Selected quad for the lemma: judgement_n

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judgement_n	case_n	court_n	plaintiff_n	3,427	5	9.9986	5	true

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

Respect for him than to dispute such trivial Matters and for any Leases or Contracts they come within the Rule of Purchases and so the Consideration would preserve them Then they say Here is no Monument for the Duke a Person of so great Quality but that may be made good out of the personal Estate I am sure it is no Objection in point of Law But the last Thing they urge is If there be no Relief in this Case you put the greatest Indignity and Reproach upon the Duke that can be imagined That he should call Mr. Monk Cousin send for him out of Holland to leave his Will with him in the Will give him so great a Share of his Estate desire the King to make him a Baron and appoint his Son to be educated as one that was to make no small Figure in the World that he should send for my Lord Chief-Justice Pollexfen to draw this Will make three parts of it deliver one to the Dutchess of Newcastle another to Colonel Monk and carry a third with him into Jamaica and there take publick notice of it and after all this Expectation raised in Mr. Monk of a Fortune run himself into the Charges of an expensive but what he knew would be a fruitless Suit This say they is an unconceivable Dishonour to the Duke to be represented as one that would prevaricate so with the King and the World and play with the Misfortunes of his Kinsman and the rather because the Duke was a plain sincere hearted Man and in all this did but pursue his real Intentions of Kindness to Mr. Monk and his Children Truly methinks they have just as much to say on the other side What shall those many Declarations of Kindness to the Earl before this Deed in this Deed and after this Deed by Letters and other things signify his Care of my Lord Lansdown as one he was most concerned next to my Lord of Bath himself his Petitioning the King to confer on him the Title of Duke of Albemarle in case of his failing of Issue-Male and all this to signify nothing besides the known Kindred the apparent Obligations and Merit of my Lord of Bath sure if all this be considered the Duke's Honour is as much concerned on this side as on the other to approve himself sincere in all these Solemn Transactions Would he own him as his nearest Kinsman and the most deserving of his Blood and all the while have a secret purpose in the last Act of his Life to make a Will by which he would set aside all he had profess'd to do for him and by leaving this Deed and Will with him leave only so much in his hands as should put him into a chargeable Suit for nothing Therefore upon the whole I think there is greater reason to conclude that the Duke did not certainly mean to do this last Act as what he would have to stand against so much formerly done the other way But I rather think the Evidence is strong to perswade any one that the making of this last Will was to satisfie another purpose and make his own Condition easie at home But my Opinion as to the Judicial part of this Case which I thus happen to be of is the stronger in me because of the Authority of two Cases which I take to be express in Point and those are the Cases of Wynne and Roberts and Fry and Porter In the Case of Wynne and Roberts there was Proof of a very great surprize upon the Man whereby he was induced to make a Will and to disinherit his Child of whom he was before very fond and who was married into a very Honorable Family and to break a Settlement solemnly made before all this Matter was Charged in the Bill and proved But not withstanding this the Court declared they would give no Relief but if they could expect any they must go to Law and at last it was ended only by a Bill in Parliament The Court said Try it at Law a Will or no Will and do not expect the Chancery should make Mens Wills or set them aside if legally made especially then not upon bare Conjectures and Suppositions concerning a Man's intentions to relieve against a Solemn Act and Title found at Law In Fry and Porter's Case one of the great Reasons why the Court denied Relief there was that it was a Controversy between two voluntary Conveyances and there that Side that had the Advantage at Law ought to keep it and it was without Precedent to relieve in any such Case So say I in this Case we have no Precedent of Relief in any such as this now before Us We must not say this Court is unlimited unbounded by any Rules it is no doubt limited by Precedents and Practices of former times and it is dangerous to extend its Authority further If therefore I err in my Opinion in this Case I err with these Precedents on my Side and because I have never an one to guide me the other way the Desendants are in Possession of a Verdict Judgment and Title at Law and I can see no ground of Equity to relieve the Plaintiffs against them Then it being very late the Court put off the delivering of the Lord Chief Justice Holt's Opinion and the Lord Keeper's Decree till another Day Die Veneris 23 Decemb. 1693. In the Court of Chancery in Westminster-Hall Com. Mountague al. adv Com. Bathon al. e contra Lord-Chief-Justice HOLT IN this Case wherein the Earl of Mountague and the Dutchess of Albemarle and others are Plaintiffs and my Lord of Bath and others Defendants I shall open the Case very shortly as it stands upon the two Wills and upon the Deeds There was a Will made in the Year 1675 by Christopher Duke of Albemarle wherein there is a Disposition of several parts of his Estate upon his dying without Issue to several Persons but the main Part and Bulk of it is given to my Lord of Bath And in that Will there is mention made of a particular Esteem and Affection which the Duke bare to my Lord of Bath that he was the nearest of his Kinsmen by his Father's side and that he also was indebted to him for many great Acts of Friendship and Offices of Kindness performed to him and his Father Then there is in that Will also an express Desire that the Title of Duke of Albemarle by the King's Favour might be conferred upon the Earl of Bath and that the eldest Son of the Earl of Bath and so the eldest Son of the Family successively should be called Lord Monk so that the Names of Albemarle and Monk may with the King's Favour remain with his Estate in the Posterity and Family of my Lord of Bath in memory of the late Duke his Father and himself The Estate being so disposed of by the Will of 75 there are two Deeds made in the Year 1681 a Lease and a Release The Release doth recite

to be set aside by this Will I have nothing further to consider in this Case nor are we to make Presumptions and then to make Inferences from thence We are to judge upon the fact as it appears in the Depositions which are plain and clear and upon these we are to determine our Opinions and nothing else that is dark and that we cannot come at further than by conjecture There have been said in the Cause which I omit on purpose because I would mention only those that are most material Upon the whole matter I am of Opinion there ought to be no Relief in this Case against my Lord of Bath and those that Claim by the Deed of 81. LORD KEEPER I Shall first take Notice how these Causes stand in Court and who are the Parties in Judgment before the Court. Here are Three Bills One in which the Dutchess of Albemarle was Plaintiff and since the Inter-Marriage my Lord of Mountague is also Plaintiff against my Lord of Bath and others Defendants and this Bill sets out the law Duke of Albemarle's Marriage-Settlement and his Will of 87 with the Solemnity both of preparing and executing it and doth complain that the Earl of Bath sets up another Will and a Deed in 75 and 81 whereby he seeks to frustrate the Disposition of the Duke's Estate by the Will of 87. And the Bill doth alledge That if any such Deed was ever executed by the Duke which they have reason to doubt and do not admit they believe the same was imposed upon the Duke by surprize and not fairly obtained and by fraud were concealed from the Duke and ought to be set aside in Equity tho' the power of Revocation in the said Deed were not strictly pursued because his intention appears to revoke it and dispose of the Estate otherwise by making the Will in 87. And if it should not be set aside then the Dutchess ought to have the Lands limited to her by that Deed and the Rent-Charge of 2000 l. a year over and besides the Joynture settled upon the Marriage and confirmed by the Will of 75. And the Will of 87 ought to stand good as to the Personal Estate and Legacies therein and so prayeth to be protected in the Enjoyment of the Personal Estate and Specifick Legacies given to the Dutchess discharged of the Duke's Debts There is another Bill brought by Christopher and Henry Monk which complains of my Lord of Bath and the others setting up this Will of 75 and Deed of 81 and I think in the same Words or to be sure to the same effect with the other Bill and prays that both Will and Deed may be set aside and the Plaintiffs may enjoy the Benefit and Estate given them by the Will of 87. Then there is a Third Bill of my Lord of Bath Mr. Greenville and Sir Walter Clarges in which they set out the Will of 75 and the Deed of 81 and the continuance and constancy of the Duke's Friendship and Trust to the Time of his Death and complain that the Dutchess and other Defendants set up the Will in 1687. and do pretend that amounts in Equity to a Revocation of the Deed of 81 and his Bill prayeth that the Personal Estate may be applyed to pay the Duke's Debts in discharge of the Real Estate which they pray may be confirmed to the Plaintiffs in that Suit and a discovery of the Writings about the Real Estate and that they may be brought into Court and delivered up to the use of the Plaintiffs These Causes were first heard before the Lords Commissioners so long ago as the 8th of July 1691. then was there a Decree made That the Personal Estate should be accounted for and applied for the payment of the Debts but before the Court would deliver any final Judgment as to the Real Estate they ordered a Tryal at Law to be had in an Ejectment wherein the Dutchess and Mr. Christopher Monk were to be Lessors of the Plaintiffs and the Earl of Bath Mr. Greenvill and Sir Walter Clarges to be Defendants to try the Title to the Real Estate And the Plaintiffs were only to insist upon the Will of 87. and the Deed of 81. so as that the Defendants Right upon the said Will and Deed might be fairly tryed And all Exhibits were to be left with the Master three weeks before tile Tryal for either side to inspect take Abstracts and Copies of as they should think fit According to this Order in the Michaelmas-Term after there was a Tryal at the King's-Bench-Bar and upon that Tryal a Verdict past for the Defendants in the Ejectment the Earl of Bath c. upon the Will of 75. and Deed of 81. After the Tryal these Causes came to be heard again before the Lords Commissioners about a year and a half since at that time there was no complaint made of the Verdict nor any Motion for a new Tryal But after the Councel had been heard several days the Court took time to consider of their Judgment and before Judgment one of these Causes abated by the Marriage of my Lord Mountague and the Dutchess and by that and other Accidents the Cause hath been delayed till the late Hearing before the Court assisted by my Lords the Judges who have delivered their Opinions And now the Causes stand for the Opinion of the Court upon what appears in the Pleadings and Proofs and what has been so largely insisted upon on either side Upon which the Verdict being at Law for the Defendants I must take it as my Lords the Judges have already declared not only that these Deeds of Lease and Release of the 15th and 16th of July 1681. were duly sealed and executed by the late Duke of Albemarle but also that they stand still in force and unrevoked at Law for if they had not been so the Verdict could not have been as it was for the Defendant Therefore as that must be taken for granted that these are good Deeds in Law the only Matter at present for the consideration of the Court is Whether upon the debate of this Cause there be sufficient Ground in Equity for this Court to interpose in the Case so as to set aside these Deeds as not good in Equity or revoked by the Will of 87. or no And I shall as to the Matter of the Question conclude my Opinion the same way with my Lords the Judges that have delivered theirs before And with respect to this Matter I shall here consider who the Parties are in Judgment before the Court and what hath been alledged as Reasons and Grounds to induce the Court to set aside this Deed in Equity Here is no Purchaser in the case no Creditor no Child unprovided for but all the Parties claim by voluntary conveyances on the one side and the other so that at least they stand equal or if there be any circumstances as to the Persons that have any weight it is on the part of my Lord

and that Mind continued till 81 and it appears by Letters as well before as since that Duke Christopher intrusted him in all his Affairs of Consequence acted not in any thing but with his assistance continually made use of his Friendship at Court to the time of his Death when he was dissatisfied with any of his Servants my Lord of Bath was the Man that must settle the matter when he was to Purchase my Lord Bath must buy for him when he was to sell my Lord of Bath was to transact the matter when he wanted Money my Lord was to procure it for him when he was in danger of losing Money my Lord is applied unto to prevent it All this appears by the several Letters that have been read and produced When he was gone to Jamaica and any Request at Court my Lord's Interest was that which he relied upon my Lord of Bath was the single Trustee to be applied to chiefly in what concerned the Estate the Keys of the Evidence-Room were to be deposited with him as being principally Concerned if he should miscarry Now it must be confessed a Man may do as much as all this comes to and make use of another Man's Friendship and not design to give him his Estate when he had once firmly setled it so and repeated his Assurance of Kindness and continued to make Profession of Kindness all along to the time of his Death and went on to make use of his Service because he thought he might freely command the Service of one who expected to have such Advantages from him yet then I do not see but that it must be admitted that he did deliberately design to impose upon my Lord of Bath or if he did not he did intend to impose upon my Lady Dutchess Now be it which it will I do think he is not to be excused in reference to the Point of Honour as to the Request made to the King for the Earl of Bath and in pursuance of Duke George his desire who engaged the late King to promise under his Sign Manual and he hath made the same kind of Request for Mr. Monk Now upon the whole Matter whether this VVill of 1687. was made to free him from some Importunities in his Family is a great Question There are some proofs in the Case that greatly look that way It is plain he did not execute it for several Months after it was prepared and drawn and when it was published it was obtained with great Importunity against his Inclinations at that Time and there doth not appear any Intention that it should revoke this Settlement but on the contrary it should seem he did not intend so for there are no VVitnesses called to the VVill but the same that came with Stringer from Newcastle House to that purpose But whether he did intend it should take Effect as to the Personal Estate only or to delude my Lord of Bath which way his Honour is best saved is not at all to our purpose to consider upon the Case before us in Judgment Though I must say take it one VVay or the other he seems to blame and to have dealt in some sort double The next thing insisted upon is That this Deed is revoked in Equity of this VVill and though the Power be not pursued in all the Circumstances yet his Intention appearing to make this different disposition of his Estate a Court of Equity should supply that defect Now I take it for granted that a Power of Revocation shall not be carried further in a Court of Equity than the Law will carry it The Law hath been liberal in expounding Powers of Revocation favourably and where the Law expounds a thing according to an equitable Construction there is no reason for Equity to extend it further Where there appear to be other equitable Considerations it may have another Judgment but if it stands without any mixture of other equitable Considerations I think it would be very hard to break through a Settlement especially so solemnly made that he thought fit to restrain himself from altering it without the Assistance of so many Noble Persons whenever he would make use of the Power thereby reserved to him I say it would be a very strange thing for a Court of Equity without the mixture of any other Considerations to assist another voluntary Conveyance against this The Case of Arundell and Philpot is a full Authority in this Case and it has been so often repeated that I need not mention it any further As to what was insisted upon by some about the Revocation being compleated as to the number of VVitnesses by the publication in Jamaica and the impossibility of having any Peers there I must confess had the Duke in Jamaica had an express deliberate Intention and Purpose to revoke and done any Acts to testify it and gone as far in pursuance of the Circumstances as his Condition in those parts would admit that might have come in within that Foundation of Equity to wit Accident But I think there is no ground of Proof of any such Intention or Action For the Proof amounts to no more than this The Duke to prevent any troublesom Applications to him shut up himself in his Room and those that came to him were to come in at the Window And a strong Box in which his Papers were standing under the Window by frequent trading upon it he had a Suspicion that there had been some Attempts to force and open it whereupon he calls for the Box to open it and out of it takes several Papers which he read or gave to Dr. Sloan to read several Letters as I remember and afterwards he took up a sealed Pacquet and said to the Doctor This is my Will and put it down again Is this any manner of proof in the World that this Act was done animo testandi Much less is it any proof that there was any notice taken at this time of this Settlement or that he would avoid it I would say something to that other Point that this being a Deed made to confirm and corroborate the Will of 75 is but Ancillary to the Will and depends upon it and is to stand or fall with it and upon the Revocation of that Will did fall with it This is an Objection wholly inconsistent with the other Arguments that are used against this Deed that it was by Surprize For by those Arguments they would destroy the Deed as inconsistent with the Will but now the Argument is turned the other way But my Lord Chief Justice Holt has so fully and clearly answered that matter that I shall not need to trouble you with saying any more in it The Cases cited about it are in no sort applicable to this Case The last thing insisted upon was supposing the Deed to stand good yet there being a general Trust raised in it to pay the Legacies in the Will my Lord of Bath was no more than a Trustee and the Duke continued Master of the Estate and he who had such a general Power to charge the Land might do it to the full Value and then consequently might dispose of the Land too Now this Point of Trust is the proper Subject of a Court of Equity but to expound a Deed which is made on purpose to prevent a Descent upon the Heir and then to make a general resulting Trust to let the Heir in is such a Construction as will apparently contradict it self and the Deed. But that will fall out to be a Point that comes to be considered hereafter how far this may be a Trust in my Lord of Bath to answer Legacies or Debts in case the Personal Estate should fall short it is not properly considerable now The only Point that was spoken to by the Counsel and left for the Judgment of the Court was this whether in this Case here were sufficient Matter for a Court of Equity to interpose so far as to set aside or impeach this Deed of 81. Now as to that Matter I think I have the Concurrence of my Lords the Judges in it and I am of Opinion that there doth not appear sufficient Ground upon this Case for a Court of Equity to do any such thing Therefore I declare my Judgment That as far as my Lord Mountague and my Lady Dutchess and Mr. Monk their Bills pray that the Court will interpose to set aside this Deed so far their Bills ought to dismiss'd As to any other Matters that arise in the Case I suppose there will be time taken to speak to them but this is the only Matter in Judgment before us at present FINIS

Head of Objections That this Deed is a Deed attendant upon the Will of 1675 and so revocable in its one nature as a Will would be altho it contained in it no Power of Revocation This was very warmly insisted upon by the Counsel of Mr. Monk I confess there is such a thing as a revocable Deed attendant upon a Will which is revocable that is where a Man doth suffer a common Recovery and makes a Deed subject to his last Will and Testament such or such an Use may be declared by Indenture under Hand and Seal as intended at that time of the Recovery But this Indenture after it hath declared that Use being founded upon an Assurance that was always subject to Uses declared in his last Will that Will being always changeable the Deed may be always changeable And so is the Case in Dyer 314. 6. And the Reason is given in my Lord of Ormond's Case in Hobart 349. by the Opinion of two Judges against one because the Foundation which is his last Will is always revocable But such an Indenture to declare Uses is revocable but a Feofment or a Lease and Release to Uses referring to a Will or made to confirm a Will that that should be revocable there is no Colour nor any Authority of Law for it The fourth Head is That there is an implied Trust that the Duke might charge this Estate to the full Value therefore in Equity he might dispose of the Land This Objection doth arise upon a variance supposed between the ingrossed Deed and the Paper-draught For it should seem that one of the Sheets in the Paper-draught is cut just where this Trust is declared and so they would presume it a general Trust which would subject the whole Estate to the Duke's disposal But as to this Matter it is sworn by Thompson who ingrossed the Deed that he ingrossed it by the Paper not cut and did ingross it truly according to the Draught and he was believed by the Jury so to have done Therefore I suppose it was cut since and if it were the Question is by whom it was cut Truly I think it not worth the trouble of enquiring after that but it is most probable it was not cut by those to whose disadvantage it would turn to cut it But here doth arise a considerable Objection By the Will of 75 there are 20000 l. Legacies given and here is a Trust that doth subject this Estate to the Legacies of that Will of 1675 is revoked by the Will of 1687. Shall then the Earl of Bath hold this Estate free and discharged of any Legacies by the last Will I must confess this was objected on one side but not debated on the other side because they that were of Counsel for the Earl of Bath thought it did not concern this Question now in debate That they said might be a Question another Time between my Lord of Bath and any Persons that may come here to have any Legacies given them by the Will of 1687 if the Personal Estate will not answer I cannot say positively but they may be payable out of this Trust though I give no Opinion in the Matter it not having been debated and so I have not considered it But sure the consequence of that if it should be so would not be what this Head of Arguments I am upon would infer That if the Duke might charge the Estate with Legacies therefore he might dispose of it for he hath bound up himself by this Proviso not to dispose of it but under such and such Terms And that brings me to the last Head Whether this Will of the Duke of Albemarle made in 1687 and so solemnly done be a Revocation in Equity though it do not strictly pursue the Circumstances of the Power I know not any Rule more clear in our Law-Books than this that all the Circumstances prescribed and required in a Power of Revocation must be observed to make it a good and effectual Revocation So is Scroops Case so is the Case of Kibbett and Lee. There is indeed a favourable Judgment to be given in expounding Powers but both those Cases still agree that all the Circumstances must be strictly observed It may be said then they must be observed in Law but in a Court of Equity it makes another Case For when a Man hath a Power over an Estate those Circumstances are only a Guard upon himself that he may not be surprized into a sudden disposition of it But when deliberately and solemnly he hath done an Act whereby he disposeth of this Estate but there wants some little Ceremony or Circumstance such as the not tendring 12 d. or the like a Court of Equity ought to supply such a Defect to support his solemn Intention to dispose of it For plain it is he is not surprized into this Act and so the Reason for those Circumstances does fail and they need not be strictly observed This way of Arguing may seem specious in a Court of Equity I confess but really I think I am able to give a very plain Answer to it and that from the Nature of Powers of Revocation It is certain no Conveyance at the Common Law could have a Power of Revocation annexed to it As a Feoffment and Livery of Seisin and that because the Law would not admit such an Absurdity that a Man should give an Estate absolutely to another but yet reserve a Power to recal it from him at his Pleasure It is such a repugnancy as the Common Law will not permit But a Man might have done this at Common Law he might have annex'd a Condition to his Feofment that if he tendred 12 d. to the Feoffee or his Heirs he might enter upon the Estate so that the Estate which was Devested out of him by the Livery of Seisin might have been revested by a performance of the Condition and Reentry So it stood at Common-Law But after the 27th of H. 8. for transferring Uses into Possession Uses became more pliable than Conveyances at Common-Law wherein this Matter and then Powers of Revocation first came in use and fashion Not but that it is as repugnant to a Conveyance after the Statute as it was before for certainly it is repugnant to give an Estate away and yet have a general Power over that Estate But a Power of Revocation was let in as a Condition and would work as a Condition but whereas the performance of a Condition at Common-Law would not work a revesting of the Estate without a Reentry now the performance or execution of the Power doth transfer the Estate to the new Uses or revest the Estate in him that had the Power without any Reentry But still there is now a necessity of the Powers being performed as there was of the Conditions being performed at Common-Law for it is in the nature of a Condition and no more So is Inglefield's Case 7 Co. 39. There was a voluntary Conveyance made with a

he has such a Power for Paiment of his Debts and the Circumstances of the Power are not exactly observed there shall be Relief in Equity for the sake of the Matter Paiment of Debts is a most conscientious thing and fit for a Court of Conscince to take care of and see performed And providing for Children is a thing of the same Nature they are look'd upon as Creditors and I think this is reasonable and the Precedents have all gone that way The Statute of 33 Hen. 8 which gives a Man Power to devise Lands by Will in Writing recites it as reasonable that a Man should dispose of his Estate to pay his Debts and provide for his Children but goeth no further Those were wise and prudent Considerations upon which the Law did enlarge a Man's Power of disposing of his Estate but there is nothing of either of these in this Case every one will say he is not a Man of good Conscience that will not pay his Debts or provide for his Children But will any Man say that my Lord Duke had not been a Man of good Conscience if he had not given this Estate to Mr. Monk or to my Lord of Bath either He might law●●lly and conscientiously give it to the one or the other but there is no Consideration of Equity appearing why he should be obliged to it or to take it from the one to give it to the other he might use his Liberty according circumstantiated his own Power Another Ground of Relief in Equity is Accident or an Impossibility of complying with the Circumstances when he hath a plain Intention to do it I agree it is so but then he must do all that he can As the Case that was put of a Man's being obliged to pay or tender Money at such a Place and he falls sick or lame or Bed-ridden that he cannot go thither and it is tendred by another by his Order or at another Place this being the Act of God I think it would be a good Performance of the Condition and that I think is the best Answer that can be given for the Decree in Popham's Case But now here when the Duke was informed of his Power or might have been and neglected all and performed nothing shall this Court supply these Neglects and Want of Performance sure they may as well supply all the rest that there should be no Hand no Seal and for ought I know no Will or Deed but only a Parole Declaration There is one thing that I should properly mention last under this Head they object it is not said That it should be in the Presence of six Witnesses altogether Now it was in the Presence of three Witnesses here in England and three more in Jamaica and so here are six Witnesses though not all at once and there was no Peer to be had as a Witness in Jamaica So there is an Accident rendring it impossible to have any such and therefore Equity will relieve against such an Impossibility I do agree if the Duke had gone about directly to make and publish his Will in Jamaica with an Intention declared to revoke this Deed and had had six Witnesses to this his Act and plain Intention there being no Peer to be had there it should have been a good Revocation as in the Case mentioned by the Counsel of Hibbett and Lee in my Lord Hobart 312. Indeed if the Power were limited to be executed in the Presence of three Subsidy-Men it is said in the Book that they must be averred to be Subsidy-Men But yet I take it now that old way of Subsidies is out of use three substantial Men that would have been Subsidy-Men if that were the present way of taxing it would be enough For none such would be had nor could there be any Peer in this Case that is put But to consider the Case and Proofs as to Jamaica what it amounts to I would fain know how it appears that it was the same Will that he executed at Sir Robert Clayton's the Duke only said Doctor this is my Will perhaps it was the same perhaps it was not But how comes his writing his Hand and Sealing in the Presence of three Witnesses and declaring it after to be his Will to make the most of it in the Presence of three more to be an Execution in the Presence of six Witnesses But beyond all this here is no Proof that he did intend to publish this as his Will it is only a private Saying of his on the by when he saw it among other Papers which then he shewed to Dr. Sloan He was not then solemnly making his Will or executing his Power he doth not so much as bid them take notice that he declared that to be his Will or any thing to make them remember it afterwards So that I take it it signifieth nothing as to this Matter I would trouble your Lordship no longer for I have been long enough already I am loth to meddle with the Cases and Precedents because that may take up too much of your time but because the Precedents have been brought me I must say something to them to shew that I have read them I will therefore open some of them such as I think come nearest the Case They say the Common Law goeth as far in relieving upon Cases of Powers of Revocations as appears by Hibbett's and Lee's Case that I mentioned but now where a Will is declared to be Writing So the Case of Thorne and Newman's Payment in another Place than that required in the Proviso in that Precedent it is recited that the Indorsement on the back was that the Money was paid according to the Proviso and no notice taken of the Place for upon the very reading of the Indorsement the Plaintiff was forced to be non-suit And afterwards that Matter was disclosed in Equity that it was in another Place than the Place in the Proviso but yet no Relief against his own Acceptance who was the Party privy The next Case is the Case of Guy and Dormer a Man sells his Estate with a Power to revoke by any Writing in express Words Now here they did not help the want of a Performance but the Judgment was the Performance was real Besides I cannot allow that to be any Argument that if the Law has gone as far as it may Equity should go further To me the Argument runs quite contrary Equity shall carry it no further for Equity should follow the Law There were several Precedents cited by the Plaintiffs Counsel but I confess upon Consideration of them very few do come up to the Case in question I shall take them as near as I can in order of time The first is that of Prince and Green 40 Eliz. There was a Power to make Leases intended to be reserved in a Conveyance by a Covenant to stand seized to Uses and a Lease is made accordingly as a Provision for a younger Son This Power was

not long after Mildmay's Case and the Case in Rolls Abd. 1 part lit Charge 378. But because says the Order neither the Party nor his Counsel did then know but such Power was warranted by Law though by late Judgments they were found to be void and so it was impossible to them to prevent it the Court did relieve in this Case to make good the Lease and it is there said that the elder Brother who would avoid the Lease was an unreasonable Man and this was a Provision for a younger Child which is not our Case either the Counsels Mistake of the Law nor a Provision for a younger Child The next is 44 o Eliz. the Case of Ferrers and Tanner A Man deviseth Annuities out of Lands to his half-Sisters and gives the Land to his half-Brother who makes over his Estate to prevent their being seized of the Rent in order to distrein and the Court after some time and upon sight of a Precedent did relieve the Devisees Here I would observe how difficult it was even for this Court to do that For they say the Heir that had the Land did promise the Devisor before his Death to perform the Will and that was a Deceit otherwise the Devisor might before his Death have done it by a Conveyance or granted the Land with a Condition to do such an Act or permit such a Thing And that he did consent afterwards before the Master of Chancery to do it I will not say but that this Court might have declared this Payment without these Circumstances nor that these might not make the Case somewhat better Indeed in the short Print of the Case in Moor 626. pl. 859. there is no Reason but the Resolution only The next Case is in the Year 1655 the Case of Hamilton and Maxwel in this Court which in short was upon very good reason because it was a Provision for a younger Daughter and that is urged on all hands to be a good Ground of Equity and he declared that his elder Daughter was otherwise sufficiently provided for Another Case is that of Bowman and Yates and that is about a Covenant for levying a Fine for raising a Rent out of Lands which was indeed defective at Law but decreed in Equity to be paid and satisfied but if it be look'd into I think will not appear very pertinent to this Case it being only to support the Intention of an Agreement upon Marriage This was 12 o Car. 2. The next is the Case of Wallis and Grimes 19 Car. 2. which was this Sir Thomas Grimes the Grand-father makes a Conveyance in Trust for Paiment of five hundred Pounds to younger Children the Heir makes a Mortgage without notice and this Trust is endeavoured to be set up against the Mortgagee but the Court would not permit it But this comes not near our Case for a Mortgagee is in nature of a Purchaser Then 20 Car. 2. thence was Pitt and Potham's Case in the House of Lords There this Court did relieve because it was a plain Intent the Land should be sold and there was only a want of naming the Person that should sell and the Law would help that He that hath the Land shall do that Office and that was next door to a Provision for Children it being for a For the Case of Smith and Ashton besides the Answer my Brother Powell gave to it has also this flat Answer to be given that it was a Provision for Children that was the next Case in point of time Then comes the Case of Brisco and Peters 28 o Car. 2. I have as carefully as I can perused that Case but cannot really observe how it is made use of in our Case And it is very much to be considered that it is no Rule between two voluntary Conveyances how far a voluntary Conveyance shall be fraudulent against a Purchaser The next Case is that of Thwaytes and Dey which hath also had a full Answer given to it already It was doubted whether it was a Seal to it but the Court seemed satisfied with that and all the remaining Question was Whether a Man making a Conveyance and reserving a Power to make any other Estate could charge that Land with a Rent for a younger Child and the Court held he might and I think it a good Decree These are the Precedents that are brought on the Plaintiffs side there are but few brought on the Desendants part but two that I think are very material the one is that of Ward and Booth which hath been opened and applyed by my Brother Powell but I would observe from what he quoted out of the Decretal Order in that Case that it doth very extraordinarily declare the Limits of this Court's Proceedings in such Cases as these Here was not a formal Revocation but a clear and express Intention to revoke That doth not appear in the present Case There should be I agree Relief in such Circumstances if there were Fraud in the Party if there had been any Accident to render it impossible to execute the Power in all Formality But here is neither Fraud nor Accident and therefore by the Reasons and Rules in that Case there can be no Relief in this Case The other is Arundel and Philpot's Case and that is so very express an Authority for this Court 's leaving the Determination to Law that nothing can be more They there say where it is a voluntary Conveyance against a voluntary Conveyance you must try and decide the Matter at Law and it did fall out in that Case that there was no need of a Court of Equity to interpose for upon the Trial it did fall out to be proved that there was a due and legal Execution of the Power that there was a Tender of the Guinea As to the Matter of the General Trust I need say no more than this whether that would avail any thing upon a Controversy between the Legatees and my Lord of Bath I cannot tell but I am sure it is not material at all as this Case now stands Yet methinks as to a General Trust that it cannot be for that were to make the Duke use all this Solemnity in making this Settlement to no purpose and would render this Power of Revocation very useless and idle The use of this Power was because he had put the Estate out of him both in Law and Equity and so there could be no General Trust or Means to bring it back again without a due Execution of the Power There are two or three small Objections more that I shall but mention and conclude First they say several Grants will be avoided if there be no Relief against this Deed. That is some Leases some small Annuities to Servants and a Grant of 100 l. to the Duke's Natural-Son This is all Now whether it is not reasonable to imagine the Duke thought that the trusting the Earl with so great a part of his Estate he would have more Honour and

so you cannot imagine that the Duke was at all surprized therein but that when it was executed it was according to that design and purpose Next Sir Thomas Stringer who was the Duke's Counsel to Peruse and amend the Draught as appears by his own Hand sworn by his Son and his Man To imagine then that a Man should be surprized into the making of a Deed when his own constant Counsel doth Peruse and Amend the Draught and the Counsel he used particularly to advise with is by at the Execution and a Witness to it is to say a Man was surprized when he had the Advice of Counsel about it and they were at his Elbow at the Executing of it Now I must confess I am to seek and do not well know what is a Fraud in Equity that shall avoid a Deed which is a good Deed at Law The Case of Bodmin and Wynne and Roberts mentioned by my Lord Chief Justice and my Bother Powell that spake the last day this Cause came on is I think a Case of great Authority in a Court of Equity because it had a great Transaction both in this Court and in the House of Lords before it came to a Resolution and Result I shall put the Case in short as it was here in Court Mr. Roberts Son to the late Earl of Radnor married the Daughter of Mr. Bodmin Bodmin had made a Will and given his Lands to the Children of his Daughter in Tail and after this he makes another Will whereby he gave one part of that Estate to Mr. Wynne and another part to a remote Kinsman It did most plainly appear in the Depositions of this Case that this Will was obtained by great Fraud and Circumvention that is Wynne got into his Acquaintance by pretences of some little Offices of Friendship and Kindness he got him away from his Friends and Relations and during his Sickness he did by false Stories withdraw his Affection from his Daughter kept him in secret Places that no Friend might come at him and while he was so secreted and wrought upon was this last Will made whereby he gave his Estate away from his Child to a Stranger All these pieces of Practice were Apparent before the Court at the Hearing of this Cause which was heard by my Lord Clarendon Assisted by who all Unanimously Declared that this was a VVill obtained by Fraud and by Practice and that there was great Reason if they could to relieve against it But they searched Precedents and could find none that would come up to the Case Thereupon for difficulty there was Advice taken about it in the House of Lords and there upon Consideration was an Order made by way of Advice to the Lord Chancellor that he should proceed to do Justice to either Party though there were no Precedent found to govern the Judgment Afterwards this Cause came to be heard again 12 June 1666 when my Lord Chancellor being assisted by my Lord Chief Justice Bridgman my Lord Chief Baron Hales and Mr. Justice Raynsford did declare That there could be no Relief though it was said before it was apparently a VVill obtained by Fraud and this to the Prejudice of the Heir at Law who had never Offended or given him any Cause to Disinherit her So the VVill was dismissed but the Parties complaining in Parliament were Relieved by the Legislative Power by an Act of Parliament Now besides that there was Evidence of ill practice in that Case but in this I say I find none this is so great an Authority and does shew the wariness of a Court of Equity that I think none can be greater Equity would not relieve them but they were put to seek their Relief by a Law made on purpose But I will suppose now in this Case that when my Lord of Bath did understand the Kindness of Duke Christopher and knew of the Will of 75. and knowing the Incoastancy of the Duke's Temper and other Circumstances in the Family and the Revocableness of a Will should have applied himself to the Duke and told him ' It is true you have been so kind as by your Will to bequeath me a great part of your Estate but you may be prevailed with on a sudden or by some Artifice or other to alter this Will of yours and you may be surpriz'd into the doing of it pray will you make a more solemn Settlement to confirm this Kindness by a Deed And had prevailed to get him to do it Suppose I say he had done so tho I find no Evidence in this Case of any such thing suppose he had been employed in the whole transaction of such a Deed is this unlawful or is it any harm No it is very innocent he might lawfully do it and if he had opportunity he might prudently do it But I say I find not so much as that in this Case but this Deed was fairly obtained from the Duke whether it was by the advice desire or interposition of my Lord of Bath doth not appear or whether it were the Duke 's own voluntary Act though I think it is not material whether it was the one or the other But it hath been said That when Duke Christopher did design to alter his Will and for that purpose sent to my Lord of Bath to bring the Will of 75. which he had in his Custody my Lord of Bath should have told him of this Deed too And therefore the concealing of the Deed of 81. from D. Christopher is a kind of fraud and not making a discovery of it then he shall not now take advantage of this Slip and have the Estate by this Deed because if the Duke had considered the Proviso in the Deed he would have taken eftectual care to have had a good Revocation in all the Circumstances And that he did not so revoke it must be imputed to the concealment of this Deed from the Duke by the E. of Bath So was the Case of Mr. Clare at the Suit of the E. of Bedford which was opened the last Term. A Man that stands by and sees a Cheat which might have been prevented by his discovery shall not take advantage of his own wrong and profit by such concealment But doth it appear in this Case that my Lord of Bath knew to what purpose the Duke sent for his Will or how or in what manner he would alter the Settlement of his Estate Why must he be bound to take more notice of this Deed to the Duke than the Duke himself It was the Duke's own Act and not my Lord of Bath's and why should he give him notice of his own Act The Rule of Law when one is obliged to give notice to another is this When the thing lieth more in the Knowledg of the one than the other and he cannot come to the Knowledg but by his means But when one Man hath reason to know and doth as much as the other he is not bound to give notice