Kindid before distribution that share shall go to her or his Executors or Administrators and not to the Survivor next of Kindred to the first Intestate and before any actual distribution made vest an Interest in the respective persons appointed to have distribution of the surplus of his Estate as much as if it had been Bequeathed by Will and that if any one of them dye before distribution tho' within the year yet the part or share of such person so dying ought to go over to the Executors or Administrators of such party so dying and not to the Survivor or next of Kindred to the first Intestate and that the Lady Katherine was at her death well intituled to a share of her Brother Thomas Wentworths Estate as an Interest thereby vested in her notwithstanding she died within a year after the Intestate and before any distribution made and that the Lord Winchelsey as her Administrator is now well intituled therto and decreed a distribution and the Plaintiff the Lord Winchelsey shall have the Lady Katherines share and proportion of the said Thomas Wentworths Estate accordingly and the Plaintiff the Lady Elizabeth shall have a like share thereof with the Defendant Lister and John Wentworth 2 Jac. 2. so 315. The question being Whether the respective shares of the Plaintiff and Defendant Lister the said Lady Katherine and Elizabeth and the Defendant Lister being only of the half Blood to the Intestate and whether the Mony be vested in Lands or the Lands themselves should be accounted part of the personal Estate of the said Thomas Wentworth or not His Lordship ordered a Case to be made as to those two points The Case being viz That the said Thomas Wentworth died an Infant and unmarried leaving such Brother of the whole Blood and such Brother and Sisters of the half Blood as aforesaid who were his next of Kindred in equal degree and that upon his death a real Estate of near 2500 l. per Annum discended to the Defendant John Wentworth his Brother and Heir and that above 3000 l. of the profits of that Estate received in the Intestates life time by Dame Dorothy Norcliff and the said Trustees which belonged to him and his proper Monies were by them during his Non age and without any direction or power in their Trust but of their own Heads laid out in Purchases in Fee and Conveyances in their Names but in Trust for the said Intestates and his Heirs with this express Clause in the said Conveyances viz. in case-he at his full Age would accept the same at the Rate purchased the purchase being made with his Mony and for his advantage This Court as to the said two Points Half Blood to have an equal share with the whole Blood being assisted with Judges declared That the Plaintiff and the Defendant Lister ought each of them to have an equal share with the Defendant John Wentworth of the surplus of the personal Estate of the said Intestate and the distribution thereof ought to be made among them share and share alike and decreed accordingly And as to the other Point declared Trustees lay out the Monies of an Infant in Lands in Fee This shall be accounted part of his personal Estate he dying a Minor That the Monies laid out in the said Purchases ought to be taken and accounted for as part of the said personal Estate and distributed with the rest and decreed a Sale of the said purchased premisses and distribution thereof to be made as aforesaid Dom ' Middleton contra Middleton 1 Jac. 2. fo 793. THat Sir Thomas Middleton upon his Marriage with the Plaintiff Dame Charlotta Middleton Devise setled a great part of his Estate in Com' Flint and other Countries for her Joynture being seised in Fee of Lands in several Countries viz. Flint Denbigh and Merioneth and setled all his Estate on his first and other Sons on her Body in Tail Male and charged the same with several Terms of years for raising Portions for Daughters viz. If one Daughter and no Issue male 8000 l. and out of his personal Estate intending to make an addition to the Portion of the Plaintiff Charlotta his only Child and to increase the Plaintiff Dame Charlotta's Fortune and Joynture made his Will in 1678. and thereby reciting that whereas upon his Marriage-Settlement it was provided That if he should have a Daughter she was to have 6000 l. Portion as his Will was and he gave to his only Daughter Charlotta in case she should have no Son living at his death 10000 l. more as an addition to her Portion to make her up the same 16000 l. and for raising of the said portions and payment of his debts and Legacies he devised all his said Lands except his Lands limited for his Wives Joynture for her life unto Trustees and their Heirs in Trust to raise out of the Rents and profits of the said premisses the several Sums mentioned for his Daughters portion and the sums of Mony thereafter mentioned and Willed That till one half of the said Daughters portion should be raised his Daughter Charlotta to have 100 l. per Annum for the first four years and afterwards 200 l. per Annum till her moiety of her portion should be raised and after payment of the said portions maintenance debts and legacies he devised the said Trustees to stand seised of all the said premisses except before excepted to the use of the Heirs males of his Body with a Remainder to the Defendant Sir Richard Middleton his Brother for life without impeachment of Waste Remainder to his first Son and Heirs males of his Body with other Remainder to the Defendants Thomas Richard and Charles Middleton Remainder to the right Heirs of the said Thomas and he bequeathed to his said Daughter Charlotta the Plaintiff his Diamond-pendants which his Wife wore and bequeathed to his Wife Dame Charlotta after his death one Annuity of 200 l. per Annum for her life to be raised out of the profits of the said premisses and bequeathed the great Silver Candlesticks to go according to his Grandmothers Will to the Heirs of his Family with his Estate as an Heir Loom and bequeathed the use of all his Goods Stock and Housholdstuff to his Wife the Plaintiff Dame Charlotta for so long as she should live at Chirke Castle and from thence he left the same to his eldest Son and Heirs or such as should be Heir male of his Family according to the limitations aforesaid and his further Will was that his said Wife should have such proportion of the Goods Housholdstuff and Stock for the stocking and furnishing of Cardigan-House and Demean being part of her Joynture as should be judged fit by her Trustees that she might be supplied with Goods and Stock requisite for her House and left to whomsoever should be his Heir all his Stable of Horses and made the Plaintiff Dame Charlotta Executrix and died in 1683. leaving the
to be Re-heard before the Lord Keeper Bridgman who declared He saw no cause to alter the said former Decree and so confirmed it Brabant contra Perne 21 Car. 2. fo 146 344. DEpositions of Witnesses under the Hand of a Six-Clerk then in a Cause between Butt and Perne about Thirty years since the Plaintiff in this Cause prayed the same might be recorded the Record of the Original Depositions in that Cause being lost But the Defendant Pernes's Counsel insisted Copies of Depositions not to be recorded or exemplified it would be of dangerous consequence and president to suffer Copies of Depositions to be Recorded and used as Evidence in case of Title of Land there being no Cause in Court or parties to the said former Suit there being since the dismission of the said former Suit two Trials brought by the said Butt concerning the said things in question upon both which two Nonsuits passed against the said Butts Title the Witnesses which were examined in this Court being all then living and two Verdicts upon full Evidence on both sides and one other Verdict since 1664. hath been found for the Defendant's Title against the now Plaintiffs Title and some of the Witnesses at the said Trial have sworn otherwise than is expressed in those Copies of the Depositions which the Plaintiff would have now recorded and exemplified This Court would not allow the said Copies of the Depositions to be recorded or exemplified but they being before Ordered so to be by the Master of the Rolls it is Ordered they shall be vacated and made void and cancelled and taken off the File Alexander contra Alexander 21 Car. 2 fo 324. THe Suit is Assets to discover the Estate of Richard Alexander deceased which is come to the Defendants hands to satisfy a debt of 300 l. due to the Plaintiff from the said Richard Alexander The Defendant insisted that the Plaintiff ought not to have Relief in this Court in regard the Assets in the Defendants hands were legal Assets and nothing appeared but that the Plaintiff had her proper remedy at Law having not proved any thing more to be in the Defendants hands than was confessed in the Defendant's Answer But the Plaintiff insisted Bill to discover Affets That this Court hath directed Accounts in cases of this nature to avoid circuity of Action and further charge and trouble of Suits and that this Court being possest of the Cause and the parties at Issue on Proofs the same was as proper for this Court as at Common Law This Court ordered Presidents to be searched where this Court hath directed Accounts and given Relief in this Case and the Cause coming to be heard on the Presidents and Merits thereof and the Plaintiffs insisted that there is sufficient Assets of the said Richard Alexander come to the Defendants hands to satisfie the Plaintiffs debt with Overplus This Court decreed the Defendant to come to an Account for the Estate of one Blackhall unadministred Yate contra Hooke 21 Car. 2. fo 939. THat John Hele on the 23d Dec. 1654. Mortgage by demise and re-demise for 2000 l. mortgaged Longs Court and other Lands to Jasper Edwards his Executors Administrators and Assigns for 99 years and the said Edwards on the 25th of Dec. 1654. re-demised the same to the said John Hele for 98 years at a Pepper Corn Rent on Condition That if the said John Hele his Heirs Executors Administrators and Assigns did not pay to the said Jasper Edwards his Executors Administrators and Assigns 2150 l. at a certain day therein mentioned that then the said Re-demise to be void and Covenanted for him his Heirs Executors and Administrators to pay the same accordingly and in Hillary Term 1654. the said John Hele acknowledged a Judgment of 4000 l. to the said Jasper Edwards for the performance of the Covenants in the said Demise and Re-demise and after in 1656. the said John Hele for 500 l. mortgaged the said premisses to Joseph Jackson his Executors Administrators and Assigns reciting the said Mortgage to Jasper Edwards to have and to hold the said premisses to the said Joseph Jackson his Executors Administrators and Assigns for the residue of the said term demised to the said Jasper Edwards and to hold the Reversion to the said Joseph Jackson his Heirs and Assigns for the use of the said Joseph Jackson his Heirs and Assigns for ever on Condition That if the said John Hele his Executors c. paid to the said Jackson his Executors c. 515 l. in June next following then the said Deed of Mortgage to be void and the said John Hele to Re-enter as in his former Estate and the said John Hele Covenanted with the said Jackson his Heirs c. to pay the said 515 l. and for further confirmation granted to the said Jackson all his Equity of Redemption and afterwards the said Edwards and Hele for 2000 l. paid by Jackson to the said Edwards the said Edwards and Hele assigned the said premisses to Jackson with Condition or Proviso That if the said Hele his Heirs or Executors should pay to the said Jackson his Executors c. 2060 l. then the said demise from Hele to Edwards to be void and afterwards in 1657. Edwards assigned the said Judgment of 4000 l. to the said Jackson his Executors c. and the said Hele in 1660. died leaving the said Defendant Sir Thomas Hooke his Nephew and Heir And the said Jackson having made his Will and devised to his Daughter Sarah Wife of the Defendant Alford 2000 l. and to the said Joseph Jackson his Son 2000 l. with his Lands Tenements c. and to the Heirs of his Body and for want of Issue then the one half of his Lands so given to his Daughter Ann Yate and the other half to his Daughter Earle and the Issue of their Bodies equally and that in case his personal Estate fell short then every Legatee to abate in proportion to make it up the one half and the other half his Son Joseph should make good out of what he had bequeathed to him and made the Defendants Yate Earle and Aldworth Executors and if his Estate should amount to more than he had bestowed then that the said Joseph and Sarah should have the one half of it and his Son Yate and his Wife and his Son Earle and his Wife and what Child he should have living at his decease the other half Afterwards the said Joseph Jackson having in his Account accompted the said Mortgage Mony as part of his personal Estate in 1661 died leaving the said Joseph Jackson his Heir that no Entry had been made either by the Testator in his life time or by the said Joseph his Son and Heir upon the said mortgaged premisses but the said John Hele and Sir Thomas Hooke had received all the Rents and Profits So as the Question was Whether the said Mortgage Moneys are due and payable to the Heir or Executor
to the Administrator This Court declared And the benefit of the Trust belongs to the Executor or Administrator That both in Law and Equity the benefit of the Trust in such case doth belong to the Executor or Administrator but the Plaintiff Hunt having married the said Plaintiff Mary and claiming in right of her who is Administratrx to her former Husband Edward Palmer the Court thought it hard that by virtue of the said Administration she should carry away the Estate to her second Husband and thereby strip the Infant thereof from whose Father the Estate first moved and it not appearing that the Ecclesiastical Court when they granted the Administration took any Consideration for a distribution to be made for a provision for her this Court would consider of the Case and also of the Limitation and Consideration of the said Deed and deliver their Opinion This Court being assisted with the Judges it appearing that the Interest and Estate of the Terms and the Trust and Benefit thereof is by the death of the said Edward Palmer and his Mother come to the Plaintiff Mary for her life and there being but 30 years of the said Term to come and in regard the Ecclesiastical Court cannot make a distribution of the remainder of the Terms not knowing but that the said Mary may live till the Expiration thereof This Court directed the Defendant Jones to assign and transfer the premisses and all his Interest therein The Trustee decreed to assign to the Admistratrix c. in the said Terms to the Plaintiff or such as they should appoint Darrell contra Whitchot 20 Car. 2. fo 516. THe Plaintiff had a Trust in a Lease of a Coal Farm by Patent from the late King Trust which Lease was afterwards renewed by the King and other Trustees named therein and the Defendant being one of the Trustees insists he was a joynt Patentee for the valuable Consideration of 500 l. But the Plaintiff insists The Defendant comes in as the Plaintiffs Trustee and not to be subject to the same Trust in the New Lease as he was under the Old Lease But the Defendant insists The New Patent was to the New Trustees for Service done by them to this King and this Defendants 500 l. and this Defendant was not Trustee for the Plaintiff but was in for his own use which Patent this Defendant had pleaded and was allowed Yet the Plaintiff insisted An Old Trust continned upon a new Lease or Patent No Tenant Right against the King There was a continued Trust and the Defendant and the King declared he had a respect for the Old Tenants and the Defendant coming in under the Tenants Interests ought to be in Trust for the Plaintiffs and that tho' there be no Tenant Right against the King yet the King did consider the Tenants and that this Case is but the same with that where a Mortgage or Trustee renews a Church Lease Mortgagee or Trustee renewing a Church-Lease the Cestuy que Trust relieved Bill dismist in which Cases this Court had given Relief This Court with the Judges declared their Opinion That there was no ground at all to Relieve the Plaintiff and so dismissed his Bill Episcopus Sarum contra Nosworthy 23 Car. 2. fo 720. THis Case is touching a Rent of 67 l. per Annum reserved on a Lease of Lands made by John late Bishop of Exon to the Defendant Arrears of Rent and the Plaintiff by his Bill says the Defendant never paid the said Rent to the Plaintiff nor any part thereof during all the time he was Bishop of Exon which was for 6 years whereby a great Arrear is incurr'd and due to the Plaintiff from the Defendant for which the Plaintiff seeks Relief The Defendant insists That he directly tendered the said Rent to the Bishop while he was Bishop of Exon but he refused the same having an intention to impeach the said Defendants Estate and now the Plaintiff is Translated to another See and so he ought not in Law or Equity to demand the said Arrears but ought to be debarred from receiving the same by his refusal as aforesaid His Lordship was clear of Opinion that by Law the Plaintiff could not recover the said Arrears but how far the Plaintiff was relievable in Equity was the question and his Lordship ordered Presidents to be produced where there hath been a Just duty but no Legal remedy and ordered a Case to be stated It appearing that the Plaintiff Upon refusal to accept of Rent no Relief in Law or Equity for the Arrears while he was Bishop of Exon would not accept the said Rent his Lordship with Judges assisting him were clear of Opinion That there was no ground in Equity to give the Plaintiff any Relief and dismist the Bill Barthrop contra West 23 Car. 2. fo 744. THe Plaintiffs Suit is to have the benefit and equity of Redemption of Leases mortgaged Assets and other Trust Estates made liable for the payment of his debt being on Judgment for 2000 l. and to have a voluntary Deed of Trust set aside as against the Plaintiff This Court decreed the Plaintiff to have the Equity of Redemption to be liable Equity of Redemption Assets and as Assets to satisfie his said debt of 2000 l. and set aside the said voluntary deed of Trust and all Trust Estate and Surplus thereof after preceding debts paid to be Assets in Equity for the payment of the Plaintiff Hooker contra Arthur 23 Car. 2. fo 523. THe Defendant having recovered damages for breach of a Covenant in a Lease at Law but the Plaintiff insists That there is not so much damages due as the Defendant hath sworn in his Answer therefore the Plaintiff hopes this Court will reimburse him what is overpaid to the Defendant This Court declared they would not try nor ascertain the damages in this Cour The Court of Chancery will not try or ascertain damages recovered at Law but ordered the parties to Law on the Covenant Domina Kemp contra Kemp 23 Car. 2. This is on a Case stated viz. THat upon Articles of Agreement between Sir Robert Kemp and Thomas Steward Devise the Plaintiffs Father upon the Marriage of Sir Robert with the Plaintiff it was agreed 500 l. Marriage portion should be paid unto Sir Robert or his Executors and in consideration thereof the said Sir Robert should settle a Joynture of 200 l. per Annum on the Plaintiff his wife and if the said Sir Robert should dye before such Joynture settled then he was to have Lands chargeable with the Plaintiff Dower which should fully recompence the 200 l. and that Sir Robert by his last Will devised to the Plaintiff a Rent-charge of 200 l. for her life to be issued out of the Mannor of Spenishall and Lands thereto belonging and of certain Farms called Lininlts and Mortimore and Ravels and the Frywoods in full satisfaction of the said Articles and all
to the uses of the Articles To which the Defendant pleaded and demurred insisting the same was obtained on good Grounds and Reasons and farther insisted that since the said Dismission and before the Bill of Review the said Lamb had paid the said 1500 l. with other money unto the Defendant Atwood in Right of the said Ann his Wife who was Administratrix to Richard Kettleby and Ann the Daughter and that in consideration thereof the said Defendant Atwood had made a Settlement equivalent thereto for a Joynture for his said Wife and the Issue Male of their two Bodies with a provision for Daughters and that they had a Son then living and prayed the Judgment of this Court therein Which Plea and Demurrer was argued before the Lord Chancellor Jefferies which his Lordship over ruled and Ordered the Defendant to answer and he would hear the Cause ab origine at which hearing the Defendant Atwood and his Wife insisted That the Plaintiffs demand being only a Remote Remainder in Fee as Right Heir of the Husband was not so valuable in Interest as for a Court of Equity to Decree a purchase to be made for the Sale thereof and to take the money from the Wife and Administratrix to make that purchase when she ought to return the same as Assets or howsoever 1500 l. of the money was her own Portion and belongs to her by her Election within six Months and though according to the strict Letter of the Articles her Husband Richard Kettleby could not be said to die leaving no Issue because he had a Daughter living at the time of his death yet the Daughter dying within the six Months allotted for the Wives Election in case he had died leaving no Issue there was great equity to extend the Construction of that Clause of the Articles so far as to give her back her own 1500 l. portion The Plaintiff insisted That such Remainders in Fee have been considered by this Court and purchases decreed to be made and limited to such Right Heirs and that the 2000 l. in this Case cannot be Assets and in like Cases had been so adjudged at Common Law and in this Case the Articles have expresly provided that the money should go as the Land ought to have gone as if a purchase had been made therewith and as for the pretence of the said Defendant Anns electing 1500 l. her power of electing did never arise nor can her power be enlarged by this Court beyond the express words of the Articles nor is there reason for it in this case in regard the Articles provided that she shall have a Dower besides and the said Ann by virtue of her two Administrations hath a great personal Estate besides the 2000 l. in question This Court declared That the 2000 l. Money to be laid out in Land shall be apapplied as the Land should have been had it been purchased must go as the Lands ought to have gone in case a purchase had been made and yet the Wife had no power to elect 1500 l. part thereof because her Husband died leaving Issue and so her power of election never arose nor did any Circumstances appear to his Lordship in this Cause to induce him to inlarge the Construction of the Articles touching such power of electing beyond the express words thereof and decreed the said dismission to be reversed and that the Defendant Atwood and Ann his Wife do lay out the 2000 l. for purchasing Lands in possession in Fee simple to be setled according to the intent of the Articles And as for the Defendants the Trustees Trustees indempnified in regard they relyed upon the said dismission Signed and Inrolled for their indempnity in paying the said 2000 l. to the said Atwood at his Wife they are indempnified thereby Paggett contra Pagget 3 Jac. 2. fo 2. A Deed of Revocation Blanks filled up after the Sealing and Execution of a Deed yet good and a new Settlement made by that Deed tho' after the sealing and execution of the said Deed Blanks were filled up in the said Deed and the said Deed not read again to the party nor resealed and executed yet held a good Deed. Smith contra Fisher 3 Jac. 2. fo 641. THat Susan Beale by her Will in writing after several Legacies thereby given Money deviled to one for life with Limitations over good gave all the rest and residue of her Estate unbequeathed which consisted mostly in ready money to be put forth to Interest by her Executors and one half of the Interest to be paid to the Plaintiff Ann Cole her Sister during her life and the other half of the Interest unto the Plaintiff Ann Smith Daughter of the said Ann Cole and after her Mothers decease to have all the Interest during her life and if the said Ann Smith died without Issue of her Body then the principal of the Residue should be equally divided between the Defendants Mary Cleever and Elizabeth Farmer The Question is whether the devise over to the Defendant Clever and Farmer as aforesaid was a good devise This Court declared that the said Will was a good Will as to the limitations over to the Defendant Clever and Farmer and decreed the Executors to account accordingly Com' Dorsett contra Powle 3 Jac. 2. fo 148. 599. THis Case is Separate Maintenance where by the Deeds and Agreement before Marriage the Countess of Dorset had an absolute power to dispose of all the Personal Estate she had at the time of her Marriage with the Defendant and the proceed thereof and had by her Will and otherwise well disposed of and appointed the same to the Plaintiff and this Court Ordered the Defendant to confirm the same but as to the Rents and Profits of the Real Estate upon consideration of the several Clauses of the Deed relating to the said Estate and different penning of the same from the other Deeds that concerned the aforesaid personal Estate his Lordship declared that the said Countess had no power to dispose of the same By Indenture Tripertite Dated 28th of June 31 Car. 2. made between the Defendant Mr. Powle of the first part Sir Thomas Littleton and Charles Brett Esquire of the second part and the Countess of Dorsett on the third part reciting That the said Countess was seized in Fee of several Manor Lands Tenements and Hereditaments in England and reciting there was a Marriage intended between Mr. Powle and the Countess it was agreed that if the Marriage took effect the Countess should during the Coverture receive and dispose to her own use and at her own Will and Pleasure of all the Right and Title she had or claimed in the said Manour Lands and Premisses or in any other Manours or Lands of the Countess in England and of all the Rents and Profits thereof so as Mr. Powle his Executors Administrators and Assigns were not to intermeddle nor have any Benefit or Advantage thereby in Law or Equity but
should joyn with the Countess from time to time in the disposing thereof as she should appoint and the Defendant Mr. Powle thereby Covenanted that if the Marriage took effect Mr. Powle his Execuecutors or Administrators without the consent of the Countess in writing would not incumber the premisses or receive the Rents and Profits to their own use but from time to time would upon request Authorize such persons after receiving the same for the Countess's separate use as she should think fit so as he might have nothing to do therewith either in Law or Equity and that upon request he would make reasonable Leases of the premisses for such Considerations and Terms and under such Covenants as the Countess should think fit and gave such Acquittances for the Rents as should be requisite and convenient and at the Charges of the Countess and her said Trustees should Commence and Prosecute any Suit necessary for the Recovery of any part of her Estates and in defence of her Right thereto and that the said Countess might dispose of the premisses and receive the profits according to the true intent and meaning of the said Indenture Tripartite without the Interruption of Mr. Powle his Executors or any claiming under him or them And by another Indenture Tripartite 28 June 31 Car. 2. between the Countess of the first part Sir Thomas Littleton and Mr. Brett of the second part and Mr. Powle of the third part reciting that where as there was a Marriage to be had between Mr. Powle and the Countess and that by agreement she was to have and dispose to her own use and at her pleasure all her Jewels Plate Goods and Chattels both Real and Personal and the benefit thereof so as Mr. Powle his Executors or Administrators were not to intermeddle therewith the Countess by Mr. Powles consent did make a Bargain and Sale to the said Littleton and Brett of all her Jewels Plate Houshold-stuff Money Goods and Chattels Real and Personal upon Trust that they should dispose of the same and the proceed thereof to such persons and such uses as the Countess by any writing or by her Will should appoint so as Mr. Powle might not have any power or interest in Law or Equity to Sell Charge or Dispose of the same or any part thereof and for want of such appointment upon Trust to deliver the same or such part thereof as should be undisposed of by the said Countess to her Executors or Administrators and Mr. Powle by the last Deed covenanted not hinder the same and also that they should be free from all debts and ingagements of the said Powle That Mr. Powle and the Countess intermarried and afterwards the said Countess according to the said agreement and power as long as she lived disposed of all the Rents and profits of her real Estate and without Powle's intermedling That aftewards the said Trustees dying Mr. Powle by Deed with the said Countess transferrd the said Trust to other Trustees and also covenanted not to intermeddle but the said premisses to be solely in the power of the said Countess And it was agreed that the receipts of the Countess should be sufficient for the premisses or the preceed thereof notwithstanding tthe Coverture That the Countess by her self and the Trustees received the rents and profits of the premisses and disposed thereof without Mr. Powle That the said Countess by Deed of appointment in 1682 and by her Will in 1684 whereof she made the Plaintiff the Earl of Dorset her Son Executor to whom she after some Bequests and appointments to other persons Bequeathed and appointed all the rest of her personal Estate and also gave to him all her Monies and Rents and all Arrears of Rents in her Steward and Tenants Hands to all which the Plaintiff the Earl the said Countess being dead is intituled The Defendant Powle insists that as to the Rents and Profits of the Real Estate he claims the same and that he was so far from not intermedling therewith that he would not permit the Stewards to receive the Rents without Warrant from himself and that he passed all the Accounts thereaf and rectified them after the Countess had signed them This Court declared Feme Coverts disposing of her personal Estate according to Agreement at Marriage decreed good But not as to the Rents and Profits of her real Estate There was an absolute Power in the said Countess of disposing all her personal Estate that she was possest of at the time of her Marriage and the proceed thereof and that she had pursuant to such Power well disposed of the same and decreed the Defendant Powell to confirm the said Will and Appointment But as touching the rent and profits of the real Estate upon Consideration of several Clauses of the Deed relating to the said Estate and different Penning of the same from the other Deeds that concerned the personal Estate This Court declared the said Countess had no power to dispose of the same and all the Arrears thereof to be accounted for to the said Mr. Powle THE CASE OF The Duke of Albemarle With the Arguments thereon Com' Mountague al' contra Com' Bath al' 4 W. M. fo 90. THe Plaintiffs Revocation Will. after a Trial at Law directed out of this Court wherein the Point in Issue was Whether a Settlement was well made and executed and a Verdict for the Defendant that it was good and valid in Law They come into this Court to seek Relief upon the Equity reserved against the said voluntary Settlement wherein was a power of Revocation by virtue of a Will afterwards made the Question being Whether in Equity the said Will was a Revocation of the Deed tho' not strictly pursued The Bill was That Christopher Bill late Duke of Albemarle being seised of several Mannors Lands and Tenements in several Counties having married the Duke of Newcastle's Daughter and being possest of a considerable personal Estate frequently declared That he would make ample provision for the Dutchess who then had but 2000 l. per Annum Annuity setled on her for a Joynture by George Duke of Albemarle upon her Marriage with Duke Christopher for the support of her Dignity in case she survived him and that if he should have no Issue Male he would leave to her for her life at least 8000 l. per Annum out of his real Estate and in pursuance of such his Resolutions and likewise for the setling of the Remainder of his Lands upon his dying without Issue on Colonel Monk and others made and published his last Will in writing dated 1 July 1687. Whereby He gives to his Wife Coaches Jewels Plate c. and for advancing her living and support if he have no Issue Male and in full of her 2000 l. per Annum Rent-charge and Dower he gives her his Lands in Essex Stafford Lancaster York Lincoln Surrey Devon Hertford Middlesex Berks and Southampton for her life and if she accept
hundred Pounds and Damages Rowley contra Lancaster 21 Car. 2. fo 993. THat Matthew Lancaster bequeathed to John Creeke 100 l. thus viz. Will. 50 l. Devise of Mony to be paid at a Day to come Devisee dies before the Day yet payable to his Administrator in one Month after the Expiration of his Apprenticeship and the other 50 l. within one whole year after the Expiration of the said Apprenticeship and made the Defendant Executor That the Apprenticeship expired 29 Sept. 1664. but John Creeke dying before the Legacy was paid the Defendant refuses to pay it to the Plaintiff the Administrator of the said John Creeke The Defendant insists That he paid the 50 l. due within a Month after the Expiration of the Apprenticeship and that the said John Creeke died before the whole year after the Expiration of his Apprenticeship was expired and therefore the other 50 l. was not due to the Plaintiff This Court being assisted with Judges were clear of Opinion That the said Legacy was Debitum in praesenti solvend in futuro and decreed the said 50 l. to be paid to the Plaintiff with damages Fry contra Porter 21 Car. 2. fo 568. THat the Earl of Newport Will. deceased by his Will devised to the Plaintiff the Lady Ann the Messuage called Newport House with the Appurtenances thus viz I do give and bequeath unto the Lady Ann Countess of Newport my Dear Wife all that my House called Newport-House and all other my Tenements and Hereditaments whatsoever in Middlesex for her Life and after her decease I do give and bequeath the said House and all other my Tenements and Hereditaments as aforesaid to my Grandchild the Lady Ann Knowles the Daughter of Nicholas Earl of Banbury by the Lady Isabella my late Daughter and to the Heirs of her Body lawfully to be begotten Provided always and upon Condition that my said Grandchild the Lady Ann Knowles do marry with the consent of my said Wife and of Charles Earl of Warwick and Edward Earl of Manchester or the Major part of them And in case the said Lady Ann Knowles do and shall marry without the consent of my said Wife and the Major part of my Trustees aforesaid or shall happen to depart this Life without any Issue of her Body then I will and bequeath all the said premisses unto my Grandson George Porter Son of my deceased Daughter the Lady Ann late Wife of Thomas Porter Esq and to his Heirs for ever The Bill is to be Relieved against the Forfeiture of the said Estate for not performing the said Condition in the Will and Marrying against the consent of the Trustees and the Mother Yet the said Mother was told That the Plaintiff was about to marry and said nothing to the contrary whereupon the Plaintiff married and hath Issue The Plaintiff insisting That if any Error were committed in Marrying it was through Ignorance and not Obstinacy she the Plaintiff being very young and knew not of the Proviso or Condition in the said Will and it would be very unreasonable to make the happiness of the Plaintiff to depend upon the consent of Strangers in point of Marriage to put it into their power to keep her during her life either from Marrying or from her Estate and thereby make them Masters of her Affection or Fortune and to disinherit her and her Children But the Defendant insists That the Reason of inserting the said Proviso into the said Will was that the Plaintiff the Lady Ann might be disposed of in Marriage without disparagement and therefore that she should marry with the consent of the said Countess and the two Earls or the Major part of them and of that other Clause viz. That if she married without such Consent then he gave the said House and Premisses to the said Defendant George Porter the Infant and his Heirs for ever and that the said Lady Ann having Married a person very unequal to her Fortune and without such Consent as aforesaid having little or no Estate had made a wilful breach of the said Proviso or Condition in the said Grandfathers Will Lands devised on Condition the Devisee marry with consent and limitation over Devisee marries without Consent she shall not be relieved but the Land decreed to the remainder Man and the said George Porter claims the said House to him and his Heirs by virtue of the said Condition and Limitation over to him by the said Will the construction whereof is to be made out of the Will it self and not otherwise and the said Lady Ann had notice of the said Will before marriage there being discourse of it by the Trustees to her and so the Lady Ann ought not to be relieved against the said Forfeiture or Limitation aforesaid This Court with the Judges and on perusal of Presidents are clear of Opinion and fully satisfied That the Plaintiff ought not to be relieved against the said Forfeiture and that the same was such as ought not to be relieved in Equity and dismist the Plaintiffs Bill Vide this Case in Mod. Rep. p. 300. with Councels and Judges Arguments seriatim Shalmer contra Tresham 21 Car. 2. fo 560. THe Bill is to discover the Deeds of several Lands and whether they were not made in Trust and whether the Debt demanded by the Plaintiff were not mentioned in a Schedule thereunto annex'd The Defendant pleaded Bill to discover Settlements in Trust Plea That the Defendant is a Scrivener and had taken Oath not to discover the Secrets of his Clients Overruled That he was a Scrivener by Profession and hath taken the accustomed Oath that Scriveners do before they are made Free in London whereby he is obliged not to discover the Secrets of those persons business that employ him in that Trade without their leave and that he was employed by and assisted Sir John Langham in the purchasing of the said Lands and the Writings concerning the premisses he drew and hath the Keeping thereof by the said Sir Johns Direction and so ought not to discover the said Writings contrary to his Trust nor any thing relating to this Matter This Court declared That the Oath of a Scrivener doth not oblige from a discovery more than the Oath of any other Free man of London And if it had been in the case of a Counsellor at Law the said Plea had been Insufficient in this case and Overruled the Plea saving he is not to Answer to whom he paid the Purchase Mony Alford cont Pitt 21 Car. 2. fo 181. THe Plaintiffs Suit is Demurrer Remedy at Law Award to have the benefit of an Award To which the Defendant demurred and says That the Plaintiff ought to take his Remedy at Law This Court Overruled the Demurrer Langton al' contra Tracy Astrey 21 Car. 2. fo 376. THe Bill is to have the several Debts due to the Plaintiffs being Creditors of the Defendant Roberts paid The Case is viz. That Thomas
from this Defendant all her Lands and personal Estate which the Defendant had given her power to do and she died and for Non-payment of the said 400 l. per Annum the Defendant entred upon the Lands liable to the payment thereof and the Defendant hopes the said Decree shall not be Reversed The Plaintiff insists That the Title in Law in the Ladies Estate was in Trustees before her Marriage with the Defendant and so agreed to be continued without his intermedling therewith he bringing no Additional Estate to the said Lady and that there was no Fine levied to the Trustees or otherwise of her Estate of Inheritance Revocation of Uses and that the Uses upon the Recoveries were with power of Revocation in the Lady alone and that pursuant to such power by Deed 14 Car. 1. she Revoked the same and setled the same in Trust for such persons and their Heirs as she by her Will should appoint and that the said Tripartite Indenture and Decree did not discharge the Trust nor take notice of the Recoveries and that the said Lady in 1659. did appoint that her Trustees upon the said Recoveries shall convey part of her Land to the Plaintiff Solmes's Father and the Plaintiff Terrell and the rest to her Heir at Law and that in 1650. the said Land came first to be charged which was after the Ladies death and presently after there appeared Infancies which was the reason the said Decree was not sooner impeach'd This Court being assisted with the Judges Bill of Review dismist for that its a long time since the Decree was made and the Plaintiffs rested under it without any Complaint taking into Consideration the length of Time since the Decree was made and how long they were resting under it without any Complaint and that the Heirs have a benefit by the Ladies separate power of disposing who disposed accordingly by her Will. This Court with the Judges declared and are of Opinion that the said Decree grounded on the Tripartite Indenture 14 Car. 1. was and is a good Decree and ought to be performed and dismissed the Bill of Review White cont Ewens al' 22 Car. 2. fo 237. THis is upon an Appeal from a Decree Appeal from a Decree the Case being That Dame Ann Brett Relict of Sir Alex. Brett having a Joynture in the Manors and Lands of Whitstanton and Alexander her Son having on the Marriage with Elizabeth the Daughter of Sir William Kirkham agreed to settle 250 l. per Annum Joynture on the said Elizabeth but being disabled to do it by reason of Dame Anns Joynture he being seised only of 120 l. per Annum in Whitland and the Reversion of Yarkcombe the said Alexander agreed with the said Dame Ann That his Heirs Executors or Administrators should pay yearly after his death to Sir Humfry Lind and George Brett 250 l. per Annum during the said Dame Anns life if the said Elizabeth should so long live and thereupon the said Dame Ann Joyned with the said Alexander in a Grant of a Rent-charge of 250 l. per Annum out of Whitstanton for the Joyture of Elizabeth and Alexander 12 Jac. 1. demised Whitland and Tarkcombe to Lind and Brett the said Trustees for an hundred years to commence immediately after such time as the Heirs Executors or Administrators of Alexander should fail to pay the said 250 l. per Annum to the said Trustees during the life of the said Elizabeth That 15 Jac. 1. the said Alexander died and there being a failure of payment of the 250 l. by the Children Executors c. of the said Alexander to the said Elizabeth or to the Trustees for the use of the said Dame Ann the said Dame Ann paid the same out of Whitstanton and thereby the said Lease of 100 years of Whitlands and Yarkcombe did commence and thereupon she entred and received the Profits of Whitlands and the said Dame Ann paid the 250 l. during the life of the said Elizabeth That the said Alexander leaving three Children viz. Robert Mary and Ann wholly unprovided for and by Agreement the said Dame Ann was to pay 80 l. per Annum for the said Childrens Maintenance from the death of the said Elizabeth their Mother and that the said Dame Ann and her Trustees should assign the said Lease of 100 years to the said Children when at Age. That 17 Jac. 1. the said Lease was assigned to the Children to commence from 1636. that the said Dame Ann paid the said 80 l. per Annum maintenance which with 1750 l. she had paid to the said Elizabeth amounting to more than the Value of the said Lease of Whitlands whereof she received the Profits till about 1636. the said Mary one of the Children being dead and that the Defendant Ewens having married Ann the other Daughter they and the said Robert Brett the Son held the said premisses as Joynt-tenants by virtue of the said Lease but the said Robert Brett receiving more of the Profits than his share the Defendant Ewens and his Wife sued out a Writ of Partition in 1654. Partition a Moiety was delivered to the Defendant Ewens and Judgment given that the same should be held in severalty and the Defendant Ewens 12 Car. 2. for 132 l. Fine and 20 l. per Annum demised part thereof to the Defendant Nurse who assigned to the Defendant Rutland That the Plaintiff White insisting That Robert Brett acknowledged a Judgment to Richard White in 1644. extended the Defendants Moiety and brought an Ejectment and got a Verdict by surprize since which the Defendant brought an Action and obtained a Verdict whereupon the Plaintiff exhibited this Bill and hath stayed the Defendants by an Injunction To have an account of the Profits received and a Lease 12 Jac. 1. being 20 years since is contrary to the Limitations and Rules both at Law and Equity The Plaintiff insists He is now in the place of the said Robert but in a better condition his said Judgment under which he claims being long since Extended in the life time of the said Richard White and Robert Brett and before any Action brought and if the said Lease be satisfied the same ought to be set aside And to take off the length of Time insists That by a Decree made in the Court of Wards in 1640. the Defendants were to account with the said Robert Brett and the Plaintiffs Father Richard White really lent the said Mony for which the Judgment was got and in 1646. on Extent had a Moiety of Whitlands delivered and that notwithstanding the Lease to the three Children the Lady Ann had possession of Whitlands till 1637. The Defendants insist That the Lady Ann paid 1750 l. and 80 l. per Annum during the Minority of the Children which is more than the Value so look'd on her self an absolute Owner and disposed of the said Lease whereof the said Robert had a Moiety Lease to commence after failure of payment
Deed made by the Plaintiff Eliz. in Feb. 1666. Frandulent Deed. before her Marriage with the Plaintiff Sir Philip Howard and that the Plaintiff Sir Philip in right of his said Wife might have all her benefit and interest in or to the Estate of Sir John Baker her former Husband and receive the Rents and profits of the premisses The Case being that Sir John Baker the Father being seized in Fee of Lands by two Deeds Tripartite of Lease and Release made between himself of the one part Sir Robert Newton deceased of the second and Sir John Baker the Son and Dame Eliz. the Plaintiff and sole Daughter of Sir Robert Newton of the third part in consideration of a Marriage between the Plaintiff Dame Eliz. and Sir John Baker the Son and 4000 l. portion conveyed the same to Sir Robert Newton and his Heirs part of which Lands were for the said Dame Eliz. Joynture and Sir John Baker the Father and Dame Mary his Wife being dead Sir John the Son sold part of the premisses for payment of debts part whereof was the Joynture of Dame Eliz. and in consideration of the said Dame Elizabeth joyning in such sale and parting with her Joynture Sir John her Husband in lieu thereof and of 1500 l. to be paid to Dame Elizabeth for a Joynture house limitted the premisses unsold to the said Dame Elizabeth and the Defendants for 400 years upon Trust by Sale thereof to pay the said Dame Elizabeth the said 1500 l. and also the Rents and profits of the whole until Sale and the residue of the said premisses remaining unsold to Dame Elizabeth during her life and after to wait on the Inheritance And in 1658 the Inheritance was conveyed to Sir Robert Newton and his Heirs and he by Will devised the same to the said Dame Elizabeth for life Remainder to the first Son of the Plaintiff Sir Philip and Dame Elizabeth so the Plaintiff being intituled to the 1500 l. and the term of 400 years after the Trusts performed and so ought in right of the said Dame Elizabeth his Lady to continue in the possession of the premisses and receive the Rents and profits thereof which the Defendants refused to do pretending the term of 400 years is limited to them upon other Trusts and in particular that the Plaintiff Dame Elizabeth before her Marriage to the Plaintiff Sir Philip by her Deed of the 9th of February 1666 Assigned to the Defendants all monies then due or to be payable to her by vertue of the Deed in Trust for her benefit and to be at her disposing during the Joynt lives of her and the said Sir Philip whether she Married or continued Sole and that she should have power by writing under her Hand and Seal to dispose thereof for the benefit of her Daughter by her former Husband and that she hath disposed thereof accordingly which said Deed the Plaintiff insists is fraudulent or with power of revocation and never mentioned to Sir Phillip and that Sir Philip after his Marriage setled 500 l. per Annum on the said Dame Elizabeth for a Joynture which he would not have done if he had known or understood the said Dame Elizabeth had made such Deed or disposition as aforesaid of her former Husbands Estate and since their Marriage she desired leave of Sir Philip that she might receive the Rents and profits of the said Lands of her former Husband without mentioning the said Deed and therefore the same ought to be set aside The Defendants do insist the said Dame Elizabeth before her Marriage with the said Philip did declare to him that who ever did Marry her should have no benefit of any Estate that she had by her former Husband and that Sir Philip did agree to bar himself thereof and take no benefit thereby A Widow makes a Deed of her former Husband Estate and marries the second Husband not privy to it the Deed set aside and the second Husband to enjoy the Estate and that Sir Robert Newton looking upon the Estate as setled on his Grand-children as aforesaid and had given his personal Estate and 700 l. per Annum to the Plaintiffs and their Sons and the said Sir Robert Newton never pretended right to the said Estate or intermedled therewith that there is no reason to set a side the said Deed of the 9th of Feb. aforesaid This Court being assisted with the Judges on reading the said Deed it not appearing unto this Court that the said Sir Philip had any notice of the said Deed 9th of Feb. 1666. till after the death of the said Sir Robert Newton which was several years after the Marriage nor was privy or consented to the making of any such Deed but haveing intimation that Dame Elizabeth intended to dispose of her interest in her former Husbands Estate from such Husband as she should Marry broka off the treaty of Marriage which was afterwards brought on again by some Friends of the said Dame Elizabeth and that the said Sir Philip was induced to Marry the said Dame Elizabeth upon the hopes and confidence of having the interest she had in the Estate of the said Sir John Baker her former Husband without which he would never have married her and that the said Sir Philip never knew of the said Deed of the 9th of Feb. 1666 but the same was a fraud upon Sir Phillip and that therefore no use ought to be made thereof and decreed the said Deed of the 9th of Feb. 1666 be absolutely set aside and no use to be made thereof against the said Sir Philip or any claiming under him Poter contra Habbert 24 Car. 2. fo 591. THis Bill is to have a redemption of a Mortgage made in 1636 Mortgage by the Plaintiffes Father to one Abraham Dawes for 5000 l. and for non-payment of the Mortgage mony Sir Thomas Dawes Son and Heir of the said Abraham Dawes entred in 1641 and he and his Assigns have ever since taken the profits And the Defendant insists that the said Thomas Dawes in 49 conveyed the mortgaged premisses to Hugh Hubbert the Defendants Father for 7000 l. and that in 1641 when Sir Thomas Dawes entred there was 5000 l. due on the Mortgage besides interest so he would be charged without 350 l. per Annum for mean profits since that time and would have 6 l. per Cent. Interest for the 7000 l. from the time it appearing on the conveyance This Cause being first heard by Judge Ransford who ordered the Plaintiffs to redeem Computation of interest monies according to the Statute in force and the account for the Interest of the 500 l. to begin from 1636 the time of lending the mony and from that to 1642 Interest to be paid according to Acts then in force and from 42 to 46 Interest at 8 l. and 4 l. per Cent. The Cause being heard again by the Lord Keeper Bridgeman assisted with Judge Tyrrle Morton and Wild who ordered the
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
that it should extend only to the Testators Sister Ann Carr and her Children and to the Testators Nephews and Nieces now living and that no Kindred out of the degree of a Brother or Sister to the Testator or a Child of such Brother or Sister ought to come in or have any share of the said Residue and that amongst those that are to come into the Distribution the Executor ought chiefly to consider those that have most need that so they that have more need may have more than they that have less and decreed the same accordingly and as to the said John Buncher who was his Sisters Son and so to have share and was particularly recommended to the Executor who the Court declared had a power to give some more than other this Court ordered the Executor to give him somewhat considerably out of the Residue of the said Estate and the Executor to distribute the remainder to such of the Kindred as are to come into the Distribution as shall appear to the said Executor to have most need and in such manner and proportion as he shall think fit and Sir Samuel Clark one of the Masters of this Court is to see right done in this Case Distribution and the Bill wherein the Plaintiffs which are beyond the degrees of Nephews of the said Testator is to stand dismist Bourne contra Tynt 30 Car. 2. fo 636. THe Case is Will. that Roger Brown the Plaintiffs Brother by his Will in 1671. devised to Executors in Trust all Lands as before that time were Mortgaged to him and all Money due thereupon that they should lay out so much of his Personal Estate as remained after Debts and Legacies paid in a purchase of Lands of Inheritance to be setled on the first Son of his Body and the Heirs Males of the Body of such first Son and so to all Sons in Tail Male and for want of such Issue on the Plaintiff for life remainder to the Plaintiffs eldest Son in Tail remainders over to the Plaintiffs Children in Tail and by his Will declared and devised that in case the Child his said Wife was then big withal should be a Daughter then he gave to her 1000 l. to be paid to her at 21 or 6 Months after Marriage and in case she Marryed with consent of the Trustees then the said Portion to be 3000 l. and it was provided by the said Will that the Trustees out of the Interest of the said 3000 l. should pay for the Maintenance of the said Child 80 l. per Annum and it was also provided that in case such Daughter should dye before such Marriage or Age of 21 then her Portion and Mony so devised to her should go and be for the use and benefit of such Person or Persons as should at any time enjoy his Lands of Inheritance according to the Will and thereby declared the same Money to be laid out in a Purchase of Lands to be setled as aforesaid and also declared that the rest of the Personal Estate not given or disposed of by his Will should all be bestowed in Lands of Inheritance and setled as aforesaid and the said Roger Burne dyed without Issue Male of his Body and about three Months after the said Defendant Florence his only Daughter was Born and the Trustees have not pursuant to the Will laid out the Personal Estate in Lands so that the Plaintiff ought to have the Interest of such Money as should have been laid out in Lands The question in this case being whether the 3000 l. and the Interest thereof over and above the 80 l. per Annum Maintenance of the Defendant Florence should be paid to the Defendant or to the Plaintiff who claims the same by virtue of the Will in case the said Defendant Florence had not happened to be Born the Will being made before she was Born and the Plaintiff claiming the 3000 l. and Interest over and above the said 80 l. per Annum in Case she should dye or not be Marryed or incapacitated to dispose thereof The Defendant insists that the Plaintiff having a very considerable Estate from the Testator by the said Will which would have descended to the Defendant Florence in case she had been born and living at the time of the Death of her said Father and that the Plaintiff cannot have any pretence to the interest of the said 3000 l. as aforesaid for that there is not any Clause or Direction in the Will touching the same Portion and Interest devised upon a contingency of dying or Marriage decreed to be paid into Court for the benefit of the Heir according to the Will in case of the Devisees death This Court declared the 3000 l. and Interest over and above the said 80 l. per Annum belongs to the Plaintiff in case the said Florence dye before she receive the same by the said Will and Decreed that the Interest of the 3000 l. be paid into Court and not to be taken out without good Security given by the said Helena to make good the Benefit thereof to the Plaintiff in case the said Florence dye before 21 years or Marryed as aforesaid as the Will directs Elvard contra Warren al' 31 Car. 2. fo 350. THe Defendant being in Contempt for disobeying a Decree Prisoner by Habeas Corpus brought from Bristol and turned over to the Fleet for that he was in contempt and being a Prisoner in Bristol a Habeas Corpus cum causis was ordered to bring him to the Bar of this Court who was brought up and turned over to the Fleet who is there a Prisoner and refuses to obey the said Decree The Court ordered a Sequestration against his Real and Personal Estate Warner contra Borsley 31 Car. 2. fo 629. THe question being Devise whether a Devise of the Plaintiffs Father by his Will of his Personal Estate and Debts to the Plaintiff in remainder after the death of his Mother and the Devise thereof to her in the first place she being Executrix to the said 1st Testator and the Defendant her Executor were good or not The Plaintiff insisted That the Devise of the personal Estate by the Will of the Testator to his Wife was an absolute Devise to her by operation of Law and was vested in her and so consequently in the Defendant who is Executor of the said Alice by virtue of the said Executor and the Devise or Limitation over to the Plaintiff after the death of his said Mother who was Executrix of the first Testator was absolutely void in Law and the said Defendant as Executor to the Plaintiffs said Mother is well intituled to the said personal Estate devised by the Testators said Will. The Plaintiff insisted That the Devise to the Plaintiff in Remainder after death of his Mother was a good Devise and ought to be countenanced the rather in regard such Devise in the life time of the said Testator and Testatrix was
Joynt Creditors That there can be no division of the Joynt Estate whereby to charge any part thereof with the private debts of either party and till the Joynt debts are paid and till division be made of the Surplus both parties are alike interessed and every part of the said Joynt Estate that the Commissioners have no power by the Commission to Administer an Oath to the Plaintiffs for proof of their debts they claiming debts from the said Widdows only and the Commission is against Widdows and Berman Joyntly and not severally and therefore cannot admit of the Plaintiffs Creditors This Court declared That the Estate belonging to the Joynt Trade as also the debts due from the same ought to be divided into Moieties and that each Moiety of the Estate ought to be charged in the first place with a Moiety of the said Joint debts and if there be enough to pay all the debts belonging to the Joynt Trade with an Overplus then such Overplus ought to be applied to pay particular debts of each Partner but if sufficient shall not appear to pay all the Joynt debts and if either of the Partners shall pay more than a Moiety of the Joynt debts then such Partner is to come in before the said Commissioners and be admitted as a Creditor for what he shall so pay over and above his Moiety and decreed accordingly Charles Howard contra le Duke de Norfolk al' 34 Car. 2. fo 722. THe Plaintiff by his Bill seeks to have Execution of a Trust of a Term of 200 years of the Barony of Grostock The Case was this The Earl of Arundel the Duke of Norfolks Father by Lease and Release Perpetuities or Entailing a Term for years with Remainders over Anno 1647. setled the Barony of G. and other Lands to himself for life then to the Countess Elizabeth his Wife for life and after her decease there is a Term limited to the Lord Dorchester and other Trustees for 200 years under a Trust to be declared in a deed of the same date with the Release and the Limitation of the Inheritance after the Term of 200 years is first to Henry Howard now Duke of Norfolk and the Heirs Males of his Body then to Mr. Charles Howard the now Plaintiff Brother of the said Henry and so to all his Brothers Successively in Tail Male remainder over Then by the said other Deed the Earl declares the Trust of the Term of 200 years and that deed in the reciting part declares that it was intended the said Term should attend the Inheritance and the profits should go to such persons and in such manner as was therein after limited viz. to Henry Howard now Duke of Norfolk and the Heirs Males of his Body so long as Lord Thomas Lord Maltrevers Eldest Son of the said Earl of Arundell or any Issue Male of his Body should be living but in case he should die without Issue Male in the life-time of Henry Howard not leaving his Wife enseint with a Son or in case after the death of Thomas without Issue Male the Honour of the Earldom of Arundel should descend to Henry Howard then Henry Howard and his Heirs to be excluded of the Trust and then it should be to Charles the Plaintiff and the Heirs Males of his Body remainder in like manner to other Brothers After this the Contingency doth happen for Thomas Duke of Norfolk dies without Issue and the Earldom of Arundel as well as the Dukedom of Norfolk descended to Henry now Duke of Norfolk by Thomas his death without Issue presently upon this the Marquess of Dorchester the Surviving Trustee Assigns the Term to one Marriott he Assigns it to the now Duke of Norfolk and the Duke suffers a Recovery to the use of him and his Heirs and the Plaintiffs Bill is to have execution of the Trust of this Term to the use of himself and his Heirs Males of his Body The Defendants insist That by the Assignment by Marriott to my Lord Duke Henry the Term was Surrendred and quite gone that the Common Recovery which barred the remainders which the other Brothers had would also be a Bar to the Trust of this Term and that the trust of a Term to Henry and the Heirs Males of his Body until by the death of Thomas without Issue the Earldom should descend upon him and after that to Charles and the Heirs Males of his Body was a void Limitation of the remainder to Charles The Plaintiff insists Though the Term by the Survivor is gone and Merged in the Inheritance yet the Trust of that Term remains in Equity That this is not a Term that attends the Inheritance but it s a Term in gross and so not barred by the Recovery and that the Limitation of the remainder in Contingency is good in Law and Relief ought to be had in this Court The Lord Chancellor Nottingham the Case being of great Consequence calls the Judges to his Assistance viz. the Lord Chief Justice Pemberton the Lord Chief Justice North and the Lord Chief Baron Mountague and they made one single point in the case Whether this Contingent Trust of a Term limited to the Plaintiff Charles and the Heirs of his Body upon the dying of Thomas without Issue Male whereby the Honour did descend to Henry be good in point of Creation and Limitation for as for the Recovery if this be not a good Limitation in point of Creation the Recovery will do nothing so that supposeth it to go along with the Inheritance and if this take effect then it will suffer no prejudice by the Recovery And as for the Assignment by Marriott to the Duke if this Court decree it for the Plaintiff then it is a Breach of Trust and then he must answer for it and so must the Duke for it is a Surrender to a person who had notice of the Trust If for the Defendant then it is of no weight So that the whole rests upon the first single point viz. whether it be a good Limitation upon the Contingency to Charles or as they call it Springing Trust a springing Trust And the said three Judges were all of Opinion that it was a void Limitation and that it ought to be Decreed for the Defendant They said Term in gross and a Term attending the Inheritance the difference there is great difference as to the Limitation of Terms that are in gross and Terms that attend the Inheritance as to Terms in Gross they are not capable of Limitation to one after the death of another without Issue but in Termsattendant upon an Inheritance there may be such a Limitation if the Inheritance be so limited and not else Now the Term is capable of a Limitation to Henry and the Heirs Males of his Body and for want of such Issue to Charles and the Heirs Males of his Body because it hath an Inheritance to support it But now to put another limitation upon it that upon the
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
and determined by his death and therefore ought not to be Revived against the Defendant his Heirs nor is his Real Estate in the hands of his Heir chargeable with the Personal duty or Decree for a Personal duty The Plaintiff insisted This is a Case of Extremity being on the behalf of a Charity and the Defendant endeavours to deprive the Plaintiff of 2000 l. given for the purchasing a 100 l. per Annum for Maintenance of two Fellows of a Colledge His Lordship declared That the Decree being for a personal Duty ought not to be revived against the Defendant as Heir and allowed the Demurrer and dismist the Bill Domina Dacres contra Chute 34 Car. 2. fo 861. THe matter controverted is touching Costs Costs the Plaintiff had a Decree against the Defendants Father deceased and that the Plaintiff should have her Costs of that Suit and the said Cost being taxed they became part of that Decree as much as if they had been named in the Decree in certainty The Defendant insisted That upon the first hearing Costs were only reserved till after Report and upon hearing Exceptions to that Report nothing was said touching Costs but in the Order of confirming the last Report in that Cause Costs are directed to be taxed but the Defendants Father by name was to pay them and by the Decree as it is inrolled the Reversion of the Lands in question was directed to stand charged with the Debts and Damages but not with the Costs and the Costs were given as a personal thing and died with the Defendants said Father and cannot affect the said Estate which was the Grandfathers and the Plaintiff could not have revived her Suit for the Costs alone This Court declared A Suit cannot be revived for Costs alone where no duty is decreed That tho' it may be true that a Suit cannot be revived for Costs alone where there is no duty decreed because it is the Latches of the party not to get them taxed where there is nothing else in demand Yet when there is a duty decreed and Costs awarded by the same Decree which is signed and inrolled in the life of the party it would be unreasonable that by the Defendants delaying the Account the Costs should be lost which could not properly be taxed till the final Decree and when the charge of Suit is at an end And this Court further declared That the Costs when taxed may be recovered out of the Assets as in the Case of Heirs and Executors at the Common Law and this Court looks upon the wording of the Decree in that manner to proceed from the difference between the Debt and Costs the Debt not being chargable upon the person at all and the Costs chargable upon the person as well as the Assets and it were unjust to expound the Decree by charging the person to discharge the Assets from payment of Costs to which they are naturally chargable unless they have been paid by the Defendants Father This Court therefore thought fit Costs from their time of being Taxed to carry Interest and shall charge and be recovered out of the Assets that the Costs from the time that they were taxed should carry Interest and charge the Assets by discent and ordered the Account to be taken by the Master accordingly Windham contra Jennings 34 Car. 2. fo 776. THat Sir George Crook Mortgaged Lands in 28 Car. 2. Mortgage for 2000 l. before which time the Mortgagor borrowed of him that was after the Mortgagee 300 l. which was agreed to be secured by the said Morgage both sums must be paid upon the Redemption to the Defendant for 2000 l. and died and the Plaintiff being his Heir prays a Redemption But the Defendant insists That the said Sir George Crook before the Mortgage borrowed of the Defendant 300 l. on Bond viz. in 1672 and the Defendant insists it was agreed to be secured also by the said Mortgage but the Plaintiff is not willing to pay that only will redeem the Mortgage This Court decreed the Plaintiff to pay to the Defendant both the 2000 l. and the 300 l. and then the Plaintiff to redeem Noell al' contra Robinson 34 Car. 2. fo 168 178. THe Case being viz. That Sir Martin Noel deceased Father of the Plaintiff Bill to answer to Devisees being seised in Fee of a moyety of a Plantation in the Barbados called Horn hall with the appurtenances and being legally intituled by the Laws and Customs of the said Island to dispose thereof by his Will in writing devised the same unto the Plaintiffs Nathaniel Grace Elizabeth and one Theodorus Noell and Sir Martin by his Will appointed the Defendant Robinson to supply the said Plantation with all necessaries during the Minorities of the Plaintiffs and to receive the profits in trust for the Plaintiffs and for his care therein gives him an allowance and made his Son Martin Noell and Theodorus Noell deceased and the Defendant Robinson his Executors and the Defendant Robinson proved the Will and took on him the Execution thereof and management of the Plantation and assented to the Legacy and Bequests of the Plaintiffs and in performance of such Trust and Assent leased the premisses to one John Worsam for 20 years at 20000 l. weight of Sugars Rent per Annum in the Trust for the Plaintiffs the Devisees and since have conveyed away the same to one Falkner and others to defeat the Plaintiffs so the Bill is to call the Defendant Robinson and Falkner to Account for the profits of the premisses and to convey their Interest to the Plaintiffs The Defendants insists That by the Custom of the said Island of Barbado's where the said premisses are the said Sir Martin had not power to make such Devise of the premisses to the Plaintiffs he being then much indebted to several persons and the said Defendant Robinson had paid several debts for him and insists Thar the said Lease made to Worsam was done without due consideration and not with any intent thereby to assent to the Legacy to the Plaintiffs and deprive the Creditors of their just debts or in any sort to exempt the Estate there from nor had no reason so to do he being bound with the Testator in several Securities to several persons in several sums of Mony and imployed all the profits he received as also 500 and odd pounds for Worsams Lease for the payment of Sir Martins debts amounting to 30000 l. and so the Testators Estate ought to pay debts and not to be subject to his Will and the said Defendant believing the premisses to be as Lands of Inheritance made the said Lease to Worsam a Creditor of Sir Martins but is since advised it is a Chattel and lyable to the payment of his debts But the Plaintiffs insisted That by the said Lease to Worsam and reservation of the Rent thereon to himself in Trust for the Plaintiffs he had placed the Estate in such manner that
the same could never by any subsequent Act come into the Administration of the Estate of Sir Martin What Act amounts to an Assent of a Legacy and that every Act of the Defendant Robinson was a plain Assent to the Legacy to the Plaintiffs and it is plain the premisses were devisable and so the Plaintiffs Title plain and undoubted and the Plaintiffs ought to have a Decree against the Defendant to Account to them for the said Estate and ought to have the benefit of the said Lease The Defendant further insisted That by such imprudent Act as aforesaid he ought not to be Devested of the Estate but it ought to go to pay Sir Martins debts This Court declared That by the said Clause in the Lease to Worsam the Defendant had Assented to the Plaintiffs Legacies given them by the Will of their Father and that the Devise by the Will was a good Devise Devise of a Plantation in Barbados and that the premisses did well pass thereby and that the said Act of the Defendant Robinson being voluntary had put the Estate out of the power of the Creditors of Sir Martin or out of the power of any Administrator de bonis non of him Decree the Plaintiffs to have the benefit and the Defendants to assign and decreed the Plaintiffs to have the benefit of the premisses and of the Lease to Worsam and the Defendants to Assign their Interests to the Plaintiffs accordingly But the said Defendant desiring a re-hearing of the Cause which was on the 20th of Nov. 1682. when the Defendant insisted That the said Lease could not be an Assent for that the Defendant Robinson then claimed the premisses not as Executor or otherwise than only as Trustee for the Devisees whose Inheritance he then took the same to be and not as personal Estate upon which and other grounds the Defendant insists the said Rent and Reversion of the premisses expectant on the Determination of the Lease was and ought to be of the Testators personal Estate and to go in the ordinary course of Administration and to an Administrator de bonis non and be lyable to debts His Lordship notwithstanding what was now urged by the Defendant declared Decree by Finch he saw no cause to alter the former Decree but confirmed the same This Decree reversed by the Lord Keeper North The Decree reversed by North. and in 1683 fo 168. he heard this Cause upon the whole merits and ordered an Account And in 1686 Finch his Decree confined by Jefferys The Lord Chancellor Jefferys reheard this Cause upon the Merits and confirmed my Lord Chancellor Finch's Decree and discharged my Lord North's Decree Benson contra Bellasis 34 Car. 2. fo 848. THis Cause having received a hearing before the Lord Chancellor Nottingham 11 July 33 Car. 2. who made a Decree for excluding the Defendant Dame Dorothy Administratrix of Robert Benson the Plaintiffs Father from having any part of his personal Estate and the said Cause being heard 10 July 35 Car. 2. before the Lord Keeper North who decreed the said Defendant Dame Dorothy to retain to her own use one third part of the said personal Estate of the said Robert Benson and the said Cause being again reheard this day by the Lord Chancellor Jefferys The Case being that the said Robert Benson on his Marriage with the Defendant Dame Dorothy for the setling of a Joynture on the said Dorothy in full of all Joyntures Dowers and Thirds which she might claim out of his real and personal Estate conveyed Lands to the use of himself for life and after to the said Dorothy for life in full of all Joynturs c. as is aforesaid with this Proviso Settlement on Marriage That if the said Dorothy should after the death of the said Robert Benson have or claim to have or should recover any other part of the Lands or Tenements or any part of the personal Estate of the said Robert by the Custom of the Province of York or by any other means whatever other than what the said Robert Benson should give Bequeath or Settle upon or to her That then the Feoffees therein named should be seised of all the premisses setled in use upon the said Dorothy to the use of Sir Henry Thompson and Mr. Grayham their Executors Administrators and Assigns for 60 years to commence from the death of the said Robert if the said Dorothy should so long live Upon Special Trust that the said Thomson and Grayham should receive the profits of the premisses limited in the Joynture and they should dispose thereof to such persons and their uses as should be damnified by the said Dorothys perception of the profits of any other Lands of the said Robert or the taking or recovery of any part of the personal Estate other than what should be given or bequeathed until the respective values of the Profits or values of such Personal Estate should be fully satisfied and the residue of the said Profits to remain to the said Dorothy That the said Robert dying intestate and the said Dorothy Administring at York and in the Prerogative Court of Canterbury as Guardian to the Plaintiff Robert possessed the Real and Personal Estate prerends a Right to some part of the Personal Estate by the said Administration notwithstanding the said Marriage agreement The Lord Chancellor Nottingham declared the said Dorothy was bound by the said Marriage Agreement Marriage Agreement provided if the Wise claim any of the personal Estate by the Custom of the Province of York then the Estate to other use Decreed she is bound by the said Settlement and ought not to claim any part of the personal Estate by Finch and the Administration ought to have been granted to her and that however the same ought not any ways to avail her for that it would be contrary to the said Settlement and Agreement and that the said Dorothy ought not to claim any part of the Real Estate other than what was Setled on her by the said deed or any of the Personal Estate and decreed accordingly But the Defendant Dorothy insisted Reversed by North. That the Lord Keeper North had adjudged one third of the Personal Estate to belong to the Defendant by virtue of the said Administration and was an accrewing Right not barred by the Marriage Agreement The Lord Chancellor Jefferies Confirmed by Jeffreys on reading the said Marriage Settlement and the said two former Orders declared That the said Order for the Excluding of the said Defendant Dorothy from having any part of the Personal Estate was a just Order and ought to stand and be pursued and that the said Order of the Lord Keeper Norths before mentioned ought to be set aside and Decreed accordingly Stapleton contra Dom. Sherwood 34 Car. 2. fo 732. THat Sir Phillip Stapleton the Plain tiffs Father Bill for Distribution of the personal Estate on his Marriage with his first Wife Setled
did intermarry with Sir John Lloyd in the Doctors life time with his consent who upon a Settlement made on the said Mary was to have 2000 l. Portion 1500 l. whereof was to be laid out in Lands for increase of Marys Joynture and that she had Issue by him the Plaintiff Ann. That Sir John Lloyd died and the said Dame Mary intermarryed with one Hutchinson without the consent good likeing or privity of the said Doctor Smalwood her Father That in 1683 the said Doctor Smalwood died having by his Will in 1683 made the Defendant James Smalwod and others Executors and thereby devised and settled his Estate real and personal viz. according to his Settlement formerly made he gave his said Daughter Dame Mary all his Lands during her life if his Executor should so think sit and in case they should not to his Granchild Ann Love and in case of failure to his Grandchild Theophania Hutchinson during her life and in case of failure to his Nephew the Defendant James Smalwood for ever And his personal Estate as Mony Books Plate c. to be divided amongst his said Daughters Grandchildren and Nephew James Smalwood at the discretion of his Executors so to have the said 1500 l. which rested in Dr. Smalwoods Hands being part of the 2000 l. Portion Covenanted by Dr. Smalwood to be laid out in Lands by the said Doctor for increase of Mary's Joynture aforesaid to be laid out according to the Doctors Covenants and to have the benefit of the said Settlement in 1672 is the Plaintiff Bill The Defendant James Smalwood pleads and claims a right to the Estate of Doctor Smalwood by his Will and by the said Deed of 1672 the said Dame Mary having by her Marriage with the said Hutchinson in the Doctors life time without his privity or consent broke the Condition by which she was to have enjoyed the Lands in that Settlement and prays the Judgment of this Court the Estate being limited to him as aforesaid And he further pleads and insists That Dame Mary ought not to have any discovery of the Writings of the Doctors Estate because he the said James Smalwood and the other Defendant Woodroff have not yet consented that she should have any part of the Doctors Estate which power was given them by the Doctors Will as aforesaid and whether he and the other Defendant ought to consent as aforesaid submits to this Court But the Plaintiffs insist Lands setled on a Daughter provided she Marry by consent and she Marries by consent after she Marries a second Husband without consent this second Marriage is no breach of the proviso That they admit such proviso in the Deed of 1672 that in case the said Dame Mary should Marry in the life time of the Doctor without his privity consent and liking then all and every the Limitations therein should cease and be void But insist That the Marriage between Sir John Lloyd and Dame Mary was concluded by the Doctor himself as appears by the said Articles and that they married with the Doctors good liking privity and consent according to the said Condition and insist That Dame Mary's second Marriage with Hutchinson was not without the consent privity and good liking of the said Doctor and insist also that the said proviso by Dame Marys first Marriage was fully performed and the Estates in and by the said Settlement granted absolutely vested according to the Limitation declared and contained so as the said second Marriage of Dame Mary with the said Hutchinson if it had been without such consent could not have divested the same and therein crave the Judgment of this Court The Court declared That the first Marriage of Dame Mary being by her Fathers consent her second Marriage though it had been without his consent could be no breach of the Proviso or Conditon in the first Settlement and decreed the Defendants the Executors of Doctor Smalwood to account for all the personal Estate of the said Doctor Monies decreed to be laid out in Land according to Marriage Agreement and the Rents and profits of the real Estate and if personal Estate sufficient after debts to pay the 1500 l. then they are to pay the same to the Trustees which they are to lay out in a purchase of Lands according to the Deed of the 18 Aug. 1683. Com' Winchelsey al' contra Dom ' Norcloffe al' 1 Jac. 2. fo 1026. THat Katherine Act of Parliament for the Settlement of Intestates Estates late Countess of Winchelsey the Plaintiff the Earls late Wife had three Husbands Successively viz. Lister her first Husband by whom she had Issue the Defendant Christopher Lister Sir John Wentworth her second Husband by whom she had Issue Thomas Wentworth since deceased and the Defendant John Wentworth and the Plaintiff the Earl her third Husband by whom she had Issue the said Lady Catherine and the Plaintiff the Lady Elizabeth That the said Wentworth had a Real Estate by discent from his Father out of which after his Fathers death there was payable to or to the use of the said Thomas several Sums of money for Rents Fines and Profits That in 1684. the said Thomas died Intestate leaving no Wife or Child but leaving the Defendant Christopher Lister John Wentworth the Lady Katherine and the Plaintiff the Lady Elizabeth his Brothers and Sisters who being the next of Kin in equal degree his Mother the said Countess dying in his lifetime they by Virtue of the late Act of Parliament for selling Intestate Estates became Intituled to the surplus of the said Thomas his Personal Estate to be equally distributed and divided amongst them viz. to each of them a fourth part thereof that before any Distribution made the Lady Katherine died Intestate and Administration of her Estate was granted to the Plaintiff the Earl her Father who by Virtue thereof and of the said Act of Parliament ought to have the said Lady Katherines fourth part of the said Personal Estate of the said Thomas Wentworth her Brother and the Plaintiff the Lady Elizabeth ought to have another fourth part but the Defendants pretend that part of the said Thomas his Personal Estate was in his Life-time Invested in the purchase of Lands which were Conveyed to him and his Heirs and ought to Discend to the said John Wentworth as his Brother and Heir and the said money ought to be accounted as part of his Personal Estate whereas if any such Purchase were made the same were without his Consent and during his Minority when he had no power to direct the laying out thereof and the Lands in Equity ought to be accounted part of his personal Estate of which the Plaintiff seeks to have their shares The Defendants insist That the Defendant John Wentworth only was of the whole Blood the rest being but of the half blood to him only and leaving the Defendant Dame Dorothy his Grandmother by the Mothers side viz. Mother of the said
Countess who conceives her self to be Intituled as Grandmother to an equal share with any of his Brothers and Sisters and insists That the said Lady Katherine dying within less than a year after the Intestate Thomas Wentworth she was not by the said Statute Intituled to any share of the said Personal Estate her supposed Right being meerly a thing in possibility and Expectation which vanished by her death within the year And the Defendants insist That the Countess before her Marriage with the Plaintiff the Earl viz. in 1673. granted Lands to Trustees for 21 years if she so long lived in Trust out of those Lands and other Lands late of Sir John Wentworth to pay her 200 l. per Annum till the said Thomas was 12 years of Age for his Maintenance and after till 21 so much as the said Trustees thought fit and the Residue for the benefit of the said Thomas his Heirs and Assigns That the said Defendants with the Countesses Approbation out of the moneys arising by the said Trust made several Purchases in their own Names and declared the Trust thereof for the said Thomas Wentworth and his Heirs and the Defendant Dame Dorothy made other Purchases in her own Name with the said Thomas his momey which she received in Trust for him and insists that those moneys so invested in those Purchases in the life-time of the said Thomas in Trust are not nor at his death were any part of his Personal Estate but the Lands descend to the Defendant John Wentworth as his Heir That Sir John Wentworth died in 1671. and left a great Personal Estate which came to the Earl and Countess on their Marriage and that Sir John Wentworth died Intestate within the Province of York the Defendant John Wentworth being his younger Son unpreferred became Intituled to a third part of his Estate equally with his Widow by the Custom of that Province and by force of the said Act for setling Intestate Estates Thomas and John became Intituled with her to the other third part The Defendants farther insist That the said Earl is not nor can be Intituled to any share of the said Thomas Wentworths Personal Estate for that the Act of Parliament is only Authoritative and directive to the Ordinary and Administrator and there are no vesting words therein whereby to Intitle the Lady Katherine to a share of the Estate and that she dying before any distribution and within the 12 Months allowed to that purpose her share fell among her Surviving Brothers and Sisters and however if she was Intituled to any part it could only be to a half-share she being but of the half-blood to the deceased and that so in the Course of the Civil Law But the Plaintiffs insisted The said Act explained That though the Act of Parliament be only Authoritative and directive to the Judge and yet such Authority and direction in an Act of Parliament doth by Judgment and Implication of Law vest an Interest in the Wife Children and Kindred for whose benefit the Act was made as much as if it had been a bequest of residuum bonorum for that the Act appoints all Ordinaries whatsoever on granting any Administration to take the Bond prescribed thereby one Clause of the Condition whereof is to pay the surplus that shall be found due on such Administration account to such Person or Persons as the Judge by his Decree or Sentence to that Act shall limit and appoint and then appoints the Ordinaries and Judges repectively to order and make just and equal distribution of such surplus amongst the Wife Children or next of Kin according to the Rules and Limitations therein and the same to Decree and settle which is the very Title of that Act and that tho' there be Twelve months time given for distribution yet that is only with respect to Creditors and no way hinders the vesting the surplus in such persons as are appointed to have it immediately upon the Trustees death any more then a Legacy to be paid in futuro and that it is generally a much longer time before an Intestates Estate can be got in and the surplus known and if the Executors or Administrators of persons dying in the mean time shall lose their shares it will elude the intent of the Act of Parliament which was made for the benefit of the Wife and Children and Kindred generally And it will lye much in the power of an Administrator by retarding his Account to prevent another of his share nay it will be mischevous to the Administrator and those who shall claim distribution for that if no Interest be vested in any before an actual distribution by Decree or Sentence then no distribution can be by Agreement or Consent of the Parties nor let the occasions or necessities of any claiming distribution be never so great can any Administrator satisfie the payment of any part of the Estate till such Sentence or Decree made which the Law makes could never intend and if no Interest be vested by that Act then hath this Court no Jurisdiction to intermedle therewith for that the Act only directs the Ecclesiastical Judge Distributions according to the Act for setling Intestates Estates are made in Chancery as well as in the Ecclesiastical Courts to make a Decree or Sentence for distribution but the same vesting an Interest and there being no Negative Words that a distribution shall be sued for there and elsewhere several distributions have been made in this Court as well in the Lord Chancellor Finch his time and the Lord Keeper North's time as since and that the same is looked upon as a Point setled and that it is the constant course of the Ecclesiastical Courts to Decree the shares of any persons dying before distribution to the Executors or Administrators of such persons so dying and not to the Surviving person claiming distribution and this Act was intended as the Will of every Intestate and the Wife Children and Kindred respectively to be as well intitutled as if the Intestate had made a Will and so Bequeathed the same amongst them and for the half Blood and whole Blood the same hath made no distribution between them but appointed the distribution to be equal and that for the Monies alleadged to be invested in Lands such Purchases do not alter the nature of the Case for that Thomas being a Minor could not give Authority or Consent for it and he might have discended to it when at Age and dying in Minority the same still remains part of his personal Estate and the Land is but in the nature of a Mortgage or additional Security for it This Court declared they saw no cause or colour to Decree any share for the Desendant Dame Dorothy and conceives her no way intituled to any but as to the Plaintiff the Lord Winchelsey This Court declared they were fully satisfied that the said Act of Parliament doth immediately upon the death of an Intestate If any of the next
should Marry in his Fathers life time then he should from such Marriage during his Fathers life pay the Defendant Interest for the 2500 l. And the Defendant insists That if the said Plaintiff dyed before his Father the Defendant had lost all his Mony This Cause being first heard by my Lord Finch 9 Feb. 33 Car. 2. who then upon reading the said Defezance declared That as this Cause was he could not releive the Plaintiff otherwise then against the penalty and decreed the Plaintiff to pay to the Defendant 2500 l. with Interest This Cause was Re-heard by my Lord Chancellor Jeffreys the Plaintiff insisted That he had by order of this Court 5300 l. upon the said Judgment and that the late Lord Chancellor and Lord Keeper had frequently releived against such fraudulent and corrupt bargains made by Heirs in their Fathers life time and that there was not any real difference where the contract is for Mony and where it is for Goods This Court on reading the Defezance declared it fully appeared The Heir relieved against a concontingent contract made in his Fathers life time because it seemed unconscionable That these Bargains were corrupt and fraudulent and tended to the destruction of Heirs sent hither for Education and to the utter Ruin of Families and as there were new Frauds and subtle contrivances for the carrying them on so the relief of this Court ought to be extended to meet with and correct such corrupt Bargains and unconscionable practices and decreed the former order to be discharged and the Plaintiff to be restored to what he hath paid over and besides the Principal Mony and Interest Durston contra Sandys 2 Jac. 2. fo 108. THat the Defendant being Patron of the Rectory of Messenden in Com' Gloucester The Parson relieved against a Bond given for Resignation and the former Incumbent having Resigned the same the Defendant told the Plaintiff he would present him to the said Rectory worth about 100 l. per Annum and the Plaintiff coming to the Defendant for the said Presentation the Defendant drew a Bond of 300 l. penalty with Condition That the Plaintiff should resign the said Rectory at any time within six Months Notice which the Plaintiff sealed and thereupon the Plaintiff was Instituted and Inducted and was ever since a constant Resident on the place and hath been at charge of Repairs and the Plaintiff demanded Tithes of the Defendant who refuses to pay the same but gave the Plaintiff Notice to resign who Resigned the said Rectory into the Hands of the Bishop of Gloucester but the Bishop refused to accept the said Resignation and ordered the Plaintiff to continue to serve the Cure declaring That he would never countenance such Unjust practices of the Defendant but ordered his Register to enter it as an Act of Court That the Plaintiff had tendred his Resignation and that the said Bishop had rejected it That the Defendant Arrested the Plaintiff on the said Bond for not Resigning so to be relieved against the said Bond is the Plaintiffs Suit The Defendant insisted That the Plaintiff demanded more than his just due for Tithes whereupon the Defendant refused payment and that the Defendant requesting the Plaintiff to resign according to the Condition of the said Bond the Defendant Arrested him which he hopes is Just for him to do and that this Court will not hinder the prosecution and that the Plaintiff hath no colour of Relief in this Court against the said Bond and insist That the Reason of his Arresting the Plaintiff on the said Bond was his Non-residence and litigious Carriage to the Parishioners This Court declared That such Bonds taken by Patrons from their Clerks to Resign at pleasure may be good in Law yet ought to be enjoyned and damned in Equity whensoever they are used to any ill purposes And the Defendant making ill use of the said Bond his Lordship decreed That a perpetual Injunction be awarded against the Defendant to stay proceeding at Law upon the said Bond. Knight contra Atkyns 2 Jac. 2. fo 604. THat the Plaintiff is Brother and Heir as well of John as Benjamin Knight Marriage Agreement to have Monies laid out in Lands for a Joynture to such uses the Remainder to the use of the right Heirs of the Husband The Mony is not laid out the Husband dies without Issue the Mony decreed to the Plaintiff being right Heir and also Executor of the said Benjamin and the said John Knight being seised of a Plantation in Barbadoes of 1000 l. per Annum by his Will declared his debts to be paid and gave several Legacies and made his Brother Benjamin sole Executor and gave him the residue of all his real and personal Estate and the said Benjamin proved the Will and afterwards a Treaty of Marriage was between the said Benjamin and Sir Johnathan Atkyns on behalf of Frances the Daughter of Sir Jonathan upon which Treaty it was agreed that Sir Jonathan should give the said Benjamin 1500 l. as a Portion with the said Frances and for a Joynture in case Frances survived Benjamin was to add 1500 l. and the said Sums to be laid out in a purchase of Lands to be setled upon Benjamin and Fraâ—â—â—s for life and for a Joynture for Frances in lieu of her Dower and after their decease to the Issue between them and for want of such Issue to the right Heirs of the said Benjamin and until such purchase the said respective Sums of 1500 l. to be paid into the hands of the Feoffees and the increase thereof to the uses aforesaid but in regard such a purchase could not be speedily found out Sir Jonathan and Benjamin became mutually bound to each other by Bonds of 3000 l. penalty with Condition reciting That there being suddenly a Marriage to be had between the said Benjamin and Frances and for setling a future Maintenance upon Frances in case she survived and upon the Issue between them If therefore Sir Jonathan his Heirs Executors c. should pay as a Marriage portion with the said Frances into the hands of two Feoffees to be joyntly appointed between them 1500 l. which with the like Sum to be paid by Benjamin was to be laid out upon good Security real or personal and the increase thereof for the uses aforesaid and in case the whole was not provided within a short time then so much as either party should deposit and the Remainder with all convenient speed then the said Bonds to be void That such provision was sufficient and in full of any Dower the said Frances might have to Benjamin's Estate That no Feoffees being appointed the 1500 l. still remains at Interest in Sir Jonathans hands And the said Benjamin for payment as well of his own as his Brother Johns debts and legacies and to oblige his real and personal Estate for performance of the Marriage Agreement did by Deed in 1681. convey unto Trustees all his Plantations Houses
c. upon Trust to himself for life and after his death to satisfie the said Bond of 3000 l. for payment of 1500 l. to Sir Jonathan for the future Maintenace of the said Frances according to the said Marriage Agreement and in full of Dower and to do all things according as he by his last Will should direct That the said Benjamin by Will 10 Dec. 1681. therein reciting the Condition of the said Bond gave his Wife 1000 l. unpaid of Sir Jonathans Bond and his Trustees to pay 1500 l. with 500 l. he had received of Sir Jonathan in part of his Wives portion which Sums made in all 3000 l. and was to be laid out in a purchase of Lands to be setled to the uses aforesaid and made Hulkot and Fowler Executors in Trust to manage for the Plaintiff whom he made his sole Executor who afterwards took upon him the Execution of the said Will and claims the said 3000 l. to be laid out in Lands to be setled according to the said Marriage Agreement which was in case Benjamin died without Issue the said Lands so to be setled were to come to Benjamins right Heirs and the Plaintiff is Instituted as Heir and Executor of Benjamin The Defendant Pierce confesses the Marriage Agreement and Bonds as in the Bill and that the Marriage between the said Henry and Frances took effect and the said Benjamin is since dead and that since his death the said Defendant Pierce hath married the said Frances and is thereby intituled to the benefit of the Bond entred into by the said Benjamin to Sir Jonathan and the Monies due thereon and to the Third part of Benjamins Lands The Plaintiffs insist That the said Frances dying without Issue the Mony in Sir Jonathan Atkyns his hands ought now to be paid to the Plaintiff This Court upon reading the said Bond and Condition and the Deed and Will of Benjamin declared That by the Marriage Agreement and Condition of the Bond it was very clear that the said Frances having no Issue by the said Benjamin could only have an Estate for life or the Interest of the Mony for her Maintenance and that the Plaintiff is well intituled to have the said 3000 l. paying the Defendant Pierce Interest for the 1500 l. which the said Benjamin the Plaintiffs Testator was bound to lay out and decreed accordingly Kettle by contra Lamb 2 Jac. 2. fo 1064. THat on a Treaty of Marriage between Richard Kettleby the Plaintiffs younger Brother Monies to be laid out in Lands for a Joynture by Marriage Articles and the Defendant Ann now Wife of the Defendant Atwood Articles were entred into and made between Thomas Laud Father of the Defendant Ann of the first part and the said Richard Kettleby of the second part and the Plaintiff and others Trustees of the third part whereby the said Lamb Covenanted to pay 1500 l. to the said Trustees as a Marriage-portion with the Defendant Ann his Daughter and the said Richard Kettleby Covenanted to pay 500 l. more which being 2000 l. was agreed to be laid out in the purchase of Lands to be setled upon the said Richard for life and after on the said Trustees and their Heirs during the life of Richard to preserve the contingent Remainders and after to the use of the said Ann his Wife during her life for her Joynture and after to their first and so to their seventh Son of their two Bodies and their Heirs successively and for want of such Issue to the Daughters and for want of such Issue to the right Heirs of the said Richard Kettleby for ever and that by the said Articles it was agreed that before such purchase could be made the said Trustees should place out at Interest the said 2000 l. and from time to time pay over the Interest to such person to whom the Lands are intended to be purchased was limited as if the same had been purchased and setled accordingly and there was a Proviso in the Articles That if the said Richard died before a purchase should be made leaving no Issue of his Body on the Body of the said Ann his intended Wife and Ann survived him that in that case the 2000 l. or so much thereof as was not laid out in Lands should either be laid out in the purchase of Lands to be setled upon the said Ann for life with Remainder to the right Heirs of Richard or else Three parts thereof the whole to be divided into Four parts of such Moneys as should be paid to the said Ann her Executors c. at her Election so as she made such Election within six Months after the said Richards death otherwise at the Election of Richards right Heir That afterwards the Marriage took effect and 1500 l. of the 2000 l. placed with the said Lamb by the Trustees who paid the Interest thereof to the said Richard Kettleby during his life and before the Mony was laid out in a purchase Richard died Intestete leaving Issue one Daughter named Ann who likewise died in a Month after the said Richard whereupon the Right of the 2000 l. or Lands to be purchased therewith after the death of Ann the Wife accrued to the Plaintiff Edward Kettleby as right Heir of the said Richard Kettleby so to have the 2000 l. invested in Lands and setled according to the said Articles for the benefit of the Plaintiff is the Plaintiffs Suit The Defendant Atwood who hath married the said Ann the Relict of the said Richard Kettleby insists That the said Ann his Wife is Administratrix to Richard her first Husband and the said Ann her Daughter and thereby well intituled to the personal Estate and that according to the Proviso in the said Articles the said Ann had made her Election to have 1500 l. of the 2000 l. to be at her own disposing and that she was well intituled to the other 500 l. as Administratrix to Richard and Ann her said Daughter and that the Marriage Articles being meerly for the benefit of the said Defendant Ann Atwood and her Issue and the Plaintiff no way intituled under the Consideration thereof there was no ground in Equity to compel a performance so as to give the Plaintiff the Defendants portion This Case being heard by the Lord Keeper North he declared That the 2000 l. did belong to the Administratrix of the said Richard Kettleby and ought not to be setled upon his Heir and dismissed the Plaintiffs Bill which dismission being signed and inrolled the Plaintiff brought his Bill of Review against the said Defendants and for Error Assigned that whereas it was declared by the said Lord North that the 2000 l. did belong to the Administratrix of Richard Kettleby and not to be setled upon his Heir That the same ought to be Decreed to be laid out in Land to be setled upon the said Ann only for life Remainder to the Plaintiff as Right Heir of Richard and his Right Heirs for ever according
Rent-charge devised in lieu of a Joynture and by the same Will an implicit Devise of Lands to her Decreed she shall have only the 200 l. per Annum 64 Parol Declaration of ones Intent not good against a Declaration in Writing 78 Deed tho' Cancelled yet good 100 Demurrer to a Bill of Discovery whether the Defendant be married or not good for that if she be married it s a forfeiture of the Estate 68 Bill to discover Settlements in Trust Plea That the Defendant was a Scrivener and had taken Oath not to discover the Secrets of his Clients Overruled 29 E DEfendant in what cases not to be Examined upon Interrogatories 16 Estate Personal Trustees lay out the the Monies of an Infant to purchase Lands in Fee this shall be abcounted part of his Personal Estate he dying a Minor 377 Personal Estate not specifically devised to be applied to the payment of Debts and the Real Estate not subject thereto 383 Remainder of a Personal Estate devised after Issue to J. S. a void Remainder 66 Articles of a Purchase and 600 l. paid Contractor dies before any Conveyance executed it was accounted part of his Personal Estate 139 F FOreign Attachment London 109 Fraudulent Deed or not 33 A Widow makes a Deed of her former Husbands Estate and marries the second Husband not privy to it the Deed set aside and the second Husband to enjoy the Estate 1 G GVardian takes Bond in his own name for Arrears of Rent by this the Guardian hath made it his own debt 97 H A Residue of a Term after Debts paid and a Life determined decreed not to the residuary Legatee but the Heir 296 No Re-hearing after a Decree Signed and Inrolled 361 The Heir relieved against a Contingent Contract made in his Fathers life time because it seemed unconscionable Marriage Agreement to have Mony laid out in Lands for a Joynture to such Vses the Remainder to the use of the right Heirs of the Husband the Mony is not laid out the Husband dies without Issue the Mony decreed to the Plaintiff being right Heir 400 Portion devised upon a Contingency of dying or Marriage decreed to be paid into Court for the benefit of the Heir if the Devisees dye 150 Persons by Habeas-corpus brought to Bristol and turned over to the Fleet for that he was in Contempt 151 I. THe certain profits of the premisses set against the Interest Interest upon Interest decreed 82 286 Where there is no Contingency of Survivorship but the Interest presently vests 133 Plaintff not relieved against a Judgment entred into 60 years ago and no consideration proved 54 From what time of the entring Judgment to be accounted 90 Examination of the actual entry of a Judgment in Chancery to what purpose 91 Judgments to Attach Lands according to the Priority of Originals 148 K. THe Kings Officer previledged from Parish Offices tho' he drive a Trade in the Parish 197 L. OF Leases to attend the Inheritance 233 243 273 Legacy vid. Wills Difference between a Legacy and a Trust 288 Who are Servants capable to receive Legacies by the general words to all my Servants c. Legacies to Poor Kindred how far to be Extended 395 Estate decreed to the residuary Legatee and not to the Administrator 100 Legacies given by a Will and a Codicil are distinct and not the same 74 Land Legatees and Mony Legatees decreed to abate in proportion 155 Legacy to be paid at 16 Legatee dies before her Administrator shall not receive it till the 16 years end 191 Legatee dies before payment of his Legacy yet payable to his next of Kin 98 Legacies devised to such who shall be his Servants at the time of his death who shall be said to be such Servants 101 Two Legatees and if either dye then to the Survivor one dies in the life of the Testator the Survivor shall have all 188 What Amounts to an Assent to a Legacy 250 Difference between a Lease which is to commence after failure of payment and a Mortgage with a Condition subsequent 54 Limitation of a Trust for the Heirs Males void and the benefit of the Trust belongs to the Executor 58 Defect of Livery and Seision aided in Chancery 250 M BIll to enforce the Lord of a Mannor to receive a Petition in nature of a Writ of false Judgment to reverse a common Recovery demurred to and the Demurrer allowed 387 Of Marriages by consent 24 95 366 Marriage Agreement provided if the Wife claims any of the personal Estate by the Custom of the Province of York then the Estate to go to other uses decreed she is bound by the said Settlement and ought not to claim any part of the personal Estate 251 Mean profits decreed tho' a long time since the mean profits tho' omitted in a former Decree yet decreed in a Later 261 The prior Mortgagee upon redemption by the second Mortgagee shall be charged with the profits by whomsoever received after the second Mortgage 209 Mortgage for 2000 l. before which time the Mortgagor borrowed of him that was afterwards Mortgagee 300 l. which was agreed should be secured by the said Mortgage both sums must be paid upon the Redemption 247 Whether Mortgage Mony to be paid by the Administrator in relief of the Heir and when not 274 275 The Plaintiff decreed to pay off a Bond of 50 l. as well as the Mortgage Mony upon Redemption 361 Creditors on Judgments and Bonds decreed to redeem Mortgages 396 Mortgage Mony to whom payable to the Heir or Executor who shall have the Equity of Redemption 42 140 143 155 Rent charge in Fee Mortgaged is devised then the Mony is paid the Administrator shall have it and not the Heir 162 An Ancient Recognizance not set aside to let in a Mortgage 106 Adventure in the East India Company Mortgaged is Redeemable 108 Purchase Mony Bill for the Remainder of Purchase Mony Defendant pleads it is 33 years since and never any Suit for it but the Land enjoyed and former parties concerned dead a good Plea 44 N. NE exeat Regnum 19 And the Causes of it 20 Laymen to find Security as well as Clergy-men upon a Ne exeat Regnum 20 O THE unadvanced Children by the Custom of London to bring in what they had received into Hocpoch with the Orphanage thirds after the Estate is divided into thirds and not with the whole Estate 360 Executor decreed to pay in Orphans Mony into the Hand of W. B. c. 12 What Declaration in writing of a Freeman will let in his Child to have a Customary part 183 What Mony is deposited by the Father to Purchase Lands in persuance of Marriage Articls is to be taken as Real and not as personal Estate and shall not be brought into Hochpoch vid. 50 92 Title under an Occupant demurred to 112 P INformation by English Bill proper to relieve against a Patent granted by Surprize 357 Patent not reversable by Scire facias ib. Of Perpetuities
Roberts conveyed the Mannor and Lands in question to the Defendant Tracy for payment thereof Payment of Debts and of his other debts but before that Conveyance to Tracy the Defendant Nicholas standing ingaged as Surety for the said Roberts for several of the debts the said Roberts made the said Nicholas a Lease of the premisses for Sixty years at a Pepper-Corn Rent and such Lease being made and no care taken for satisfying the debts the Plaintiffs Sue the said Roberts for their debts so to avoid such Prosecution made the aforesaid Conveyance to Tracy in Fee upon Special Trust to pay all his debts but Tracy combining with the Defendant Astrey who had procured the said Nicholas to assign his said Lease to him Notice of Trust after Notice of the Trust contrived a conveyance of the premisses from Tracy to him the said Astrey by way of Bargain and Sale Inrolled so that Astrey pretends himself a Purchasor of the premisses from the said Thomas Roberts and not under the said Deed of Trust or Lease and Assignment and pretends the Trust is destroyed the said Conveyance being not Inrolled whereas the said Deed was well executed and the Trust accepted by which the said Deed cannot in Equity be made void until payment of the said debts The Defendant Astrey insists Deed in Trust to pay debts tho' the Creditors are not Parties and no Certainty of Debts therein appearing yet good against an after-Purchasor who had Notice of this Trust That the Deed to Tracy for the payment of debts was a void Deed as against a Purchasor there being no Creditor party or privy thereto nor any Schedule of Debts thereunto annexed and that the said Conveyance was voluntary and made only between Roberts and his Wife and Tracy and the Creditors not parties thereto and that by the said Conveyance Roberts was to have all such Mony out of the premisses from time to time as he thought fit for the livelyhood and subsistence of himself his Wife and Family and that the said Conveyance to Tracy being voluntary Voluntary Conveyance and in its nature but in Trust for Roberts and Revokable by him after the Conveyance to Astrey and Roberts having exhibited a Bill against Tracy to set aside the said Conveyance Tracy surrendred the same to Roberts who Revoked it and both Cancell'd it and afterwards Roberts and his Wife conveyed the premisses to Astrey and levied a Fine thereon But the Plaintiff insists That after the Conveyance to Tracy was made he declared he would pay the Plaintiffs debts which is proved by the Plaintiff Sir John Knight The Defendant insists One of the Plaintiffs a Witness Deposition That Sir John Knight is interessed and intituled to some of the debts in question and continued a Plaintiff throughout the Cause and is not struck out of the Bill and is but a single Witness and his Evidence denied by the Defendants Answer and therefore his deposition ought not to be read This Court declared They would see Presidents where a Conveyance made voluntarily for payment of debts and no Creditors named or appearing in any fix'd certainty of the persons and with a Proviso for the Grantor to have Maintenance out of the premisses conveyed for himself and Family without limitation of how much whether such Conveyance be Revokable by the Grantor and Grantee This Court with the assistance of the Judges were clear of Opinion That the Deed from Thomas Roberts to Tracy and the Trust thereby created were made and treated with an honest Intention to pay the debts of the said Thomas Roberts and that the same was not fraudulent Fraudulent Deed or not though no certainty of the debts appear therein but the same being made on a Trust which was a good foundation and a just and honest Consideration and none of the Creditors complaining of any fraud the same ought to be taken as a good Deed and the Defendant Astrey coming in under this Deed and having Notice of this Trust and paying the debts under it ought to receive no countenance in this Court but the Estate ought to be charged with the same in whose hands soever the same shall come and decreed the Deed of Purchase from the said Roberts to Astrey be set aside and Astrey to account for the Profits c. and the Plaintiffs and all the Creditors to be paid their debts out of the said Estate Eyre contra Good al' 21 Car. 2. fo 211. THe Bill is to be relieved against a Bond of a 1000 l. Award penalty for the performance of an Award whereby possession and profits of Lands are awarded to the Defendant The Defendant insists That there was no surprize in the said Award but the said Award was by the direction of the Plaintiffs Friends and says it ought not to be set aside which if it was it would involve many Suits and insisted That the said Award is in the nature of an Agreement and ought to be performed This Court taking Notice Cross Bills about the setting aside or confirming an Award dismist and sent to Law that the Award in question was not made by the Order of this Court but that it proceeded from the voluntary Submission of the parties two Judges being chosen by themselves who declared their Opinion That they saw no cause to decree the Award to be set aside nor on the other side to confirm it or to relieve the Plaintiff but ordered both Bills to be dismist the Plaintiff electing to go to Law This was heard by Justice Tirrel This Cause came to be Re-heard before the Lord Keeper being assisted with Judge Wild who confirmed the Order above Hale contra Acton 21 Car. 2. fo 409. THat Edward Eltonhead by his Will gave the Defendant Mrs. Gilbourne 1000 l. to be first paid after his debts besides a Share out of the dividend of the Estate when as after the making the said Will the said Edward Eltonhead and Henry Gilbourne Father-in-Law to the Defendant Mary Gilbourne before her Marriage came to an Agreement for what the said Mary should have out of the said Estate and that there should be but 1100 l. and the same was to be in full of what was intended her thereout and that the said Edward Eltonhead often so declared and in his life-time paid 500 l. and after his death his Executor paid 100 l. more in pursuance of the said Agreement Devise by Will and an Agreement about a Portion not intended several Sums so as the chief Point then controverted being whether the said Defendant Mrs. Gilbourne ought to have the 1100 l. Portion and 1000 l. Legacy mentioned in her Fathers Will or that he intended to give her any more out of his Estate than the said 1100 l. The Master of the Rolls declared That the 1100 l. ought to be in full of what the Defendant Gilbourne was and ought to have out of the said Estate and decreed accordingly This Cause came