff borrowed of the Defendant 1000 l. in 1675 and entred into Judgment of 5000 l. Defezanced for the payment of 2500 l. after the Plaintiffs Fathers death which hapned in 1679. The Defendant insists That he lent the Plaintiff 1000 l for which the Plaintiff gave Bond and Warrant of Attorny to confess Judgment to the Defendant of 5000 l. which was Defezanced that in case the Plaintiff should out-live his Father and in one Month after his Fathers death pay the Defendant 2500 l. and if the Plaintiff
his debts being 100 l. and says that the 1000 l. was given to be divided as afore said and as the Defendant William should think fit and that Peter dying before any distribution was made to him thereof the Defendant William ought not to distribute the same amongst the other four and no part of it ought to come to the Plaintiff This Court declared That no part of the 1000 l. doth belong to the Plaintiff in Right of the said Peter or otherwise and dismist the Bill Nance contra Coke 29 Car. 2. fo 64. THe Plaintiff seeks Redemption of a Mortgage made the 17th of Jac. 1. Release pleaded against the Redemption of a Mortgage and allowed the Defendant pleaded a Release of the Mortgagors Interest in Anno 1620. This Court after so long time and such Release could not admit the Plaintiff to Redeem though the premisses were Mortgaged for 376 l. and worth now to be sold 1500 l. Burgrave contra Whitwick al' 29 Car. 2. fo 173. THat George Whitwick deceased Will. having Issue George his only Son and Elizabeth and Martha the Wife of the Defendant Curtis by Will bequeathed to the said Elizabeth 600 l. to be paid unto her as therein after is expressed and to the said Martha 600 l. in like manner and gave the residue of his Personal Estate to the said George his Son to be employed as should be afterwards expressed in his Will and also gave to his said Son and his Heirs all Lands whatsoever and Willed That if either of his said Children should dye in their Minority that the surviving should be Heirs to the deceased in equal portions but if all should die without Issue then he gave his Lands to George the Son of Humfrey Whitwick with Remainders over and ordered the said Portions in convenient time to be laid out in Lands for his said Children and till Lands purchased the Executors to retain the Mony so long as the Overseers should see good at 5 l. per Cent. and made the Defendant Humfrey Whitwick Executor That George the Son died Intestate under Age unmarried that no Land hath been purchased by the Executor That Martha attained 21. and received her Portion and also the Moiety of the residue of the Personal Estate bequeathed to George the Son but refuses to pay Elizabeth her 600 l. and Moiety of the said residue of the Personal Estate she being yet a Minor under 21. yet she is married to the other Plaintiff Burgrave who can give a Discharge The Defendant insiststs According to the meaning of the Will he ought not to pay Elizabeth till the Age of 21 years for in case she die before the said Martha ought to have the other Moiety of the residue of the Personal Estate and he is advised there is a possibility of Survivorship of the Plaintiff Elizabeths Portion and Moiety of the residuary of the Personal Estate and that if he should pay it to the said Elizabeth and she should die before 21 the Defendant Martha may compel him to pay it again But the Plaintiff insists That the Moiety of the residuary Personal Estate devised to the said George not being laid out in Lands falls to the Plaintiff within the words of that Clause in the Will that gives the residue by equal portions to the surviving and so no further Survivorship intended This Court was of Opinion Residuary part of the Personal Estate not subject to any contingency of Survivorship but the Interest presently vested and declared the residuary part of the Personal Estate is not subject to any contingency of Survivorship but that the Interest of that presently vested in the Plaintiff upon the death of the said George the Son and ordered the Defendant the Executor to pay one Moiety of the residuary Personal Estate and in case Elizabeth die before 21 then the 600 l. to be paid to Martha which in the mean time is to be kept in the Defendants hands Morgan contra Scudamore 29 Car. 2. fo 658. THe Plaintiffs being Customary Tenants of the Mannor Renewing Copies upon reasonable Fines in which Mannor the Tenants hold Estates by Copy to them and their Heirs by the words Sibi Suis for 99 years yielding a Rent paying a Herriot and doing of Suit and Service c. And by the Custom of the said Mannor the Lords upon Expiration of every Estate ought to renew upon reasonable Fines and which said Estates by the Custom of the Mannour do descend from Heir to Heir and their Estates to be renewed for reasonable Fines they being expired which the Lords of the Mannor refuse demanding more than the Fee for a Fine whereas two years value was as much as ever was or ought to be given or demanded The Defendant the Lord of the said Mannor insists that there was such a Custom to renew for 99 years but the Fines always at the will of the Lord and such as the Plaintiffs could agree with him for there being no benefit to come to the Lord during the 99 years so the question is whether the Lord shall be at liberty to set what Fine he please or be restreined therein by this Court it appearing that the Fines are Arbitrary The Plaintiffs insist that though the Fines are Arbitrary yet the same are by Law supposed to be reasonable and that in some Cases the Law had adjudged above two years value to be an unreasonable Fine and the Defendant had demanded 10 and 12 years value for a Fine which is very extravagant and the will of the Lord in this Case ought to be limited The Defendant insists that the Plaintiffs Estates and Terms for 99 years expired many years before the Bill Exhibited some of them 30 and others 11 or 12 years since in the life-time of the Defendants Father and some of the Plaintiffs Estates have been granted to others and Fines levied thereon and that the Tenants of the said Mannor do not during the 99 years pay any Fines upon death or alteration so nothing is due to the Lord for 99 years together so that the Defendant insists nine or ten years purchase is a reasonable Custom This Court declared The Lord of a Mannor limited to two years value for a Fine the will of the Lord ought to be limited and that the Plaintiffs onpayment of two years value shall be admitted to their said Estates and hold the same against the Defendant and all claiming under him and that the Plaintiffs shall renew such Estates within one year after the Expiration of their Term in case they be of Age Tenants Decree to renew within one year after the Leases expired or within the four Seas at such time or otherwise within one year after such respective Tenant shall attain the Age of 21 or return from beyond the Seas or else such Tenant shall be for ever foreclosed of any help or benefit and and then the Lord is at liberty to dispose thereof Warwick contra
not having made an Appointment it ought to be taken for her Intention that the Plaintiff should have the Mony and therefore decreed the Defendants the Trustees to convey to the Plaintiff and deliver to him 1400 l. and the Securities for the 2000 l. Green contra Rooke 31 Car. 2. fo 351. THat Lawrence Rooke Devise Father to the Defendant Heyman Rooke and to the Plaintiff Mary being seised in Fee or Fee-tail or other Estate of Lands by Deed of the 26th of August 1650. granted the premisses to Edward Scot and others for 80 years if he so long lived and afterwards conveyed the sameon the 27th of the same Month unto Sir Henry Heyman and Peter Heyman and their Heirs for the term of his life and by Deed the 20th of October then next following and by a Recovery in pursuance thereof the said premisses were setled on the said Sir Henry and Peter Heyman and their Heirs for the life of the said Lawrence Remainder as to part to the use of Barbary Wife of the said Lawrence for her life for a Joynture and after as to part to the said Sir Henry and Peter Heyman for 99 years in Trust to raise 1000 l. for the portion of the eldest Daughter of the said Lawrence and then to the use of the first Son of the said Lawrence in Tail Male with the Remainder over That the said Lawrence and Barbara are dead and the Defendant Heyman Rooke is his first Son and the Plaintiff Mary is his eldest Daughter and the Portion of 1000 l. is due to her and the same being unpaid Peter Heyman the surviving Trustee assigned the term of 99 years to the Plaintiff Greene to enable him to raise the Mony and the Defendant Heyman Rooke hath mortgaged the same premisses to the other Defendants so the Question is Who hath the right or equity of Redemption and the Bill is also to have the Plaintiff Maries Portion paid or the equity of Redemption foreclosed The Defendant Heyman Rooke by Plea insisted That George Rooke his Grandfather by Will in 1647. devised the premisses unto Lawrence Rooke his eldest Son and Father to the Defendant Heyman Rooke for life only Remainder to the first second third and fourth Sons of the said Lawrence in Tail Remainder to John Browne and others for their lives in Trust for the better securing and preservation of the several Remainders limited unto the several Sons of the said Lawrence Rooke with Remainders over That the said George Rooke died without revoking or altering the said uses limited in his Will and so Lawrence Rooke could not by the said Deeds or Recovery bar or cut off the Remainder limited in and by the said Will in regard the said Browne and the other Trustees for preserving of the contingent Remainders were living since 1650. in which year the term of 99 years was created This Court declared Devise to Father for life Remainder to the first Son c. Remainder to Trustees for 99 years to support the Remainders it s a good term to support the Remainders notwithstanding the same is limited and inserted after the limitation to the first Son it being in the case of a Will That the term limited to the Trustees in the Will for their Lives for the preservation of the contingent Remainders to the several Sons of the said Lawrence Rooke was a good Term and a State to support the said contingent Remainders notwithstanding the same is limited to the said Trustees and inserted in the said Will after the limitation to the first and other Sons of Lawrence Rooke in Tail Male for the same being in the Will and the intent of the Testator plainly appearing so in the Will they held the said Plea and Demurrer to be good and so dismist the Plaintiffs Bill Trethervy contra Hoblin 26 Car. 2. fo 114. THe Plaintiff being a Purchaser of the premisses Bill to discover a Title calls the Defendant to discover his Title who insists on a long Lease of a 1000 years which was found by Verdict for the Defendant And the Defendant insists for Cost Costs for that the Plaintiffs Suit in this Court was causlesly and vexatiously brought by the Plaintiff The Plaintiff insists 〈◊〉 That he being not able to try the validity of the said Lease at Law during the life of Oliver one of the Defendant This Court is satisfied Suit for discovery and to preserve Testimonies and the Plaintiff to pay no Costs that the Plaintiff had good ground to bring this Suit for a discovery and relief and to preserve the testimony of his Witnesses it falling out to be a severe Case upon the Plaintiff so no reason for the Plaintiff to pay any Cost either at Law or in this Court Boughton contra Butter 32 Car. 2. fo 379. THis Cause was referred to Sergeant Rainsford to certifie touching the Inclosure whether advantagious and whether the Parties had consented thereunto who had drawn up a Certificate Certificate ordered to to be filed though not delivered in the life of the Certifier all written with his own Hand but he dying before he had declared the same It was prayed by the Plaintiff that the said Certificate might be filed and taken to be authentick as if he had delivered the same to either party The Defendant insisted That the said Certificate had no date and that the Sergeant never intended to deliver the same This Court Ordered the said Certificate to be filed notwithstanding the Objections made thereto by the Defendant Tucker contra Searle 31 Car. 2. fo 423. THat John Bassano the Plaintiff Frances Father by deed 20 July 1640. Marriage Settlement in consideration of a Marriage between him and Elizabeth the Plaintiff Frances Mother and a Marriage Portion Covenanted to stand seized of Lands to the use of the said John and Elizabeth for their lives and after to the first Son of the said John and Elizabeth and so to the second third and other Sons and the Heirs of their Bodies remainder to the right Heirs of the said John Bassano the Elder for ever on Condition and Limitation that if the said John Bassano should have Issue Female and not Issue Male by Elizabeth then his Right Heirs to pay the first and second Daughters of the said John by the said Elizabeth 300 l. a piece to be chargeable on the said Lands and if more than two Daghters then the said Lands for the full value of them to be sold should equally be divided amongst such Daughters that the said Bassano had no Issue Male by Elizabeth but had Issue Female viz. Elizabeth their Eldest Daughter the Plaintiff Frances their Second and another Elizabeth their youngest that Elizabeth the Eldest died in the life of her Father and Mother and that at the death of John the Father there being only the Plaintiff Frances living but the said Elizabeth the Mother being ensient with Elizabeth the youngest Daughter of the said John Bassano