alive that he might have set all right but as the Matter now stands here it has rendred him very doubtful in the Case I confess I do believe Sir William Jones had too little Patience give me leave to say so and too much Skill to make such a Deed I speak as to the Art and Skill of framing it therefore I conceive he did not but Sir Thomas Stringer did As to the not reading of the Deed to the Duke the Defendants Counsel do object neither was the Will of 87 read to the Duke at the time of his sealing and publishing it So far is true that after it was ingrossed and brought to Sir Robert Clayton's it was not read to the Duke but the Particulars of it he had been acquainted with at the time of the drawing and so it might be as to the Deed too for any thing appears to the contrary That there was no Counterpart and that the Trustees were not acquainted with it the Answer is That the Duke did intend it as a Secret and therefore the less notice was to be taken of it and the Duke intending mainly by it an Advantage to my Lord of Bath it was thought sit to be concealed for some Reasons from the Dutchess But after all I know no such Rule in Equity I am sure none of the Precedents that I have seen come near to it that where there is a Deed for the making of which no Instructions are found no Proof of its being read to the Party at the Execution no Counterpart or the Trustees not acquainted with it that these are sufficient Grounds to set such a Deed aside in Equity I do not think any of the Precedents or all of them together and I am sure I have read them all will amount to prove any such thing The second Matter to make out the Surprize is some Considerations taken out of the Bowels of the Deed it self several Improprieties of Expression as in part of Dower and in full of Dower which are not Phrases that look like the Act of a Lawyer one well skilled in the Propriety of the Law-Dialect It doth likewise misrecite the Will of 75 that is particularly as to the Lands given to the Dutchess that they are given for Life when it was only during her Widowhood the Lands are said to be given to Mr. Greenville as if he were immediate Devisee whereas it is a Devise to him in Remainder after a Limitation to the Duke in Tail But certainly Improprieties of Expressions and Mis-recitals in Deeds are too slight Acts to avoid Deeds so made so attested so proved as this Deed in question has been They are rather and indeed Flaws and Objections that go to the Manner and Form than the Substance and shew rather want of Art in the Counsel that drew it than of Honesty or Integrity in the Deed it self besides that a Devise to one for her Widow-hood is a Devise for Life in one Sense and common Parlance though it be defeizable and a Devise to one in Remainder is a Devise to him though not an immediate one Another Observation out of the Deed it self is that here are Estates limited to the Duke's younger Sons out of Lands which he had no power to create or carve such Estates out of they being settled before upon his Marriage on the eldest Son and that is true it is so as to the Lands called Norton Disney But there are other Lands not comprized in the Settlement and all the rest that were new purchased were in his Power to settle as he pleased But the great Objection out of the Deed is this that this Deed doth in several places declare it self to be made to confirm and corroborate the Will of 75. How comes it then to pass that it should differ from it in all the Limitations except one and that in the Draught is of my Lord of Bath's own Writing and that part of the Estate is by the Deed to come to the Lord of Bath upon failure of the Duke's Issue Male only so that his Daughters are all wholly debarred To this I say what they object that there is rather a Contradiction than a Confirmation of the Will is true I am not satisfied I assure you in that which the Defendants say to it that the Confirmation of the Will is mentioned only as to preventing the Descent It is first mentioned there but I think it goeth through and is repeated more than once But that which I would observe is this that this Deed does confirm the Will in the main and substantial part of it the settling the Bulk of the Estate upon my Lord of Bath Besides the Expression of the Deed is not only for confirming the Will of 75 but also for the settling the Lands to the Uses after declared and if it doth not confirm every Limitation yet it doth agree in the substantial Settlement of the Estate It was further said that the only Limitation which agrees with the Will is that which in the Draught of my Lord of Bath's hand-writing where Lands are limited to my Lord of Bath after failure of Issue-Male with Exclusion of the Daughters which the Plaintiffs say it cannot possibly be imagined the Duke ever intended to do But I must mention what Answer the Defendants give to it They say the Duke had then 15000 l. a Year and he makes an Intercession to the King to bestow the Honour of Albemarle upon the Earl of Bath and that it might not go alone he limits 3000l a Year upon his failing of Issue-Male so that the Honour should come to the Earl and there was enough left for Daughters Now if their Valuation of the Duke's Estate be right which truly I know not it is some answer why some part should be given to the Earl only after the failure of Issue-Male But then I would observe too the Deed by this Obligation doth confirm the Will of 75 and that Will also affirm the Deed If the Will of 75 were once well as I see no colour to the contrary then I am sure all their Objections from the Duke 's contrary Intentions are all answered that he never intended to give him his Estate for if they admit that the Will was once the true Will of the Duke of Albemarle then there was once an apparent Intention in the Duke of Albemarle to give the Earl of Bath the Bulk of his Estate if he died without Issue Now as to the Variations in the Limitations of the Deed from those in the Will I think truly it stands indifferent as to one side or other For here was the distance of six Years between them and the Duke might alter his Mind it might be one way one time and another time another he might alter his Mind as to his Daughters he might after so many Years despair of Issue and so not mind the making any Provision for them He might change his Mind as to his other Kindred and
Head of Objections That this Deed is a Deed attendant upon the Will of 1675 and so revocable in its one nature as a Will would be altho it contained in it no Power of Revocation This was very warmly insisted upon by the Counsel of Mr. Monk I confess there is such a thing as a revocable Deed attendant upon a Will which is revocable that is where a Man doth suffer a common Recovery and makes a Deed subject to his last Will and Testament such or such an Use may be declared by Indenture under Hand and Seal as intended at that time of the Recovery But this Indenture after it hath declared that Use being founded upon an Assurance that was always subject to Uses declared in his last Will that Will being always changeable the Deed may be always changeable And so is the Case in Dyer 314. 6. And the Reason is given in my Lord of Ormond's Case in Hobart 349. by the Opinion of two Judges against one because the Foundation which is his last Will is always revocable But such an Indenture to declare Uses is revocable but a Feofment or a Lease and Release to Uses referring to a Will or made to confirm a Will that that should be revocable there is no Colour nor any Authority of Law for it The fourth Head is That there is an implied Trust that the Duke might charge this Estate to the full Value therefore in Equity he might dispose of the Land This Objection doth arise upon a variance supposed between the ingrossed Deed and the Paper-draught For it should seem that one of the Sheets in the Paper-draught is cut just where this Trust is declared and so they would presume it a general Trust which would subject the whole Estate to the Duke's disposal But as to this Matter it is sworn by Thompson who ingrossed the Deed that he ingrossed it by the Paper not cut and did ingross it truly according to the Draught and he was believed by the Jury so to have done Therefore I suppose it was cut since and if it were the Question is by whom it was cut Truly I think it not worth the trouble of enquiring after that but it is most probable it was not cut by those to whose disadvantage it would turn to cut it But here doth arise a considerable Objection By the Will of 75 there are 20000 l. Legacies given and here is a Trust that doth subject this Estate to the Legacies of that Will of 1675 is revoked by the Will of 1687. Shall then the Earl of Bath hold this Estate free and discharged of any Legacies by the last Will I must confess this was objected on one side but not debated on the other side because they that were of Counsel for the Earl of Bath thought it did not concern this Question now in debate That they said might be a Question another Time between my Lord of Bath and any Persons that may come here to have any Legacies given them by the Will of 1687 if the Personal Estate will not answer I cannot say positively but they may be payable out of this Trust though I give no Opinion in the Matter it not having been debated and so I have not considered it But sure the consequence of that if it should be so would not be what this Head of Arguments I am upon would infer That if the Duke might charge the Estate with Legacies therefore he might dispose of it for he hath bound up himself by this Proviso not to dispose of it but under such and such Terms And that brings me to the last Head Whether this Will of the Duke of Albemarle made in 1687 and so solemnly done be a Revocation in Equity though it do not strictly pursue the Circumstances of the Power I know not any Rule more clear in our Law-Books than this that all the Circumstances prescribed and required in a Power of Revocation must be observed to make it a good and effectual Revocation So is Scroops Case so is the Case of Kibbett and Lee. There is indeed a favourable Judgment to be given in expounding Powers but both those Cases still agree that all the Circumstances must be strictly observed It may be said then they must be observed in Law but in a Court of Equity it makes another Case For when a Man hath a Power over an Estate those Circumstances are only a Guard upon himself that he may not be surprized into a sudden disposition of it But when deliberately and solemnly he hath done an Act whereby he disposeth of this Estate but there wants some little Ceremony or Circumstance such as the not tendring 12 d. or the like a Court of Equity ought to supply such a Defect to support his solemn Intention to dispose of it For plain it is he is not surprized into this Act and so the Reason for those Circumstances does fail and they need not be strictly observed This way of Arguing may seem specious in a Court of Equity I confess but really I think I am able to give a very plain Answer to it and that from the Nature of Powers of Revocation It is certain no Conveyance at the Common Law could have a Power of Revocation annexed to it As a Feoffment and Livery of Seisin and that because the Law would not admit such an Absurdity that a Man should give an Estate absolutely to another but yet reserve a Power to recal it from him at his Pleasure It is such a repugnancy as the Common Law will not permit But a Man might have done this at Common Law he might have annex'd a Condition to his Feofment that if he tendred 12 d. to the Feoffee or his Heirs he might enter upon the Estate so that the Estate which was Devested out of him by the Livery of Seisin might have been revested by a performance of the Condition and Reentry So it stood at Common-Law But after the 27th of H. 8. for transferring Uses into Possession Uses became more pliable than Conveyances at Common-Law wherein this Matter and then Powers of Revocation first came in use and fashion Not but that it is as repugnant to a Conveyance after the Statute as it was before for certainly it is repugnant to give an Estate away and yet have a general Power over that Estate But a Power of Revocation was let in as a Condition and would work as a Condition but whereas the performance of a Condition at Common-Law would not work a revesting of the Estate without a Reentry now the performance or execution of the Power doth transfer the Estate to the new Uses or revest the Estate in him that had the Power without any Reentry But still there is now a necessity of the Powers being performed as there was of the Conditions being performed at Common-Law for it is in the nature of a Condition and no more So is Inglefield's Case 7 Co. 39. There was a voluntary Conveyance made with a
As to this Case I would observe first this is not a Case upon a Power of Revocation to devest an Estate nor a Performance of a Condition But further here are Instructions prepared and it went as far towards the Execution of the Power as could be till an Impediment came in the way by the Act of God in the Death of the Party Now I agree where there is an Impediment by the Act of God or Fraud or Default of the Party who claims by the Deed Equity may interpose But that doth no way come up to the Case in Question Then there is the Case of Dey and Thwaites which was lately in this Court Thwaites makes a Settlement to the use of himself for Life and afterwards to such Child and Children and for such Estate and Estates as he should by any Writing under his Hand and Seal testified by two credible Witnesses limit and appoint He afterwards makes a Will and has but two Witnesses to it so that they did not cite the Case right that said there were not two Witnesses but two Witnesses are not enough by the Statute to make it a good Will and thereby he giveth a Rent of 100 l. a Year to such a Child and dies Now one great Question was Whether the Power being to limit Estate or Estates he might limit a Rent out of those Lands It was held in Equity he might and truly I think that he might at Law There is I confess an Opinion against it in the Case of Brown and Taylor where there were three Judges against one But really I think it is good at Law A second Question was Whether this being void as a Will by the Statute should be yet a good Declaration of the Trust and an Execution of the Power And I think the Court of Equity did very well in decreeing it to be Good For tho it were not effectual in all Points as it was intended as a Will yet it was a Writing which had all the Circumstances required by the Power and therefore I see no reason to question whether it were Good The next Case is the Case of Ward and Booth and that stands thus Sir Thomas Brereton made a Settlement with a Power of Revocation by a Writing under Hand and Seal before two Witnesses and he in a Passion one day tore off the Label with the Seal but afterwards repented Delivered it to the Trustees to be preserved to the Uses And enquiring whether what he had done amounted to a Revocation and being advised it did not he was very well satisfied This Cause came to be heard before my Lord Nottingham and adjudged no Revocation it appearing there was a continued Intention not to revoke But I desire to read part of the Ground that Decrce went upon for that justifies what I said in case where there is a Disability or an Impediment by Fraud this Court may relieve though there be a formal Revocation There is but one Precedent more that I shall mention and that I take to be directly for the Earl of Bath It is the Case of Arundell and Philpott Mary Philpott being a Widow seized of Lands made a Settlement upon the Defendant with a Power of Revocation upon the tender of a Guiney She afterwards makes another Settlement upon the Plaintiff but without any proof of the tender of the Guiney Upon a Bill suggesting her Intention to revoke the Plaintiff could not prevail in this Court to set aside the first Settlement but was dismist to Law and ordered to try the Title within a Twelve-month whether Revoked or not Revoked And there were afterwards a Trial and the Tender of the Guiney did happen to be proved and so the Power was well executed at Law But this Court would not interpose to set it aside as a Revocation in Equity upon the Intention only without a proof of the due Execution And upon the whole Matter I conclude that in a Court of Equity there cannot be a Revocation of a Deed to which a Power to revoke is annex'd but what is pursuant to that Power unless there be either an Impediment from the Party that claims by the Deed or a real disability to execute according to the Circumstances And I think neither of these are in this Case nor are any of those Matters alledged of Surprize Circumvention Concealment or the like any good grounds to set aside this Deed if they were proved which I think there is no pretence of Lord Chief Justice TREBY I Am of the same Opinion with my Brother Powell I shall state the Case as it stands upon this Deed and Will The Will was made in 1675 the Deed in 1681 and shall take notice as I find there was much use made of it on one side of what the Expressions are in the Will and somewhat of what Deficiencies there were of Expression in this Deed. In 1675 the Duke of Albemarle made his Will and by that Will he declares That in respect of my Lord of Bath's being one of his nearest Kindred and out of Gratitude due to him for many Acts of Friendship and good Offices done to him and his Family his Will was that he should inherit all the Parts of his Real Estate not therein otherwise disposed of and therein he desires the King to grant to the Earl of Bath and the Issue Male of his Body the Title of Duke of Albemarle and that his eldest Son might bear the Title of Lord Monk And this was intended in Trust to pay all his Debts and certain Legacies in the Will He therein gives a Legacy of 1000 l. to Henry Monk not the Father of the Plaintiffs the Monks who it doth not appear was any ways related to him Six Years after in 1681 this Duke Christopher makes a Deed and in that Deed recites this Will true as to the Date but mistakes it in several Particulars This Deed settles the main part of the Estate after the Duke and Dutchess their death without Issue by the Duke upon my Lord of Bath part of it immemiately after his own death without Issue other parts upon Sir Walter Clarges and Mr. Greenville And it has been observed that almost all the Limitations of the Estates in the Deed differ from those in the Will at least in express Terms if not in very Substance This Deed also sets forth the Grounds why the Duke made it and it is to this Effect He doth declare he was so unfortunate that his next Heir at Law was descended from a Regicide and therefore I would observe it was not only to confirm the Will as they would have it but for preventing so dishonourable a Descent of the Estate which he owed to the Bounty of the Crown and for conveying and settling and assuring the Lands to the Uses thereinafter declared and confirming and corroborating that Will which he did not intend to revoke and to prevent any Claim either by the Heir or any pretended surreptitious Will which
therefore might in these Particulars vary in the Deed from the Will of 75. But I would still have this observed that in substance they do agree he doth preserve the same Favour and good Intention for my Lord of Bath to give him his Estate as his nearest Kinsman If then these Limitations in the Deed were pursuant and agreeable to the Duke 's then Mind it is no matter if there be any such Variations or Alterations from what was in the Will and that it was agreeable to his Mind then I shall by and by take notice of some things that occur in this Case and which seem to satisfy me in it that this was his Intent For I did observe that one thing they insisted upon to shew it was by Surprize was that this was contrary to the Intentions of both the Duke of Albemarle and the constant Series of Purposes in the Family and they undertake to give Instances of it The Defendants Counsel say that his Intention was to give his Estate to the Earl of Bath who was his near Kinsman to whom he had very great Obligations that my Lord of Bath was concerned in that great Action of Restoring the Royal Family which was the Raising of his own that he was a constant Friend of Duke George and his and his Sons chief Counsellor and Adviser and that the Family were under great Obligations is and must be admitted both from what is in the Deed expressed and what is otherwise proved But the Plaintiffs say no they had no such Intention neither one or other of them and particularly Duke Christopher had none neither before the making of this Deed nor after Duke George he makes his Will in June 1665 wherein he gives all his real and personal Estate to his Son and nothing at all to my Lord of Bath I did look into the Will which is very short and there is nothing given to any Body but his Son That is the whole of the Will Then in the Year 1669 is the Settlement made by Duke George upon his Son's Marriage and there is nothing settled upon my Lord of Bath not so much as a remote Remainder In 73 Duke Christopher makes his Will and therein gives great Legacies to the Dutchess but none to the Earl of Bath These are Instances before this Will and Deed but the Answers given them are these which make me not satisfied with the Plaintiffs Objection or Proofs of his never Intending to give my Lord of Bath his Estate First as I said Duke George's Will is very short and takes notice of no Body but his Son and as he gives nothing in it to my Lord of Bath so neither doth he to any Body else and that very Devise is void because it was to the Son and Heir to whom it would without that have descended and it signifies very little to their purpose being in the same Year with King Charles's Sign-Manual at his Request to promise the Earl the Dukedom upon failure of Issue-Male As to the Marriage-Settlement in 1669 there is indeed nothing settled on the Earl of Bath so much as in remainder but in such Settlements Men usually do provide only for the Issue of that Marriage and so leave the Disposition of Remainders to Subsequent-Settlements As to the Will of Duke Christopher in 1673 at that time they say he was but a Minor of 20 Years of Age and it was only to dispose of his Personal Estate for as to his Lands if he had made any Devise of them it had been void and the personal Estate was at that time about 60000l But within a Year or two after that when he came of Age is the Will of 75 made and there is a mighty liberal Gift made to my Lord of Bath and pursuant to his Father's Desire and King Charles's Privy-Seal doth he make that Request for the Dukedom for my Lord of Bath And it must be observed upon all these things that as there is nothing given to my Lord of Bath in Duke George's Will and Settlement nor in Duke Christopher's Will in 1673 so nor is there any Lands in either of them nor in the Will of 1675 or Deed of 1681 given to Thomas Monk the Father of the now Plaintiffs so that that Objection is much stronger against them than against my Lord of Bath Now I do not find any Proof of a Provocation or Cause given by my Lord of Bath to make the Duke totally change from this Intention to give him the greatest part of his Estate and 〈…〉 put him quite out of his Favour nor doth it appear he was so here were several Letters read there have been Copies of them brought us and I have look'd upon them against these Letters it has been observed that there is no notice taken in any of them of this Deed but there is some of the Will of 1687 while the Duke was in Jamaica about the Death of Colonel Monk I confess I cannot say there is any one Letter that speaks of this Deed by the Name of a Deed but there is one or two that hath an Aspect upon it and very near respect to it and cannot refer to any thing else particularly that which was written relating to my Lord Lansdown when he was going to travel and another about his Marriage wherein he takes notice how much he was concerned in him even next to his Father himself as he very well knew and that he wrote so much about him for Reasons best known to the Earl himself this seems to point at some Conveyance and aims at this Deed to my thinking directly They have made another Objection That the Duke never intended to leave any part of his Estate to Sir Thomas Clarges because he was under the Duke's Displeasure upon account of something he took ill from him but that receives an easy Answer What is limited to him is but a Remainder and that of no great Estate neither Besides that the Evidence of the Duke's being displeased with Sir Thomas is but a hearing by a third Hand but I find no Displeasure proved at all that was conceived by the Duke against my Lord of Bath to the last Come we then to the time of making this Deed and let us see whether the Duke did really intend what the words of this Deed do import and that I think is made evident by Proofs that have not been answered or contradicted The Deed takes notice of the very great and many Acts of Friendship and Kindness received by him and his Family from my Lord of Bath and it is proved the Duke declared it ought never to be forgotten nor could he ever make him sufficient Amends It should seem he had procured his Father's Garter for him when he might have had it himself he thereupon tells Mr. Prideaux that he was setling or had setled his Estate upon my Lord of Bath which must be much about the same time that this Deed was made One of the
not long after Mildmay's Case and the Case in Rolls Abd. 1 part lit Charge 378. But because says the Order neither the Party nor his Counsel did then know but such Power was warranted by Law though by late Judgments they were found to be void and so it was impossible to them to prevent it the Court did relieve in this Case to make good the Lease and it is there said that the elder Brother who would avoid the Lease was an unreasonable Man and this was a Provision for a younger Child which is not our Case either the Counsels Mistake of the Law nor a Provision for a younger Child The next is 44 o Eliz. the Case of Ferrers and Tanner A Man deviseth Annuities out of Lands to his half-Sisters and gives the Land to his half-Brother who makes over his Estate to prevent their being seized of the Rent in order to distrein and the Court after some time and upon sight of a Precedent did relieve the Devisees Here I would observe how difficult it was even for this Court to do that For they say the Heir that had the Land did promise the Devisor before his Death to perform the Will and that was a Deceit otherwise the Devisor might before his Death have done it by a Conveyance or granted the Land with a Condition to do such an Act or permit such a Thing And that he did consent afterwards before the Master of Chancery to do it I will not say but that this Court might have declared this Payment without these Circumstances nor that these might not make the Case somewhat better Indeed in the short Print of the Case in Moor 626. pl. 859. there is no Reason but the Resolution only The next Case is in the Year 1655 the Case of Hamilton and Maxwel in this Court which in short was upon very good reason because it was a Provision for a younger Daughter and that is urged on all hands to be a good Ground of Equity and he declared that his elder Daughter was otherwise sufficiently provided for Another Case is that of Bowman and Yates and that is about a Covenant for levying a Fine for raising a Rent out of Lands which was indeed defective at Law but decreed in Equity to be paid and satisfied but if it be look'd into I think will not appear very pertinent to this Case it being only to support the Intention of an Agreement upon Marriage This was 12 o Car. 2. The next is the Case of Wallis and Grimes 19 Car. 2. which was this Sir Thomas Grimes the Grand-father makes a Conveyance in Trust for Paiment of five hundred Pounds to younger Children the Heir makes a Mortgage without notice and this Trust is endeavoured to be set up against the Mortgagee but the Court would not permit it But this comes not near our Case for a Mortgagee is in nature of a Purchaser Then 20 Car. 2. thence was Pitt and Potham's Case in the House of Lords There this Court did relieve because it was a plain Intent the Land should be sold and there was only a want of naming the Person that should sell and the Law would help that He that hath the Land shall do that Office and that was next door to a Provision for Children it being for a For the Case of Smith and Ashton besides the Answer my Brother Powell gave to it has also this flat Answer to be given that it was a Provision for Children that was the next Case in point of time Then comes the Case of Brisco and Peters 28 o Car. 2. I have as carefully as I can perused that Case but cannot really observe how it is made use of in our Case And it is very much to be considered that it is no Rule between two voluntary Conveyances how far a voluntary Conveyance shall be fraudulent against a Purchaser The next Case is that of Thwaytes and Dey which hath also had a full Answer given to it already It was doubted whether it was a Seal to it but the Court seemed satisfied with that and all the remaining Question was Whether a Man making a Conveyance and reserving a Power to make any other Estate could charge that Land with a Rent for a younger Child and the Court held he might and I think it a good Decree These are the Precedents that are brought on the Plaintiffs side there are but few brought on the Desendants part but two that I think are very material the one is that of Ward and Booth which hath been opened and applyed by my Brother Powell but I would observe from what he quoted out of the Decretal Order in that Case that it doth very extraordinarily declare the Limits of this Court's Proceedings in such Cases as these Here was not a formal Revocation but a clear and express Intention to revoke That doth not appear in the present Case There should be I agree Relief in such Circumstances if there were Fraud in the Party if there had been any Accident to render it impossible to execute the Power in all Formality But here is neither Fraud nor Accident and therefore by the Reasons and Rules in that Case there can be no Relief in this Case The other is Arundel and Philpot's Case and that is so very express an Authority for this Court 's leaving the Determination to Law that nothing can be more They there say where it is a voluntary Conveyance against a voluntary Conveyance you must try and decide the Matter at Law and it did fall out in that Case that there was no need of a Court of Equity to interpose for upon the Trial it did fall out to be proved that there was a due and legal Execution of the Power that there was a Tender of the Guinea As to the Matter of the General Trust I need say no more than this whether that would avail any thing upon a Controversy between the Legatees and my Lord of Bath I cannot tell but I am sure it is not material at all as this Case now stands Yet methinks as to a General Trust that it cannot be for that were to make the Duke use all this Solemnity in making this Settlement to no purpose and would render this Power of Revocation very useless and idle The use of this Power was because he had put the Estate out of him both in Law and Equity and so there could be no General Trust or Means to bring it back again without a due Execution of the Power There are two or three small Objections more that I shall but mention and conclude First they say several Grants will be avoided if there be no Relief against this Deed. That is some Leases some small Annuities to Servants and a Grant of 100 l. to the Duke's Natural-Son This is all Now whether it is not reasonable to imagine the Duke thought that the trusting the Earl with so great a part of his Estate he would have more Honour and
so you cannot imagine that the Duke was at all surprized therein but that when it was executed it was according to that design and purpose Next Sir Thomas Stringer who was the Duke's Counsel to Peruse and amend the Draught as appears by his own Hand sworn by his Son and his Man To imagine then that a Man should be surprized into the making of a Deed when his own constant Counsel doth Peruse and Amend the Draught and the Counsel he used particularly to advise with is by at the Execution and a Witness to it is to say a Man was surprized when he had the Advice of Counsel about it and they were at his Elbow at the Executing of it Now I must confess I am to seek and do not well know what is a Fraud in Equity that shall avoid a Deed which is a good Deed at Law The Case of Bodmin and Wynne and Roberts mentioned by my Lord Chief Justice and my Bother Powell that spake the last day this Cause came on is I think a Case of great Authority in a Court of Equity because it had a great Transaction both in this Court and in the House of Lords before it came to a Resolution and Result I shall put the Case in short as it was here in Court Mr. Roberts Son to the late Earl of Radnor married the Daughter of Mr. Bodmin Bodmin had made a Will and given his Lands to the Children of his Daughter in Tail and after this he makes another Will whereby he gave one part of that Estate to Mr. Wynne and another part to a remote Kinsman It did most plainly appear in the Depositions of this Case that this Will was obtained by great Fraud and Circumvention that is Wynne got into his Acquaintance by pretences of some little Offices of Friendship and Kindness he got him away from his Friends and Relations and during his Sickness he did by false Stories withdraw his Affection from his Daughter kept him in secret Places that no Friend might come at him and while he was so secreted and wrought upon was this last Will made whereby he gave his Estate away from his Child to a Stranger All these pieces of Practice were Apparent before the Court at the Hearing of this Cause which was heard by my Lord Clarendon Assisted by who all Unanimously Declared that this was a VVill obtained by Fraud and by Practice and that there was great Reason if they could to relieve against it But they searched Precedents and could find none that would come up to the Case Thereupon for difficulty there was Advice taken about it in the House of Lords and there upon Consideration was an Order made by way of Advice to the Lord Chancellor that he should proceed to do Justice to either Party though there were no Precedent found to govern the Judgment Afterwards this Cause came to be heard again 12 June 1666 when my Lord Chancellor being assisted by my Lord Chief Justice Bridgman my Lord Chief Baron Hales and Mr. Justice Raynsford did declare That there could be no Relief though it was said before it was apparently a VVill obtained by Fraud and this to the Prejudice of the Heir at Law who had never Offended or given him any Cause to Disinherit her So the VVill was dismissed but the Parties complaining in Parliament were Relieved by the Legislative Power by an Act of Parliament Now besides that there was Evidence of ill practice in that Case but in this I say I find none this is so great an Authority and does shew the wariness of a Court of Equity that I think none can be greater Equity would not relieve them but they were put to seek their Relief by a Law made on purpose But I will suppose now in this Case that when my Lord of Bath did understand the Kindness of Duke Christopher and knew of the Will of 75. and knowing the Incoastancy of the Duke's Temper and other Circumstances in the Family and the Revocableness of a Will should have applied himself to the Duke and told him ' It is true you have been so kind as by your Will to bequeath me a great part of your Estate but you may be prevailed with on a sudden or by some Artifice or other to alter this Will of yours and you may be surpriz'd into the doing of it pray will you make a more solemn Settlement to confirm this Kindness by a Deed And had prevailed to get him to do it Suppose I say he had done so tho I find no Evidence in this Case of any such thing suppose he had been employed in the whole transaction of such a Deed is this unlawful or is it any harm No it is very innocent he might lawfully do it and if he had opportunity he might prudently do it But I say I find not so much as that in this Case but this Deed was fairly obtained from the Duke whether it was by the advice desire or interposition of my Lord of Bath doth not appear or whether it were the Duke 's own voluntary Act though I think it is not material whether it was the one or the other But it hath been said That when Duke Christopher did design to alter his Will and for that purpose sent to my Lord of Bath to bring the Will of 75. which he had in his Custody my Lord of Bath should have told him of this Deed too And therefore the concealing of the Deed of 81. from D. Christopher is a kind of fraud and not making a discovery of it then he shall not now take advantage of this Slip and have the Estate by this Deed because if the Duke had considered the Proviso in the Deed he would have taken eftectual care to have had a good Revocation in all the Circumstances And that he did not so revoke it must be imputed to the concealment of this Deed from the Duke by the E. of Bath So was the Case of Mr. Clare at the Suit of the E. of Bedford which was opened the last Term. A Man that stands by and sees a Cheat which might have been prevented by his discovery shall not take advantage of his own wrong and profit by such concealment But doth it appear in this Case that my Lord of Bath knew to what purpose the Duke sent for his Will or how or in what manner he would alter the Settlement of his Estate Why must he be bound to take more notice of this Deed to the Duke than the Duke himself It was the Duke's own Act and not my Lord of Bath's and why should he give him notice of his own Act The Rule of Law when one is obliged to give notice to another is this When the thing lieth more in the Knowledg of the one than the other and he cannot come to the Knowledg but by his means But when one Man hath reason to know and doth as much as the other he is not bound to give notice
to be set aside by this Will I have nothing further to consider in this Case nor are we to make Presumptions and then to make Inferences from thence We are to judge upon the fact as it appears in the Depositions which are plain and clear and upon these we are to determine our Opinions and nothing else that is dark and that we cannot come at further than by conjecture There have been said in the Cause which I omit on purpose because I would mention only those that are most material Upon the whole matter I am of Opinion there ought to be no Relief in this Case against my Lord of Bath and those that Claim by the Deed of 81. LORD KEEPER I Shall first take Notice how these Causes stand in Court and who are the Parties in Judgment before the Court. Here are Three Bills One in which the Dutchess of Albemarle was Plaintiff and since the Inter-Marriage my Lord of Mountague is also Plaintiff against my Lord of Bath and others Defendants and this Bill sets out the law Duke of Albemarle's Marriage-Settlement and his Will of 87 with the Solemnity both of preparing and executing it and doth complain that the Earl of Bath sets up another Will and a Deed in 75 and 81 whereby he seeks to frustrate the Disposition of the Duke's Estate by the Will of 87. And the Bill doth alledge That if any such Deed was ever executed by the Duke which they have reason to doubt and do not admit they believe the same was imposed upon the Duke by surprize and not fairly obtained and by fraud were concealed from the Duke and ought to be set aside in Equity tho' the power of Revocation in the said Deed were not strictly pursued because his intention appears to revoke it and dispose of the Estate otherwise by making the Will in 87. And if it should not be set aside then the Dutchess ought to have the Lands limited to her by that Deed and the Rent-Charge of 2000 l. a year over and besides the Joynture settled upon the Marriage and confirmed by the Will of 75. And the Will of 87 ought to stand good as to the Personal Estate and Legacies therein and so prayeth to be protected in the Enjoyment of the Personal Estate and Specifick Legacies given to the Dutchess discharged of the Duke's Debts There is another Bill brought by Christopher and Henry Monk which complains of my Lord of Bath and the others setting up this Will of 75 and Deed of 81 and I think in the same Words or to be sure to the same effect with the other Bill and prays that both Will and Deed may be set aside and the Plaintiffs may enjoy the Benefit and Estate given them by the Will of 87. Then there is a Third Bill of my Lord of Bath Mr. Greenville and Sir Walter Clarges in which they set out the Will of 75 and the Deed of 81 and the continuance and constancy of the Duke's Friendship and Trust to the Time of his Death and complain that the Dutchess and other Defendants set up the Will in 1687. and do pretend that amounts in Equity to a Revocation of the Deed of 81 and his Bill prayeth that the Personal Estate may be applyed to pay the Duke's Debts in discharge of the Real Estate which they pray may be confirmed to the Plaintiffs in that Suit and a discovery of the Writings about the Real Estate and that they may be brought into Court and delivered up to the use of the Plaintiffs These Causes were first heard before the Lords Commissioners so long ago as the 8th of July 1691. then was there a Decree made That the Personal Estate should be accounted for and applied for the payment of the Debts but before the Court would deliver any final Judgment as to the Real Estate they ordered a Tryal at Law to be had in an Ejectment wherein the Dutchess and Mr. Christopher Monk were to be Lessors of the Plaintiffs and the Earl of Bath Mr. Greenvill and Sir Walter Clarges to be Defendants to try the Title to the Real Estate And the Plaintiffs were only to insist upon the Will of 87. and the Deed of 81. so as that the Defendants Right upon the said Will and Deed might be fairly tryed And all Exhibits were to be left with the Master three weeks before tile Tryal for either side to inspect take Abstracts and Copies of as they should think fit According to this Order in the Michaelmas-Term after there was a Tryal at the King's-Bench-Bar and upon that Tryal a Verdict past for the Defendants in the Ejectment the Earl of Bath c. upon the Will of 75. and Deed of 81. After the Tryal these Causes came to be heard again before the Lords Commissioners about a year and a half since at that time there was no complaint made of the Verdict nor any Motion for a new Tryal But after the Councel had been heard several days the Court took time to consider of their Judgment and before Judgment one of these Causes abated by the Marriage of my Lord Mountague and the Dutchess and by that and other Accidents the Cause hath been delayed till the late Hearing before the Court assisted by my Lords the Judges who have delivered their Opinions And now the Causes stand for the Opinion of the Court upon what appears in the Pleadings and Proofs and what has been so largely insisted upon on either side Upon which the Verdict being at Law for the Defendants I must take it as my Lords the Judges have already declared not only that these Deeds of Lease and Release of the 15th and 16th of July 1681. were duly sealed and executed by the late Duke of Albemarle but also that they stand still in force and unrevoked at Law for if they had not been so the Verdict could not have been as it was for the Defendant Therefore as that must be taken for granted that these are good Deeds in Law the only Matter at present for the consideration of the Court is Whether upon the debate of this Cause there be sufficient Ground in Equity for this Court to interpose in the Case so as to set aside these Deeds as not good in Equity or revoked by the Will of 87. or no And I shall as to the Matter of the Question conclude my Opinion the same way with my Lords the Judges that have delivered theirs before And with respect to this Matter I shall here consider who the Parties are in Judgment before the Court and what hath been alledged as Reasons and Grounds to induce the Court to set aside this Deed in Equity Here is no Purchaser in the case no Creditor no Child unprovided for but all the Parties claim by voluntary conveyances on the one side and the other so that at least they stand equal or if there be any circumstances as to the Persons that have any weight it is on the part of my Lord
Deed that besides the confirming of the Will he did mainly design the settling of his Estate Then let us consider the differences in point of Limitation between the Deed and the Will First They say in the Deed There is an Estate limited to the Duke for Life which is not in the Will that is proper in a Deed but would not have been absurd in a Will which is not to take effect till after his death Then for that Variation in the Limitation to the Dutchess it is not material in point of Value but for duration of the Earl and it was a reasonable thing so to make it for since he did intend to charge his real Estate with great Legacies it had been impossible to have sold any part of it that had been under a Rent-Charge of 6000 l. a Year and therefore it limits Lands of that Value As for the Limitation of Norton Disney which indeed is to the advantage of my Lord of Bath and is the only variation from the Will which is so for with respect to the Essex and Nothern Estates my Lord has but a Remainder after failure of Issue in General but in this it is after failure of Issue Male But then it is to be considered that the Honour would fail upon the Duke's Death without Issue Male and he did intend and desire that the Honour of Duke of Albemarle should come to my Lord of Bath His Father had gone so far in it as to procure a promise of it under the Sign Manual by K. Charles the 2d And at the same time he had an Estate of 15000 l. a Year and then it became him well that such a part of the Estate should go with the Honour As to that Objection that thereby there was no provision made for Daughters it were indeed a very great one if indeed there were no provision at all for them But it means no more than that if he left no Sons there would be an ample provision out of the rest of his Estate for Daughters And so in effect it is upon the Marriage-Settlement and the Will of 87. So that if it be an Argument of Surprize as to the one it is the same as to the other Then for that provision that is made out of Rotherhith and Norton Disney for the third Son it must be admitted that as to my Lord Duke's mind in the matter it would be ineffectual but there can be nothing infer'd from thence but that there was a great neglect of looking into the Settlement But that will be no ground in Equity to relieve against this Deed for if it should be so how many Settlements must we set aside upon Mens setling that over which in part they had no Power of making such disposition because the persons concerned in drawing the Settlement did not take sufficient care in every Particular to pursue the Power he had who makes the Deed. Besides there is the same mistake in the Will of 87 in relation to Potheridge where the Barony for Mr. Monk was to be fixed it being by a Settlement in King Charles the first 's time so setled in Tail that it could not or was not legally to be disposed of by Will Indeed it was said that there were some Articles made with Pride about that matter to carry the Estate according as the Duke should direct But those Articles cannot answer the Objection for they were made three Months after the Will and then they were made with a wrong Person and so signify nothing It has been objected That this Deed pretends to be for securing the Legacies in the Will of 75 but defeats them That is a Mistake in the Objection for it confirms the Will certainly as to the Legacies and doth create a Trust for performing and paying them indeed by a subsequent Act the Will of 87 there may be an Alteration made but that is no Argument against this Settlement itself There was another Observation made and that was That the Power of Revocation was unreasonable especially back'd with such an unreasonable Covenant not to revoke But as to that it is to be considered what the Design of this Settlement was he had made his Will before but he thought himself unsafe under that Disposition he was under apprehension of being applied unto and importuned to dispose of his Estate otherwise than he had a mind it should go therefore he intended this Settlement as a Guard against any Surprize of that kind and that being his Intention if it had been only a general power of Revocation it had been no more than what any Will or subsequent Act done by him would have effected but that had not answered his meaning And so as to the last Covenant in the Deed which they call the Derogatory Clause whereby the Duke covenants not to revoke the Will otherwise than as aforesaid I take it that doth import no more but that as to the preceding part of the Deed he guards himself against Surprize as to the real Estate so he doth here as to the personal Estate And tho' it prove ineffectual at Law that is not material as to the Intention of the Duke The last Observation upon the Deed is the penning it which is an Objection that is to go through the whole Deed but this Objection goes further than the point for which it is alledged for if it prove any thing it proves it to be a false Deed. But for this I do not find it so much as suggested that this Deed was drawn by Sir William Jones my Lord of Bath indeed says that it was left to the Care and Conduct of Sir William Jones but as to what appears he was onely concerned in the Proviso for it is very good reason to believe when he says I approve of this Proviso he did not refer his Opinion to any other part of the Deed. And indeed any one that knew or remember him will think that he concerned himself with no other part but what he set his hand to the approbation of I have taken notice of these Observations as Arguments urged by the Counsel which taken altogether should induce their ground of Equity from a Surprize in obtaining this Deed but when they are severally considered they seem not to be of such weight as is contended for But if the Obligations had been more in number or of greater consequence yet let the Deed be never so ill drawn and the Mistake and Mis-recitals never so many and the differences of Limitations in the Deed from those in the Will never so many too yet if this Deed were really executed by the Party all this will not be a sufficient ground in Equity to set aside this Deed. And the Counsel for the Plaintiff were well aware of this and therefore they go to other Circumstances out of the Deed to shew this Surprize and as far as I can observe the Objections upon this point are these That there is no Proof
of my Lord of Bath It doth plainly appear there was a most particular Friendship and mutual Confidence between them in Matters of the Highest Nature and Chiefest Concern Nay that this proceeded so far on my Lord of Bath's side in Duke George's time that he prevailed with King Charles the II. to promise under the Sign Manual and recommend it to his Successors to Create my Lord of Bath Duke of Albemarle if here were a failure of Issue by the Duke Then that this Friendship did continue between Duke Christopher and my Lord of Bath is plain beyond all Controversy for it began upon a very good Foundation That is Whereas the Garter should have been given to the Earl of Bath he prevailed to have it returned to the Young Duke and it continued so much all along that there was nothing of Moment relating to the Duke's Affairs in which the Earl was not mainly concerned And all this is proved by a Series of Letters continuing down from the Death of Duke George to the Death of Duke Christopher In 74 he sends him Word he had pursued his Advice and his Advice should always be very prevalent with him In 75 he tells him he expected to see him with great Impatience because he was not able to go on in the Regulation of his Family without his Assistance and Advice that he had finished his Will and would make all more Perfect when he came to him It should seem his former Will was trusted in my Lord's Hands and when that was returned or brought up in a few Days after this Will of 75 is made and by that all the Estate or the main of it is given to my Lord of Bath and it was the first Will I think that he made after he came of Age and had any Power to dispose of his Estate in Land and thereby as I said he Deviseth the bulk of it to my Lord of Bath He always desired as the Will declares That in case he had no Issue the Earl might succeed him in his Honours and Estate as well out of true Affection to him as his nearest Kinsman on his Father's side as out of due Gratitude for the many Acts of Kindness and Service done by the Earl beyond all the rest of his Kindred and Friends upon which he humbly desires his Majesty to confer the Dukedom upon him and that the Eldest Son of the Earl and so successively the Eldest Son of the Family should be called Lord Monk to preserve his Name and Honour in Memory of his Father and of himself There cannot be Words that express more Kindness and Respect and intention of Advantage than are here used There was an Attempt by Proofs in this Cause to shake the Credit even of this very Will but when the Counsel on that side came to speak to it they could produce no proofs that would at all come near it It is plain then that at this time no Man could have more Kindness for another than the Duke had for the Earl In the Year 78 there appears the same sense in the Duke of the Earl's Friendship by his Letters and the Obligations of Gratitude he had to him That he had no Friend in whom he could confide but himself and desiring him to come to assist him in the Management of his Affairs That his Kindness and Friendship was never to be forgotten without the Highest Ingratitude All this is a sort of Evidence against which there is no opposition to be made so it also continued to the Year 80. when he sent him word of a Servant's death and desired him to secure his Papers and Accounts Thus it stood to the time of making that Settlement and while the Duke and he were upon such Terms with one another it was no strange thing that he should make such a Deed as this and the manner both of preparing and executing it seems far from having anything of surprize in it Then the next thing that hath beeen urged was that this being a Settlement under a power of Revocation which he intended to make use of it was Secreted and Concealed from him so that he could not know what his Power was and several Cases were put where a Man in such Circumstances knowingly suffers a Purchaser to go on with his Bargain he shall not have any Advantage by such a Concealed Settlement Those Cases were all admitted to be good and particularly that mentioned by Mr. Baron Powell and my Lord Ch. Just Treby the Case of Mr. Clare And I think truly I need go no further than to say That there is no Resemblance between that Case and this That is where a Purchaser is concerned and the Person that conceals the Deed suffers the Purchaser to proceed without giving him any notice If indeed there had been a full and clear Proof that the Duke had a real intention to Revoke this Deed if he could have known what he was to do in order to it and had been hindred by the Fraud anâ— Contrivance of any Person concerned in it in point of Advantage and if by such Concealment it was impossible for him to know the true Circumstances of his Power that would have made a different Consideration in a Court of Equity but there is no Proof that these Deeds were ever in the hands of my Lord of Bath till some little time before the Duke went beyond Sea when the Duke delivered them to him For as to Aleman's Deposition that was but a delivery upon the Execution and not a delivery for Custody And my Lord of Bath in his Answer says He had not them till then expressly so that as far as that goeth it is all the Evidence you have where the Deed lay all the while And his Answer is fortified in this by what Mr. Courtney says that my Lord told him when he came to him that the Deed it self was in the Hands of the Duke and he had received the Draught from the Duke to advise upon And it is further verified by two Material Facts by the Abstract that was taken about some two Years before by Sir Thomas Stringer and by what is admitted on all hands was by my Lord of Bath delivered up when the Will of 87 was preparing and that the Will of 75 and Deed being produced together under the Duke's Seal after his death it is to be taken that both together were put under the Cover and Sealed up by the Duke and delivered to my Lord of Bath as he himself says in his Answer There being then so much ground to believe that the Deed was in the Duke 's own hands what Obligation should there be supposed to lie upon my Lord of Bath to make any mention of it to him It was always intended to be a private thing that is plain There is no Proof what the purposes of the Duke were in making the Will the Purport and Effect of the thing speaks it self But my Lord of Bath says That
and that Mind continued till 81 and it appears by Letters as well before as since that Duke Christopher intrusted him in all his Affairs of Consequence acted not in any thing but with his assistance continually made use of his Friendship at Court to the time of his Death when he was dissatisfied with any of his Servants my Lord of Bath was the Man that must settle the matter when he was to Purchase my Lord Bath must buy for him when he was to sell my Lord of Bath was to transact the matter when he wanted Money my Lord was to procure it for him when he was in danger of losing Money my Lord is applied unto to prevent it All this appears by the several Letters that have been read and produced When he was gone to Jamaica and any Request at Court my Lord's Interest was that which he relied upon my Lord of Bath was the single Trustee to be applied to chiefly in what concerned the Estate the Keys of the Evidence-Room were to be deposited with him as being principally Concerned if he should miscarry Now it must be confessed a Man may do as much as all this comes to and make use of another Man's Friendship and not design to give him his Estate when he had once firmly setled it so and repeated his Assurance of Kindness and continued to make Profession of Kindness all along to the time of his Death and went on to make use of his Service because he thought he might freely command the Service of one who expected to have such Advantages from him yet then I do not see but that it must be admitted that he did deliberately design to impose upon my Lord of Bath or if he did not he did intend to impose upon my Lady Dutchess Now be it which it will I do think he is not to be excused in reference to the Point of Honour as to the Request made to the King for the Earl of Bath and in pursuance of Duke George his desire who engaged the late King to promise under his Sign Manual and he hath made the same kind of Request for Mr. Monk Now upon the whole Matter whether this VVill of 1687. was made to free him from some Importunities in his Family is a great Question There are some proofs in the Case that greatly look that way It is plain he did not execute it for several Months after it was prepared and drawn and when it was published it was obtained with great Importunity against his Inclinations at that Time and there doth not appear any Intention that it should revoke this Settlement but on the contrary it should seem he did not intend so for there are no VVitnesses called to the VVill but the same that came with Stringer from Newcastle House to that purpose But whether he did intend it should take Effect as to the Personal Estate only or to delude my Lord of Bath which way his Honour is best saved is not at all to our purpose to consider upon the Case before us in Judgment Though I must say take it one VVay or the other he seems to blame and to have dealt in some sort double The next thing insisted upon is That this Deed is revoked in Equity of this VVill and though the Power be not pursued in all the Circumstances yet his Intention appearing to make this different disposition of his Estate a Court of Equity should supply that defect Now I take it for granted that a Power of Revocation shall not be carried further in a Court of Equity than the Law will carry it The Law hath been liberal in expounding Powers of Revocation favourably and where the Law expounds a thing according to an equitable Construction there is no reason for Equity to extend it further Where there appear to be other equitable Considerations it may have another Judgment but if it stands without any mixture of other equitable Considerations I think it would be very hard to break through a Settlement especially so solemnly made that he thought fit to restrain himself from altering it without the Assistance of so many Noble Persons whenever he would make use of the Power thereby reserved to him I say it would be a very strange thing for a Court of Equity without the mixture of any other Considerations to assist another voluntary Conveyance against this The Case of Arundell and Philpot is a full Authority in this Case and it has been so often repeated that I need not mention it any further As to what was insisted upon by some about the Revocation being compleated as to the number of VVitnesses by the publication in Jamaica and the impossibility of having any Peers there I must confess had the Duke in Jamaica had an express deliberate Intention and Purpose to revoke and done any Acts to testify it and gone as far in pursuance of the Circumstances as his Condition in those parts would admit that might have come in within that Foundation of Equity to wit Accident But I think there is no ground of Proof of any such Intention or Action For the Proof amounts to no more than this The Duke to prevent any troublesom Applications to him shut up himself in his Room and those that came to him were to come in at the Window And a strong Box in which his Papers were standing under the Window by frequent trading upon it he had a Suspicion that there had been some Attempts to force and open it whereupon he calls for the Box to open it and out of it takes several Papers which he read or gave to Dr. Sloan to read several Letters as I remember and afterwards he took up a sealed Pacquet and said to the Doctor This is my Will and put it down again Is this any manner of proof in the World that this Act was done animo testandi Much less is it any proof that there was any notice taken at this time of this Settlement or that he would avoid it I would say something to that other Point that this being a Deed made to confirm and corroborate the Will of 75 is but Ancillary to the Will and depends upon it and is to stand or fall with it and upon the Revocation of that Will did fall with it This is an Objection wholly inconsistent with the other Arguments that are used against this Deed that it was by Surprize For by those Arguments they would destroy the Deed as inconsistent with the Will but now the Argument is turned the other way But my Lord Chief Justice Holt has so fully and clearly answered that matter that I shall not need to trouble you with saying any more in it The Cases cited about it are in no sort applicable to this Case The last thing insisted upon was supposing the Deed to stand good yet there being a general Trust raised in it to pay the Legacies in the Will my Lord of Bath was no more than a Trustee and the Duke continued Master of the Estate and he who had such a general Power to charge the Land might do it to the full Value and then consequently might dispose of the Land too Now this Point of Trust is the proper Subject of a Court of Equity but to expound a Deed which is made on purpose to prevent a Descent upon the Heir and then to make a general resulting Trust to let the Heir in is such a Construction as will apparently contradict it self and the Deed. But that will fall out to be a Point that comes to be considered hereafter how far this may be a Trust in my Lord of Bath to answer Legacies or Debts in case the Personal Estate should fall short it is not properly considerable now The only Point that was spoken to by the Counsel and left for the Judgment of the Court was this whether in this Case here were sufficient Matter for a Court of Equity to interpose so far as to set aside or impeach this Deed of 81. Now as to that Matter I think I have the Concurrence of my Lords the Judges in it and I am of Opinion that there doth not appear sufficient Ground upon this Case for a Court of Equity to do any such thing Therefore I declare my Judgment That as far as my Lord Mountague and my Lady Dutchess and Mr. Monk their Bills pray that the Court will interpose to set aside this Deed so far their Bills ought to dismiss'd As to any other Matters that arise in the Case I suppose there will be time taken to speak to them but this is the only Matter in Judgment before us at present FINIS
must Appeal to you who are constant Practicers and Attendants here Whether it be not a Notion altogether New And to me as it is a New Notion so it is very fine and seems impossible to be supported by any Reason but must produce very strange Absurdities It is not to me to be reconciled with any Reason of Law or Equity as far as I understand any thing of either For to say that a Deed is revocable because it relates to a Will is first to contradict the Nature and Essence of a Deed. For a Deed takes effect immediately upon the sealing and delivery and is impossible to be altered from what it is and has in it or to be revoked by him that made it But because it relates to a Will it shall be revocable as a Will is That I say is a meer sine-spun strange Notion not at all agreeable to Reason Next such a Construction and Strain as this in Equity must overthrow the Intention and Design of him that made the Deed. For when a Man has made a Will which is not consummate till his death and after that makes a Deed and limits the Estate in such a manner as it was disposed of by the Will What doth this Man mean but that those Estates which were or arise by the Will upon his decease shall have immediate Effect during his Life And whereas he thought with himself it might not be so convenient to leave his Estate wholly to depend upon a Will which might so easily be altered it was his Mind and Intention that it should be made more firm by a Deed which is more permanent Next it is a mighty Strain to make a Deed revocable as a Will for then you must first set up again that Will which was thereby revoked for you cannot imagine but that when a Deed is made though to confirm a Will the Estate limited thereby doth arise by the Deed and the Will is revoked by the Deed. So you set up a Will that is no Will in Law and that shall controul a subsequent Deed which destroyed that very Will which is strange and contrary to all Rules of Law and Reason There were some Cases quoted wherein a Deed shall controul a Will as Dyer 49. It is said If a Man makes a Feoffment to the use of his Will which was next at that time to the Charter of Feoffment that that Will is revocable notwithstanding there is an express Application in the Deed to that Will it self and so the Uses arise by the Deed not by the Will and yet though this Deed hath relation to the Will that Will may be revoked This indeed hath the Terms put in this Case but in Reason is no way applicable to it When a Man makes a Feoffment and annexes his Will thereto there the Design is that the Estate should arise not immediately upon the Feoffment but attend upon the Will But if a Man make a Deed of Feoffment and says it shall be to the use of such Persons and for such Estates as in his Will or as he shall give according to the Will there though the Will doth mention the Names and limit the Estates the Uses do not arise by the Will but by the Deed For though the Will be no part of the Deed yet when the Deed doth refer to the Will and the Will hath limited the Estate it is as much as if all the Limitations had been comprized in the Deed. And I take it that Deed is not revocable because it hath an immediate Effect and can be no otherwise revoked but according to a Power reserved in the Deed it self And that is Hussey's Case Moor 756. A Man makes a Will and he makes a Feoffment to the Uses mentioned in the Will tho the Will be revoked as sure it is yet it is a sufficient declaration of the Uses It was further urged for the support of this Notion what is said in Hobart in the Earl of Ormond's Case The Case is put a little short in the Book A Man suffers a common Recovery to the use of such Person and Persons and for such Estate and Estates as he should dispose of and to in his last Will. This was a Case in Ireland and before the Statute of Uses was made there and so we must look upon it in England as a Case before the 27 H. 8. and then there being a Feoffment made he remains Cestuy que use in Fee in the mean time for he hath a Power by Will to dispose of the Use according as is expressed in the Deed. Then he makes a Deed in his Life-time and giveth away the Inheritance of this Use and afterwards makes his Will Now here is a Deed that giveth the Inheritance of the Use away and here is a Will that doth controul and alter the Disposition of this Deed. This was the use that was made of this Case Now in answer to that Suppose it were so this Will is but an execution of that Power which proceeds from the Deed for when a Man makes a Feoffment for the use of such Persons and for such Estates as he shall limit by his Will It is not the Efficacy of the Will that disposeth of the Estate but it is by virtue of the Deed so that the Deed in his Life-time was no execution of the Power reserved in the first Deed which was only to do it by a Will But I must say this further to that Case of the Earl of Ormond That I do not take that Opinion of the two Judges Hobart and Dodderidge there delivered to be Law and there were other two Judges Mountague and Hutton that were of another Opinion and others were of their Mind and it did not come to a judicial Resolution And my Opinion is this That if a Man made such a Feoffment before or after the Statute of Uses he hath the Fee Simple of the use vested in him in the mean Time and therefore hath a Power to dispose it And if he doth by Deed in his Life-time dispose of it that is a good Disposition and the Will shall not controul it for he is as much Master of the whole Estate both before and since the Statute of Uses as if he had made a Feoffment in Fee to the use of himself And then an absolute disposition of this by Deed doth extinguish and destroy the Power If he from whom the Estate moved doth reserve a Power in any particular manner to limit any Estate or Estates by his Will the whole Fee-simple is in him and any Act he doth do to dispose of the Estate will hinder him from executing of that Power And for this I shall quote you but one Case and that is in Lea 39. Broad's Case a Fine is levied to the use of such Persons and for such Estates as the should limit and appoint by his last Will and so the Case comes home to this Case He after this covenants to stand seized
of these Lands to the use of his second Son and his Heirs and then makes his Will and disposeth of the Estate therein according to the Power The Question was which of these Dispositions should take place the Deed or the Will The Will was according to the Power reserved upon the first Fine and the Deed intervened before he came to execute this Power It was there held that having made a Disposition of the Estate by Deed though by a Covenant to stand seized that should take effect and the Will though made according to the Power came too late to execute it So that I think none of these Cases that have been mentioned for this purpose are applicable to the Case in Question nor argue or prove any thing material for that which the Plaintiffs Counsel intended them for Ay but say they this Will of 1675 and Deed of 1681 make but one Conveyance and then the Will that is the Principal that shall govern all the rest Now this is a Notion fetch'd from the Courts of Law but very improperly applied to this Case as I think For this Will being revoked by this Deed is no Conveyance at all Where several Acts make but one Conveyance every one has its distinct operation to carry on the main Design As a Lease and Release the Lease conveys the Pâ—ssâ—sâ—ion for Years the Release conveys the Inheritance to the Poâ—â—â—ssion by way of Enlargement So a Fine and Recovery and Deed to declare the Uses make but one Conveyance but each performs its particular Part The Fine conveys the Freehold to one Man and upon the Recovery it is conveyed to Another and upon the Limitation of the Use it is conveyed to a Third all are preparatory Acts necessary to compleat the Conveyance of the Inheritance whither it was at first designed But how will they make a Will that hath no subsistence to be one Conveyance with a Deed that before destroyed that Will I cannot see how nor is it reconcileable with Law or Reason So that for that Matter I think they have no ground to insist upon this Point that this being a Deed relating to a Will may be revocable in Equity as a Will is at Law But to go on to the next This Deed doth say It was made and intended to confirm the Will and yet makes several Recitals and Limitations contrary to it Why suppose it were that it did recite the Will truly and says the Will disposed of the Estate so and so and then adds that it was made to confirm the Will but yet disposeth of the Estate quite otherwise than the Will doth shall this avoid the Deed in Equity or make it to have another consideration than it else would have The reciting part of a Deed is not at all a necessary part either in Law or Equity It may be made use of to explain a doubt of the Intention and Meaâ—ing of the Parties but it hath no Effect or Operation But whâ—n it comes to limit the Estate there the Deed is to have its effect according to what Limitations are therein set forth And that is plain and full without any manner of Contradiction whatsoever Now because a Deed is repugnant in some part that is material to what is immaterial Is that any ground in Equity to set aside this Deed or make it more liable to a Revocation than if they had been consistent that seems strange Then here are Misrecitals and Mistakes which I take to be Mistakes of the Clerk and shall these Misrecitalls of the Will in the Deed destroy the Effect of the Deed when the Meaning and Intention of the Parties is most manifest and clear how the Estate shall go and there is no Reference in the Limitations of the Deed to the Will but only in the Recitals and there there are Mistakes Now if the Limitations of the Will and Deed are not applied to the Recitals in the Deed then those Misrecitals cannot hurt the Limitations in the Deed. If so be the Limitations in the Deed had been general to such Uses as were before Recited to have been limited in the Will then there had been some ground to infer that these Mistakes should be a foundation for Equity to rectify those Mistakes For that supposeth the Recitals in the Deed concerning the dispensation of the Estate by the Will are right and would come too late at the time of the Limitations to rectify them and that were a Mistake that might be a good ground in Equity to relieve against the Mistake But when it comes only by way of Recital to be disposed by the Will one way and then doth in express words limit it a contrary Way the Intention is plain that it should go according to the Limitations in the Deed and there can be no Foundations in Equity to set it aside The Rule of Law is Benignae sunt Interpretationes Chartarum And I suppose there ought to be a great deal more indulgent interpretation of them in Equity to maintain the Intention of Parties So that as to that first Point concerning the Frame and Manner of this Deed and the Contradictions to and Misrecitals of the Will in it there is no Foundation of Equity to relieve the Plaintiff against the Deed unless the Power of Revocation in the Deed were legally pursued The next thing is VVhether there be any thing proved in the manner of obtaining it from the Duke or managing and continuing of it after it was obtained be any Foundation for Equity to relieve against it And for my part I see none First I do not see any manner of Evidence to prove any indirect Practice for the obtaining of this Deed from Duke Christopher The most that can be made of it is but bare suspicion and indeed that a very slender one too But say they can you prove the Duke ever read it or had it read to him That is a strange Objection when it is proved to before Witnesses and so many sure that is but a slender ground of Equity the not reading of it But nothing of Surprize or Ignorance in the Duke of what he did in it ought to be supposed because Sir William Jones who is proved to be the Duke's Counsel was by and a Witness to it I told you at first Sir William Jones's Hand to be to the draught and Deed must be admitted because I take it for granted that this is at Law a good Deed. And if I did not take it for granted that that was Sir William Jones's Hand and he was a Witness to the Deed I should not take it for a good Deed. But I meddle not with the point of Fact but take the Fact to be granted to bring the Judicial point in Question so that it is his Hand and he is a Witness to this Deed. Then Secondly It must be imagined that when Duke Christopher made this Deed he did it with some Design and for some purpose or other and if