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
the same that she shall release the 2000 l. per Annum within Three years after his death or else that Devise to be void The Remainder of his Lands in Berks to Sir Walter Clergyes pur vie and after in Tail Male Remainder to his Cousin Henry Monk in Tail Male Remainder to his own Right Heirs To Bevile Greenvile Son to the Earl of Bath his Freehold Lands in Surrey and Southampton for life and then in Tail Male Remainder to his Cousin Tho. Monck pur vie and then in Tail Male Remainder to his Cousin Henry Monck in Tail Male Remainder to his own right Heirs His Lands in Devon to Colonel Thomas Monck for life and then in Tail Male Remainder to his Cousin Henry Monck in Tail Male remainder to his own right Heirs All his Lands in Ireland to his Cousin Henry Monck in Tail Male with Remainder to his own right Heirs Provided That if he have any Issue all devises of any Sums of Mony except for his Funeral his Father's Monument Alms-houses and Legacies to his Executors shall be void and if he leave any Issue the premisses devised to Sir Walter Clergyes Mr. Greenvile Thomas and Henry Monck and their Issue shall go to his Issue viz. to his Sons successively in Tail Male if Daughters in Tail with Remainders to the said persons as before Provided If he leave Issue Male he deviseth to his Wife as an Additional Joynture to her Rent charge Lands in Devon and Essex for her life and makes the Dutchess during her life and in case of her death the Dutchess of Newcastle Guardians of his Children he shall have And in case it happen that Colonel Thomas Monck or any Heirs males of his Body shall live to come and be in possession of the premisses devised to him he desires they will live at Potheridge the Ancient Seat of the Family and desires his Majesty to grant them the Title of Baron Monck of Potheridge that it may remain in the Family in Memory of his Father and himself and his Service his Father had the Honour to do the Crown in the Restauration and makes the Duke of Newcastle Lord Cheney Jarvis Peirpoint Sir Walter Clergyes Sir Thomas Stringer Henry Pollexfen Esq and others Executors That the Duke gave direction to Henry Pollexfen Esq to make this Will and when drawn was fully approved of by the Duke upon mature deliberation Which Will being in Three parts he carefully lock'd up and after leaving Two parts of his Will to two persons and kept the Third he went to Jamaica That the Duke when in Jamaica heard Colonel Thomas Monck was dead in Holland sent to the Earl of Bathe Sir Tho. Siringer and others to send over for Chripher Monck the Colonels eldest Son to Educate him so as to fit him to bear the Character of one to whom he intended the greatest part of his Estate if he died without Issue In September 1688. the Duke sickned in Jamaica and there again published his said Will and declared that if he died the Box and Will should be delivered to the Dutchess and died in October following That the Dutchess at her Return from Jamaica found that the Earl of Bathe set up another Will dated 3. Aug. 1675. whereby the Remainder of the greatest part of the Estate was given to the Earl of Bathe and his Heirs and likewise a Settlement by way of Lease and Release in corroboration of that Will by which he seeks to avoid and frustrate the Will of 1687. That the Duke sent to the Earl of Bathe for the Will of 1675. if any such to have it delivered to him that he might make another Will That the Will of 1687. was Sealed at Sir Robert Claytons the same day after other Writings had been by him sealed to the Lord Chancellor Jeffreys of some Lands sold to him and that the Dutchess nor any of her Relations ever knew or heard of the said Deeds till after the Dukes death nor known to Sir Thomas Stringer who was the Dukes standing Councel and the Plaintiffs farther insist if there were such Deed yet it ought not to avoid or impeach the said last Will though the power of Revoking the same was not literally pursued yet the same in Equity ought to be taken as a Revocation and the rather for that at the making of the Will the Duke remained owner of the Estate and he lookt upon himself so to be for that he had since the said pretended Deeds sold some part of the Estate to Chancellor Jefferies without any Revocation and the Earl of Bath paid no valuable Consideration and that he ought to be protected in the enjoyment of the personal Estate and the Specifick Legacies devised to her in the Will of 1687. tho' the Will of 75. if any such be was intended by the Duke principally to hinder the discent to his next Heir and the Deeds if such there be were for the same purpose and that tho' the Deed recites to confirm the last Will of 75. yet does in several places controul it and alter it whereby and by the extraordinary strange and unprecedented Declarations Provisoes and Covenants therein the Plaintiff believes the Deeds were never executed by the Duke or if so that he was surprised therein and pray Relief in the premisses To this the Defendant makes Answer Answer and sets forth the Will of 1675. whereby the greatest part of the whole Estate was given to the Earl and his Heirs and sets forth the Considerations of his so doing as Antient Kindred and Esteem between Duke George and the Earl of Bath and several Services and good Offices that he had done the Family and likewise sets forth that being well satisfied with such his disposition of his Estate and finding that he had been often importuned to alter the same and fearing lest the repeated Practises and Arts attempted against such his Disposition might some time or other surprise him into a Compliance Consulted with Sir William Jones and other his Councel how to Obviate such practises and to settle his Estate in such manner as that it might not be avoided although for his ease he should at any time seem to yield to the Sollicitations of his near Relations whereupon in Anno 1681. the Duke makes a Settlement wherein he begins That for the assuring of the Honour Manours c. upon a Person of Honour c. and for the Corroborating and Confirming the said Will of 75. and to the end that no pretended last Will should be set up by any Person whatsoever and for the Natural Affection that he beareth to the Earl of Bath c. grants by Lease and Release several Mannors Lands and Tenements c. some in Possession and some in Remainder upon the Earl of Bath in Fee and so to Walter Clergies c. in which Deed there was this Proviso Proviso That if the Duke shall at any time during his life be minded to make void the said Indenture
years Did by Deed in 1639. in consideration of a Marriage with Elizabeth his then Wife and for that she had parted with her Interest in Goods Consideration c. which by Agreement she had the Disposition of for her own use and other Consideration herein mentioned did Assign over the said Premisses and all his Term therein Lease Assigned in Trust for a Joynture and after for Children to Rumbald Jacobson and Abrah Beard on Trust that the said Eliz. should have the profits during Life and after to James Paul Jane and Mary her Children or such of them as the said Elizabeth should appoint by her Will and for want of such Appointment to the said James Paul Jane and Mary or so many of them as should be living at her decease share and share alike and after Elizabeth dyed Paul the Son being dead in her Lifetime Afterwards by deed in 1643. in consideration of a Marriage between the said Philip Jacobson and Frances Earnely and for a Joynture for the said Frances and for Provision for such Children as he should have by her the said Philip Jacobson and James his Son Assigned over the said Premisses for the remainder of the said Term of 60 years and all his Goods and Houshold stuff unto William Daniel and Alexander Staples their Executors c. on Trust Trust to permit the said Frances and Philip and such Children as they should have between them to receive the profits during the said Term and after the decease of him and his said Wife without Issue then on Trust as to part to suffer the Executors of the said Frances and as to the residue the said James Jacobson his Executors c. to receive the profits during the Term afterwards by deed in 1646. Reciting all Assignments and Indentures aforesaid he the said Philip Jacobson Assigned over the said Premisses and his Term therein to Alexander Staples and Jeffery Daniel their Executors c. on Trust as to the said Frances Jacobson for the Premisses limited to her by her first Joynture and as to several other parcels of Land named as in the said Deed is recited which said last premisses contain 132 Acres which are in Trust for the said James Jacobson from the death of his Father during the residue of the Term and in case the said James should remain unmarryed or being Marryed and should dye without Issue and his Wife being a Widow then the Rents and Profits thereof to remain and be to his younger Brother and Sister Lelease of Trusts and afterwards James and Thomas Earneley Son in Law of the said Philip having Marryed Jane one of the Daughters of the said Philip did 22 Car. 1. Release to Staples and Daniel and to the said Phillip and Joanna Jacobson vid. Executrix of Rombold Jacobson who Survived Beard all and all manner of Trusts and demands whatsoever and Suits in Law or Equity which they or either of them their Executors c. had from the beginning of the World unto the date thereof in all the Lands and Tenements with the Appurtenances then or theretofore in the tenure of Philip Jacobson aforesaid in the County of Wilts and by another Release in Jan. 1647. the said James and Thomas Earneley Released unto the said Philip Jacobson and Joanna Jacobson all manner of Trusts and demands whatsoever in all Lands in the County of Wilts as in the former Release and afterwards by deed in 1653. reciting that there was a Marriage then shortly to be had between the said James Jacobson Son and Heir of Philip Jacobson and one Margaret Still the said Philip did Assign over unto John Still and Nicholas Still their Executor c. the said 123 Acres for the Residue of the Term to the use of James and Margaret for their Lives and after their Deceases to the right Heirs of the said James begotten of Margaret and if Margaret should Survive James and have no Child by him and he dye before the end of the Term then she should have power to sell 51 Acres of the premisses and the Residue to the Executors of Philip and if Margaret dye in the life-time of James not having any Issue of her Body by him begotten then living then to the use of the said James Jacobson his Executors Administrators and Assigns for the residue of the Term which Marriage took effect and Margaret dyed without Issue in the Lifetime of James after whose Decease the said James being in possession by Deed in 1661. for 400 l. Mortgaged the 123 Acres to Elizabeth Brinley and yet enjoyed the 123 Acres till he dyed and the said Elizabeth Assigned over the said Mortgage which now by mean Assignments is come to the Plaintiff and James is dead without Issue or Brother and the Defendants Zenobia Frances and Rachell do him Survive This Court was fully satisfied that the Deed in 1653. Voluntary conveyance by which the said James derived his Title and afterwards made the said Mortgage under which the Plaintiff claims Remainder after a Limitation of a Term to an Issue Male void in Law was a good Conveyance and well executed in James and that the Conveyance in 1646. was a voluntary Conveyance and the Estate thereby claimed by the Defendants created being an Estate in remainder after a Limitation of a Term for years to an issue in Tail was void in Law and Decreed the Plaintiff to the possession of the 123 Acres or the Mony due on the Mortgage and to enjoy against all the Defendants and Decreed that the Plaintiff and Defendant Hopkins who is Administrator of the Mortgager James Jacobson to come to an account Oliver contra Leman al' 29 Car 2. fo 102. A Trial at Law is directed to the Plaintiff to try his Right to a Reversion of Lands after the Death of the Defendant Wainwright so the Plaintiffs desire what time they think fit to try the same A Tryal at Law directed to be within a precise time but the Defendant insists that the Plaintiff ought to be confined to a convenient time which was prayed might be the Rule in this Case and that the Defendant might not be kept in suspence and to wait on the Plaintiffs Convenience when he shall think fit to try the same This Court ordered it to be Tryed in Easter Term next or the Issue be taken pro confesso Stawell contra Austin 29 Car. 2. fo 579. THat George Stawell Father of Vrsula and Elizabeth Stawell being seized in Fee of Lands Construction of a Will by Deed and Recovery thereon setled all the said Lands on the Defendant Sir John and Robert Austin and their Heirs to the said George for Life remainder for such Estates and Charges as he by Will or other writing should appoint remainder to the Heirs Males of his Body with remainders over and by Will persueant to the power reserved by the said Deed devised the premisses setled by the said Deed to the said
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
of the Estate to the Testator Whereto the Plaintiff insisted That the Custom of a Sum certain to be mentioned appeared only by a By-Law called Judd's Law in 5 Ed. 6. the which is no estabiished Law in the City to bind the Right of any and there is a great difference in the By Laws in the City which ought to respect their Government and not bind the Right of any person which is governed by the general Custom of the City and which is paramount to any of their By-laws and by the Custom the Right of a Freemans Child is as much preserved to him as any mans Right by the Common Law of the Kingdom besides the naming of the Sum is no more than in order to the setling the Accounts of the said Estate which may be done before a Master in this Court This Coutt upon Reading several Presidents on both sides declared That the said Certificate was conclusive and that the Plaintiff must be let in for a Customary part of her Fathers Personal Estate and decreed the same accordingly The Defendant was ordered to Account for all the Personal Estate of Bennony Honywood Fo. 598. and the Plaintiff thereout to have her Customary part her Marriage Portion being brought into Hotch potch with the rest of the Personal Estate and the Plaintiff to discover the said Portion on Oath and the Defendant to do the like as to what provision he had The Defendant insists What provision he had was Mony deposited by his said Father in the hands of Mr. Colvile and others to purchase Lands or Houses in or near London in pursuance of Articles between the Defendants said Father and the Defendants Wives Father which were made before the Marriage of the Defendants which Lands and Houses so to be purchased is by the said Articles covenanted to be setled on the Defendant and his Wife for life and for her Joynture Remainder in Tail and was in consideration of the Defendants wives Portion and Houses were purchased therewith in Bennony's life and the Defendant is his Son and Heir And the Defendant insists What Mony is deposited by the Father to purchase Lands in pursuance of Marriage Articles is to be taken as Real and not as a Personal Estate and shall not be brought into Hotch-potch That what was so deposited as aforesaid is to be taken as if the Defendants Father himself had purchased Lands and setled the same to the uses aforefaid and ought not to be accounted a personal Estate of the Defendants Father but as Land This Court declared what was deposited by the Defendants Father to purchase Lands in pursuance of the said Articles is to be taken as Lands and not as personal Estate of the Defendants said Father and also declared what was deposited as aforesaid shall not be brought into Hotch-potch but the Defendant is to discover what he had from his Father upon his said Marriage Prigg contra Clay 32 Car. 2. fo 198. THat John Clay by his Will devised 100 l. Will. to the Plaintiff Philip Prigg Jun. and Deborah Prigg his Sister in manner viz. 50 l. to the said Philip at his Age of 21 years on day of Marriage which should first happen by the Defendants his Executors and in the mean time the whole 100 l. to be secured and improved by his Executors for their use and in case either the said Philip or Deborah should die before payment of their Legacies the Survivor to enjoy the whole 100 l. and if both die before payment of their said Legacies then the Testator decreed the whole 100 l. to his Sister the Plaintiff Elinor their Mother besides 100 l. to her to be paid within 6 Months after his death That the said Deborah Prigg died unmarried and before 21 and before she had received the 50 l. Legacy so that the whole 100 l. became due to the Plaintiff Philip Junior The Defendants insists That Deborah died before the Testator and her Legacy of 50 l. became void This Court was sully satisfied Legacies of 50 l. apiece given to two and if either die before 21 the Survivor to have all One dies before the Testator yet the Survivor decreed to have all though Deborah died before the Testator yet the said Devise of 50 l. to her did not become void and being devised over to her Brother Philip the surviving Legatee it belonged to him according to the devise in the Will the rather for that it being a contingent Remainder and might vest after the death of the Testator so long as there was a Survivor it did not belong to the Executors and for that the Testator who lived for some time afterwards did not alter the devise thereof by his Will nor otherwise dispose thereof in Writing and decreed the Defendants to pay the Plaintiff the two 50 Pounds This Order was confirmed by the Lord Keeper Sanders contra Earle 32 Car. 2. fo 102. THat the Plaintiffs late Husband Daniel Earle Will. or some in Trust for him was at his death seised in Fee and also intituled to the Trust of a long Term of the Mannor upon a Sore and Lands in Com' Nottingham which said long Term was in being and subject to be disposed as she should appoint so that he had full power to settle devise or charge the same by his Will and the said Daniel in consideration of a Marriage with the Plaintiff and 2000 l. Portion he in 1676. by Will devised to the Plaintiff besides a Joynture of 1200 l. and if she were with Child of a Son he gave all his Lands and Tenements to such Son in Tail but for default of such he gave them to the Defendants his Brother and their Heirs and if he had a Daughter he devised to such Daughter 500 l. to be paid when she attained her Age of Sixteen and the same to be secured out of his Lands aforesaid and made his said Brothers Executors That the Plaintiff had no Son but a Daughter who lived some time and is since dead and the Plaintiff is her Administratrix whereby she is intituled to her 500 l. presently The Defendant insists That the Plaintiffs said Husband devised to the Plaintiff 1200 l. and devised to her all her Plate Jewels and Goods and Stock in and about the House at Normanton and made the Plaintiff Executrix till the last day of August after the Will and if she who was then with Child had a Son by that time then she to continue Executrix otherwise the Defendants to be joynt Executors and made such devise to the Daughter and the rest of his personal Estate he devised to his Executrix or Executors That the Plaintiff Margaret having but a Daughter the Defendants proved the Will and are intituled to the Legacies therein to them devised and the refidue of the personal Estate and insists That if the Plaintiff as Administratrix to her Daughter be intituled to the 500 l. yet she is not to receive it till
of his Real Estate on Trustees and thereby made a provision for the Maintenance of William the younger during his Minority and therefore they opposed the Plaintiff Frances getting Administration of William the Elder The said Plaintiff Frances Whitmore insisted That by the Will of William the Elder there was no joynt devise made to the said William the Son and the Issue Male and Female of the Sisters of William the Father but a several devise to William the Son with Remainder to the Sisters Issue and that the said William the Son having an Interest vested in him by the Will of his Father and being 18 years Old when he died and he having then a power to have proved his Fathers Will the Earls Executorship during his Minority being determined might have spent or given away the said Estate in his life-time he might surely give away the same by his Will which he having done to the Plaintiff Frances she is thereby well Intituled to the same and that the remainder over to Issue Male and Female of the Sisters the Estate being purely personal is absolutely void This Court hearing several Presidents quoted Devisee Infant lived to 18 years and makes his Will and Executors and dies the Executor shall have the Legacy for that an Interest was vested in the Infant declared That by the Will of the Father there was an Interest vested in William the Son and the remainder over to the Issue Male and Female of the Sisters of William the Elder was void and that William the Son living to 18 years and making his Will as aforesaid and the Plaintiff Frances his Executrix she is thereby well intituled to the surplus of the said personal Estate and decreed the same accordingly Whitlock contra Marriot 1 Jac. 2. fo 700. THis Case being upon a Scandalous Answer Defendant ordered to pay the Plaintiff 100 I for putting in a Scandalous Answer His Lordship declared the said Answer to be very Scandalous and Impertinent and that the expressions taken by the Defendant to the Masters Report were not only more scandalous but also Malicious and that it appearing that Ryley the Defendants Solicitor had put Mr. Lynn a Councellors Hand to the Exceptions without his Knowledge This Court Ordered the said Ryley to be taken into Custody of the Messenger and declared the Answer and Exceptions were not pertinent to the Cause but meerly to defame the Plaintiff His Lordship Ordered the Defendant Marriot to pay to the Plaintiff 100 l. for his Reparation and Costs for the abuse and scandal aforesaid and the said Ryley to pay 20 l. and to stand committed to the Prison of the Fleet till payment thereof be made Ash contra Rogle and the Dean and Chapter of St. Pauls 1 Jac. 2. fo 154. THis Case is upon a Demurrer Bill to enforce the Lord of a Mannour to receive a Petition in nature of a Writ of false Judgment to Reverse a common Recovery demurred to and the demurrer allowed the Plaintiffs Bill is to inforce the Defendant the Lord of the Mannour of Barnes in Surrey to receive the Plaintiffs Petition or Bill in the Nature of a Writ of false Judgment to Reverse a Common Recovery suffered of some Copyhold Lands in the Mannour by Susan Râ—gle Widow which the Defendant Râ—gle holds under the said Recovery the Bill setting forth that Katherine Ferrers by the Will of her Husband or by some other good Conveyance was seized in Fee of Free and Copyhold Lands in Barnes formerly her said Husbands in Trust to Convey 200 l. a year thereof upon William Ferrers her Eldest Son and the said Susan his then Wife and Heirs Males of the Body of William Remainder in Tail to Thomas Ferrers the Plaintiffs Father second Son of Katherine and the Heirs of his Body Edward being obliged by Articles upon Susans Marriage with his Son William to settle Lands of that value on Susan for her Joynture That Katherine on that Trust in 1642. surrendred the premisses to the value of 100 l. per Annum to the use of the said William and Susan and the Heirs of their two Bodies begotten remainder to the Right Heirs of William which was a Breach of the Trust in Katherine in limiting an Estate Tail to Susan when it should have been but an Estate for life That William died before the Admittance leaving Issue only his Son William and in 1652. Susan surrendred to one Mitchell against whom the Common Recovery in question was then obtained wherein one Walter was Demandant the said Mitchell Tenant and Susan Vouchee to the use of her self the said Susan for life the Remainder to William Ferrers and the Heirs of his Body the Remainder to the Right Heirs of the Survivor of them the said Susan and William her Son That William the Son died soon after and Susan died in 1684. and the Plaintiffs Father Thomas being dead without Issue Male in case the Common Recovery had not been suffered the premisses would have come to the Plaintiff being the youngest Daughter to her Father as Couzen and Heir both of William Ferrers the Father and William the Son the premisses being Burrough-English and so the Plaintiff was well Intituled to prosecute the Lord of the Mannour in the Nature of a Writ of False Judgment to Reverse the said Recovery wherein there are manifest Errors and Defaults but the said Lord refuses to receive the said Petition and combine with the Defendant Rogle who is Son and Heir of the said Susan by a second Husband who pretends that his Mother Susan surviving her Son William Ferrers the premisses are discended to him by virtue of the use of the said Recovery limited to the Right Heirs of the Survivor of Susan and her Son William so the Plaintiffs Bill is to examine the defects of the said Recovery The Defendants demur for that the Relief sought by the Bill is of a strange and unpresidented Nature being to avoid and reverse a Common Recovery had in the said Mannour 30 years ago and that upon a bare Suggestion generally that the Recovery is erroneous without instancing wherein which may be said in any case The Master of the Rolls declared That as that part of the Bill which seeks to impeach or reverse the said Recovery for any errours or defects therein or compel the said Lord to receive any Petition for reversal thereof or any ways to impeach the same his Honour declared That this Court being the proper Court to supply the defects in Common Assurances and rather to support than to assist the avoiding or defeating of them and there being no presidents of such a Bill as this is he thought not fit to admit of this nor to introduce so dangerous a president whereby a multitude of Settlements and Estates depending on Common Recoveries suffered in Copyhold Courts for valuable Considerations would be avoided and defeated through the negligence or unskilfulness of Clerks and therefore conceived the said Common Recovery ought
the Grandfather either ready Mony or otherwise to be limited by any act thereafter to be executed in his life time or by his last Will to the Sum of 1500 l. apiece together with 20 l. per annum until the said 1500 l. apiece should be paid unto them the same to be in satisfaction of all Moneys that they might claim by force of the said Indenture Tripartite with Proviso That if the said William the Grandfather should by Will or otherwise appoint them 1500 l. apiece or 1500 l. to the survivor of them for their Portions with such yearly Maintenance as aforesaid so as the same should be well and truly paid unto them accordingly Or if before such portions should be paid the said William Every their Brother should die without Issue Male whereby the said premisses should be charged for raising of Portions and Maintenance aforesaid that then the Trustees should not levy the Portions by that Indenture limited other than what should be paid in the life time of William Every their Brother And it is thereby declared that in case the said Susanna or Martha or either of them should die before their Portions in and by the said last Indenture to them limited should become due and payable to them that then the said portion and portions of them or either of them so dying should not go or be to the survivor of them or to any the Executors Administrators or Assigns of them or either of them but should go to whom the said William the Grandfather by Writing or Will should appoint and for want thereof to his Executors or Administrators And it is further declared That the said Susan and Martha shall not have any benefit in case that they or any other for them should take any advantage or benefit by means of the said Indenture Tripartite or any Proviso therein contained And then the 9th of March 1651 William the Grandfather makes his Will therein reciting that he had by several Deeds all dated Feb. 21. Car. 1. granted to Knight Cade Webber and Ford certain Lands in the County of Dorset for terms of years determinable upon the death of certain persons therein mentioned upon trust and for the use and benefit of such person or persons to whom he should by his last Will give limit or appoint the same And by his Will gave limited and appointed all the said Estates and Terms so by him granted to the said Knight Cade Webber and Ford to the Defendants Gold and Doble in Trust that the said Gold and Doble or the survivor of them or the Executors or Administrators of the survivor of them should dispose of all the Rents and Profits of the said Lands or should otherwise sell assign and convey the said Estates and Terms as to them should seem most convenient towards the raising of 1500 l. apiece to the said Susan and Martha And did thereby give and appoint to each of the said Susan and Martha 900 l. to be paid unto them severally out of his personal Estate whereof he should die possessed accounting therein all such Moneys which he had or should lend upon the Specialties taken in the Names of Gold and Doble towards the further raisings of their said Portions unto 1500 l. apiece having as by his Will is expressed by his Deed dated the last day of December then last past mad provision for advancing their said Portions to the Value out of his Lands in Com' Somerset which said Portions his last Will and meaning was should be paid unto them the said Susan and Martha severally at their respective Ages of 21 years or sooner if they should be respectively Married with the Consent of the said Gold and Doble or the Survivor of them with a Proviso That if William Every his Grandson should happen to die without Issue Male of his Body lawfully begotten before the said respective Portions should become payable to the said Susan and Martha according to the time before limited whereby the said Susan and Martha should be Intituled to 1500 l. apiece by virtue of the said Indenture Tripartite made upon his deceased Son's Marriage then the said Legacies or appointments of Portions unto Susan and Martha thereby made should be void and of his Will made Gold and Doble Executors And the Plaintiff as Administratrix of her said two Daughters Susan and Martha exhibited her Bill against Gold and Doble Executors of William the Grandfather and Webber the surviving Trustee in the Deed of the Lands in Somerset and against John Every the Heir in Tail of William the Grandfather and seeks to be Relieved upon the Deeds and Will before-mentioned for the 1500 l. apiece given to Susan and Martha her Daughters The Defendants say That William the Grandfather died in the life time of William the Grandson and that the personal Estate of William the Grandfather came to 4000 l. and that William Every the Grandson was Buried 23 Nov. 1660 and was about 20 years old when he was Buried and Susan the Plaintiffs Daughter was Buried 25 July 1655 and was about 18 years old when she was Buried and Martha the Plaintiffs Daughter was Buried 4 July 1660 and was about 20 years old when she was Buried and it appears there was sufficient Personal Estate to satisfie the several Portions demanded Which Case the Master of the Rolls having considered and upon the Hearing before him Declared That he was satisfied the 1500 l. apiece by the Deed and Will aforesaid for Portions to Susan and Martha Daughters of the Plaintiff was a Debt or Duty well fixed in them by the said Deeds and Will and by their Deaths did accrue and belong to the Plaintiff their Mother as Administratrix to them did Decree the same should be paid accordingly Which Opinion and Decree the Defendants appealed to the Lord Keeper who being assisted with Judges and upon reading the Deeds and Will aforesaid were all clear of Opinion That the Indenture Tripartite A Prior Deed of Settlement barred by a subsequent Deed and New provisions made for Portions of 27 June 7 Car. 1. is not as the Case now stands material or conducing to the state of the Case or to the limitation of the Time for payment of the Portions for that the same is by Deed of Bargain and Sale and Release thereupon in 1651. barred and a New provision made for raising the said Portions in such manner as he should limit by any act in his life time or by his last Will. By which Deed the Survivorship between the two Daughters is barred and a provision made That if either of them die in the life time of William the Grandson the Portion of her so dying shall not go to her Executors but to the Grandson And William the Grandfather having by his Will of the 9th of March 1651. wherein he recites the Deed of Decemb. 1651. limited and appointed 900 l. apiece to be paid to his Daughters severally out of his personal Estate towards
Children This Court is of Opinion That the said 60 l. belonged only to the Children of the said Mark Warren which he had by his then Wife at the time when the said Mony was given and decreed the same accordingly Wallop contra Dominam Hewett 24 Car. 2. fo 218. THe Plaintiffs Henry and John Wallop seek Relief for 400 l. Legacies given by a Will and a Codicil and are distinct not one and the same viz. 200 l. apiece Legacy given them by the Will and Codicil of the Lady Crofts The Case is That the Lady Crofts by her Will gave the Plaintiffs 100 l. apiece and afterwards by a Codicil annexed to her Will gave the Plaintiffs 100 l. apiece The Question is Whether the said Legacies so given be one and the same or distinct and several Legacies or what her Intention was in reference to the same and desire the Judgment of the Court therein This Court with the Judges on Reading the said Will and Codicil were of Opinion and satisfied That the said Legacies in the said Will and Codicil mentioned are not one and the same but distinct and several Legacies of 200 l. and decreed the Defendants to pay the said Plaintiffs 400 l. Thorne contra Newman 24 Car. 2. fo 371. 24 Car. 2. fo 8. THat Nicholas Burnell Deed of Revocation Father of the Defendant Margaret Newman being seised of the premisses in 1652. demised the same to Elizabeth Stone for 99 years at a Pepper-Corn with a Proviso to be void on payment of 590 l. and the said Elizabeth died and made Elizabeth Wheat her Executrix and Thomas Baker marrying the Defendant Margaret Newman in November 1657. Elizabeth Wheat and the said Nicholas Burnell Assigning the premisses to Thomas Baker and the said Baker for 500 l. borrowed of the Plaintiff Assigned to one Minterne in Trust for the Plaintiff in 1659 and Baker failing in payment contracted with the Plaintiff for 770 l. more that he would give his Interest in the premisses absolutely without any power of redemption and Baker and Minterne did joyn accordingly in 1660. And the Plaintiff insists That the Defendant claims the premisses by a Deed dated the 19th of August 1659. whereby it is pretended That by Indenture made between the said Old Burnell of the one part and Thomas Lewis and Bartholomew Pickering of the other part the said Burnell in Consideration of the Natural love and affection to the said Margaret and for the setling and confirming of the premisses for the uses therein and for 5 s. Covenanted to stand seized of the premisses to himself for life Remainder to the Defendant Margaret for life then to the Wife of the said Thomas Baker Remainder to the Heirs of her Body with Remainders over and the said Burnell dying in 1659. the premisses then vested in Margaret and that Baker in her Right became seised of the Freehold thereof and that thereby the Remainder of the said term of 99 years was drowned Term drowning in a Freehold and so the Assignment to Minterne and the Assignment by Baker and Minterne to the Plaintiff was void and so the Plaintiff a purchaser for 1300 l. like to be defeated And the Plaintiff further insists That if the said Deed were ever sealed it is with a Proviso of Revocation to be void on payment or tender of 12 d. to Lewis or Pickering or either of them in the Middle-Temple-Hall and that Burnell did tender 12 d. to Lewis with intention to make void the said Deed and declared so to Lewis that she did revoke the said Deed and pulled the Seal off from it and that a Memorandum was Indorsed on the backside of the Deed That there was 22 Octob. 1659. 12 d. tendered to Lewis to revoke the said Deed but the Defendants pretend because the 12 d. was not tendered in the Middle-Temple-Hall therefore the Revocation was not legal and so the said Deed still in force and the Plaintiffs Estate drowned The Defendants admit the Case to be as aforesaid but insist That the said Deed 19 Aug. 1659. was intended for a Settlement on the Defendant Margaret for a provision for her after the death of the said Baker her Husband he having not made any Joynture and that the said Defendants claim the premisses by the said Deed whereby immediately upon the death of Burnell the Freehold of the Premisses vested in Baker in right of the said Margaret his Wife and so the Plaintiffs Estate was drowned and that Baker was not by intention of the said Deed to sell away the premisses for any longer time than his own life without the said Margarets Consent and Joyning with him in a Fine thereof And the Defendants further insist That the 12 d. ought to have been tendred in the Middle-Temple Hall else the Deed must be in force and if any Memorandum or Declaration were made as aforesaid the same was done out of design only to have the said Baker make the said Margaret a Joynture But the Plaintiff insists That he ought to hold the said premisses for the residue of the said term for 99 years against the said Deed. This Court was satisfied That the Plaintiff ought in Equity to enjoy the premisses against the Defendants Voluntary Deed set aside against a purchaser and that the said Deed ought to be set aside as against the Plaintiff but the Defendants are to redeem The Bill being to set aside a pretended voluntary Conveyance set on foot by the Defendant Conveyance with power of Revocation on payment of 12 d. at such a place 12 d. was tendered at another place with express declaration to revoke the Deed. which Deed is with power of Revocation upon the tender of 12 d. and the 12 d. was tendered accordingly with intent to revoke the said Deed and the said Deed is accordingly Cancelled but the Defendants in respect the 12 d. was not tendered at the place appointed set the said Deed up at Common Law and upon a Trial at Law without any defence made by the Plaintiff the Defendants were Nonsuited and the Plaintiff being a purchaser of the premisses first by Mortgage for 500 l. and afterwards by absolute Assignment for 770 l. more The Lord Keeper upon reading the said Cancelled Deed saw no cause to alter the Master of the Rolls his Decree aforesaid but ordered the same to stand Confirmed Comes Sterling contra Levingston 24 Car. 2. fo 113. 432. THat Sir Peter Vanlore the Elder being seised in Fee of the Lands by Deed Covenanted to stand seised thereof to several uses under which all parties to the Suit claim several parts of the premisses and here being a Proviso in the said Deed That if young Sir Peter Vanlore or the Issue whose Issues and Heir the now Plaintiffs are should attempt to impeach the said Settlement that then the uses to him and them limited by the said Deed should be void and that by the death of several persons several parts
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
said debt nevertheless that debt ought to be made good out of the said Pincheons Estate whatever and decreed accordingly Ramsden contra Farmer al' 28 Car. 2. fo 516. THat Simon Carill was seised in Fee of Lands Lands conveyed to Trustees for payment of Debt conveyed the same to Trustees to sell and dispose thereof for performance of his Will who by his Will devised the said premisses to the said Trustees and their Heirs to pay his debts and made Elizabeth his Wife his Executrix who afterwards married Mr. Barnes and the said Trustees with the consent of the said Elizabeth conveyed the premisses to Sir John Carill and others in Trust in the said Will Trust assigned and the said Barnes after died and the said Elizabeth married one Machell and by Deed 22 Car. 1. the said Trustees Carill c. with Elizabeth conveyed the said premisses to the said Machell and his Heirs and in 1646. the said Machell with the like consent conveyed to Duncombe Heath and Baldwin and their Heirs in Trust that they after the said Simons Debts and Legacies paid should convey to the said Elizabeth and her Heirs or to such as she by Deed or Will appoint That the said Elizabeth raised Monies and paid the said Simons Debts and Legacies and performed the said Will and after the said Machell's death Elizabeth by Will 1650. devised all the said premisses to her Son John Carill for life and after his decease to the first Son of the Body of the said Son lawfully begotten or to be begotten and to his Heirs And if her said Son should not have a Son but one or more Daughters then she devised the premisses to the first Daughter of the Body of her said Son and to her Heirs That the said John Carill in the said Elizabeths life time had a Son whose Name was John who died in her life time and soon after Elizabeth died and her said Son John Carill survived her and never had any other Son after Elizabeth Machells death and the said John Carill died and left the Plaintiff Lettice his eldest Daughter and the Defendant Elizabeth his second Daughter and the Defendant Margaret his third Daughter and the said Lettice the Plaintiff claims the premisses as eldest Daughter But the Defendants Elizabeth and Margaret insist They ought to have their equal parts with the Plaintiff Lettice in the premisses and that the said Simon had not power to make such Settlement or Will but say he was only seised for life of the premisses and that Elizabeth Machell joyned in the Settlement at her Son John Carill's Marriage and if there were such a Will of the said Elizabeth Machell yet the said John Carill had a Son named John Carill Construction of the words of a Will who was Born after the death of the said Elizabeth Machell and lived some time after her death without Issue and by the words of the Will the Trust is determined This Court not being satisfied as to the Birth and death of the said John Carill directed a Tryal on this Issue whether John Carill Grandson of Elizabeth Machell dyed during the Life of the said Elizabeth Machell or after her decease That upon a Tryal on the said Issue it was found that the said John Carill the Grandson outlived the said Elizabeth Trusts determined and therefore the Defendants insist that the Trust limited by the Will of the said Elizabeth Machell is fully determined This Court declared they saw no cause to relieve the Plaintiffs Bill in this matter and so dismist the Bill accordingly Salter contra Shadling 28 Car. 2. fo 66. THat Bryan late Lord Bishop of Winton being possest of the Mannor of Pottern by Lease from the Bishop of Salisbury Will. made to Sir Richard Chaworth in Trust for the said late Bishop of Winton by his Will Devised 200 l. per Annum should be paid out of the profits of the said Lease to William Salter the Plaintiffs late Husband his Nephew during his Life and that the Estate in Law in the said Lease should continue in Sir Richard Chaworth during his Life and the Surplusage of the profits he Devised to the said William Salter to whom he also Devised the Lease after Sir Richard Chaworths death and made Sir Richard Chaworth and others Executors who consented to the said Devise and about 16 Car. 2. William Salter made his Will and as to his Interest in Pottern he devised the same to Trustees that they should permit the Plaintiff to receive the profits during her Widdow-hood on Condition she renewed the Term to 21 years Construction upon the words of a Will once in seven years and if the Plaintiff should Marry or dye then he declared the profits of the Premises to go to his two Daughters Ann and Susanna and the Survivor of them and their Heirs and after their Deaths without Heirs of their Bodies then to his right Heirs and Devised all the rest of his Personal Estate should be to his Executors and Trustees for the benefit of his said Daughters and made the Plaintiff and the said Trustees Executors That the said two Daughters are since dead intestate and the Plaintiff being their Administrator is Intituled to the whole Term and Trust of the said Lease of Pottern as Administrator to her said two Daughters according to the said William Salters Will and the true Exposition thereof the same being devised in manner as aforesaid The defendant Charles Cleaver the Infant being Eldest Son and Heir of Dame Briana Cleaver deceased who was one of the Sisters and Coheirs of the said William Salter and the Defendant Stradlings Wife being his Sister and Coheir insist that according to William Salters Will and for that no present interest in Pottern was Devised to his two Daughters but only Contingent possibility of Interest in case the said Plaintiff should Marry or dye neither of which having since hapned and the said Daughters being since dead the Interest and Term in Pottern ought to come to them as Heirs to the said William Salter and not to the Plaintiff as Administratrix to her two Daughters the rather for that they consented to a decree for Sale of Lands which would have come to them as Heirs at Law to preserve Pottern from Sale for the payment of William Salters debts This Court declared that according to William Salters Will and the disposition therein made of Pottern the whole Interest of the said Term and Trust therein was well passed in the Plaintiff and that the Heirs of Salter can have nothing to do therewith nor have any Interest therein and Decreed the Plaintiff to enjoy the same against the Defendants Still contra Lynn al' 28 Car. 2. fo 195. Bill is to be relieved for 123. Acres of Land THat Philip Jacobson Deceased Settlement being possest of a Capital Messuage or Tenement and Lands by Lease from the Crown Dat. 13 Car. 1. for the Term of 60
Cutler 30 Car. 2. fo 285. THe Testator deviseth Lands to be held by his Executors Will. Lands devised to be held by Executors till his Son attain 22 years Son dyes before 22 Executors decreed to hold the Lands till the said 22 years till the Testators Son attained 22 years of Age for maintenance of the Executrix and her Children that the said Testators Son dyed before 22 years of Age. This Court decreed the Executrix to hold the Lands against the next Heir until the said Sons Age of 22 years as if the said Son had lived to 22 years and the Plaintiffs debt on Bond to be paid by the next Heir or the reversion to lye liable and charged therewith Jolly contra Wills 30 Car. 2. fo 523. THat Roger Garland Elder Brother Will. Devise of Goods to J. S. for 11 years the remainder over J.S. decreed to deliver the Goods after the 11 years by Will did give unto John Wills the Defendants late Husband the use of all and singular the Goods Plate c. whatsoever then in his House for Term of 11 years from his death and after the 11 years expired he gave the same to his two Nephews Robert and Roger Garland and to his Niece Elizabeth the Plaintiff to be equally divided amongst them and after the 11 years the said Wills was to deliver them to the Plaintiff The Defendant Wills insists that by the bequest of the said Goods for the 11 years she and her Husband to whom she is Executrix are well intituled to the property of them and that the Devisour is void in Law and Equity This Court decreed the Defendants Will to deliver the goods to the Plaintiffs to be divided according to the Will the said 11 years being expired German contra Dom Colston 30 Car. 2. fo 741. THis Court decreed Legatees to refund to make up Assets that in case hereafter any Debt of Sir Joseph Colston should be discovered and recovered against his Executors the Legatees of Sir Joseph Colston are to refund in proportion what they have received for or towards their Legacies to make up Assets for satisfaction thereof Cotton contra Cotton 30 Car. 2. fo 71. 282. THat Nicholas Cotton being seized in Fee of Copyhold Devise and Free hold Lands in Middlesex and Surry of 500 l. per Annum in 1676. dyed without Issue wherebythe same descended to the Plaintiff as Couzen and Heir to the said Nicholas but the Defendant Katherine Cotton pretends that the said Nicholas Cotton made his Will in Writing 25 years since viz. in 1650. having first surrendred the said Copyhold Land to the use of his Will and bequeathed the same to the said Defendant Mrs. Katherine Cotton his Relict and her Heirs but if such Will were the said Nicholas purchased some Lands since which descended to the Plaintiff and that the said Nicholas a little before his death contracted with Sir Thomas Lee and his Trustees for certain Copyhold and other Lands in Sunbury and was to pay 1110 for the same and paid most of the Mony in his Life-time and had possession The Defendant Mrs. Cotton insists that Nicholas Cotton her late Husband deposited in the Hands of the said Sir Thomas Lee or his Trustees 600 l. designing to purchase the said Land in Sunbury but her said Husband Cotton was to have interest for the said Mony and he only rented the said Sunbury Lands and not purchased them because a good Title could not appear but insist that after the death of her Husband she purchased the premisses and paid 320 l more then the 600 l. paid into the said Sir Thomas Lee's Hands and that her Husband by the said Will devised to her all his Real and Personal Estate and made her Executrix This Cause being now heard by Mr. Articles for a purchase and 600 l. paid but interest was paid for it till the Conveyance executed contractor dyes before any conveyance the 600 l. was part of his personal Estate Justice Windham who on reading the Articles between the said Nicholas Cotton and the said Sir Thomas Lee whereby the said Nicholas Contracted with him for the purchase of his Free and Copyhold Lands in Sunbury in Fee simple for 920 l. is of Opinion that the said Nicholas dyed before any Conveyance made by the said Sir Thomas Lee of the said premisses to the said Nicholas and the said Sir Thomas paying Interest for the said 600 l. and the said Nicholas paying Rent for the said premises the said 600 l. at the death of the said Nicholas was part of his personal Estate and as to that 600 l. could not relieve the Plaintiff but difmist the Bill And as to the Morgage made to Perkins by the said Nicholas and the Defendant his Relict it appearing that part of the Morgaged Lands was before that Morgage made Equity of redemption to whom belongeth setled on the said Nicholas and Katherine in Joynture or otherwise so as the same came to her as Survivor this Court is of Opinion that the Equity of Redemption belongs to her as survivor and not to the Plaintiff But as for the other part of the Mortgaged premisses and other matters in the Plaintiffs Bill for which he seeks relief as Heir The question being whether any republication were of the said Nicholas his Will Republication of a Will and whether the same Lands do belong to the Plaintiff as Heir or to the Defendant Katherine as Devisee by force of the said Will. This Court referred that point to a Tryal at Law upon this Issue whether the said Nichelas Cotton did by his said Will devise the said Lands in Shepperton in the Defendants answer mentioned to be purchased by the said Nicholas Cotton of one Rowsell in Fee in 1659. to the said Katherine or not A Tryal at Law having been had upon the point aforesaid a Special Verdict was by the Lord Chief Justice North's direction sound Lands decreed to the Devisee and on a Solemn Argument before all the Judges of the Common Pleas they unanimously gave Judgment for the Defendant that the Lands in question did belong to the Defendant Katherine as Devisee by the said Will. This Court confirmed the Judges Opinion Civil contra Rich 30 Car. 2. fo 338. THat Sir Edwin Rich made his Will whereby he after some Legacies gives and Bequeaths all the residue of his Estate both real and personal to Sir Charles Rich his Heirs and Assigns for ever and maks him Executor of his Will and in his Will says he left his Estate as aforesaid in Trust with him wherewith to reward his Children and Grand-children according to their demerit This Court declared A general Trust in a Will for Children and not a fixed Trust to create a certainty of right That as to Sir Edwins Estate taking the words of the Will of the said Sir Edwin as they were they could amount to no more than a general Trust in Sir
Charles to reward such of his Children and Grand children as they should demerit and as Sir Charles should think fit and not an absolute fixed Trust to create a certainty of right or in terest as to any certain Proportion in any of the Children or Grand children much less in the Plaintiff Civil Rich who demands the greatest part of the Estate and that it was in the Grandfathers power to give the said Estate or what Proportions thereof as he pleased to any of his Children or Grand-children but whatever of the real Estate of Sir Edwin was disposed or setled by the said Sir Charles by act Executed in his Life time or was devised or given by the Will of the said Sir Charles the Plaintiff not to be releived but dismist the Bill Boeve contra Skipwith 30 Car. 2. fo 140. THe Bill is a Suplemental Bill A Supplemental Bill for a further discovery to have a further discovery from the Defendant by way of Evidence for the better clearing the Matters depending on the Account which the Defendant hath not answered in the former Cause The Plaintiff pleaded the former Bill to which the Defendant answered and the Cause heard and the Account directed This Court ordered the Defendant to answer to all Matters in this Bill not answered to in the former Cause but the Plaintiff not to reply nor to proceed further Dom. Grey al' contra Colvile al' 30 Car. 2. fo 397. THe Plaintiff the Lady Greys Bill is to be relieved for a debt of 1500 l. and Interest on Bond Lands purchased in Trust decreed Assets to to pay Judgment wherein John Colvile did bind himself and his Heirs to repay the same unto the Plaintiff her Executors and Assigns that the same might be paid out of the Lands which were purchased by the said John Colvile with his own proper Mony in the names of himself and the Defendants Wife to hold to them two for their lives and then to the Heirs of Colvile and the rest were purchased in the names of the said Defendants Morriss and Saunders in Trust for the said John Colvile and his Heirs That soon after and before the 1500 l. was paid the said John Colvile died and the right and equity of the premisses during the life of the said Defendants Wife is in Josia Colvile and the Reversion in Fee after the death of the said Wife will descend to the said Defendant Josia Colvile as Son and Heir of the said John Colvile and the profits are received by him or for his use that the said John Colvile dying intestate Administration is granted to Dorothy his Relict who pleads she hath no personal Estate whereupon the Lady Grey commenced a Sute at Law by filing an Original for her said debt against the Defendant Josia as Son and Heir of the said John Colvile and hath got Judgment thereon to have satisfaction for the said debt out of the Reversion of the Lands of John which descended in Fee to the said Defendant Josia Colvile and ought to have satisfaction accordingly but the said Defendant Josia pretendeth he hath nothing by descent in present but the Reversion of the Lands purchased in the names of John Colvile and his Wife after the death of his Wife whereas he and the other two Defendants were only Trustees for John Colvile and his Heirs and their Trust being now come to the Defendant Josia they are liable as Assets in equity for satisfaction of the Plaintiffs debts and the Plaintiff ought to be let into the immediate Possession and the said Josia also insists That the premisses are incumbred by a former Judgment of one Lease for 800 l. and the Plaintiffs Creditors and other the Creditors in their Suit seeking relief against the same Defendants upon the same Trust and Equity and to have their debts paid out of the said Lands they insisting they are Creditors by Judgment grounded on Original of the same day and date with the said Lady Grey and ought to be satisfied in equal degree and time The Plaintiffs Creed and the other Creditors insist Judgments to Attach Lands according to priority of Originals That they for so much as the Estate in Law of Wise is in the Heir that their Judgments ought to Attach the Lands according to priority of Originals and tho' the said Leke have obtained a Decree prior to the Creditors in these Suits yet the same is to be subject to the direction of this Court and ought not to take place but according to the Date of their Originals This Court it being admitted by all that the Original on which the said Lekes Judgment is grounded is prior to all the other Creditors Originals and that the Plaintiff the Lady Grey and Creeds Originals are next in priority and bear the same date one with another and ought next to be satisfied with other Judgments who Originally bear the same date declared that the Estate purchased in the Names of the Defendants Wise as aforesaid was a Trust for life attending the Reversion and so liable to make the several Plaintiffs Satisfaction for their Debts and should be enjoyed by the Plaintiffs against the said Wise and Josiah Colvile the Heir and the Court decreed that if the Estate of Wise as aforesaid were not sufficient then the said Reversionary Lands purchased in the Names of the said Morris and Sanders after the death of Sir John Tufton who hath an Estate for life in the said Lands should go towards Satisfaction of the said Debts Carr contra Bedford 30 Car. 2. fo 64. THe Bill being Will. that Edmund Arnold having no Child by his Will whereof he made the Defendant Bedford Executor gave several Legacies to several persons and uses and gave all the rest and residue of his Moneys and Personal Estate after Debts paid to and amongst his Kindred according to their most need to be distributed amongst them by his Executors saving such Legacies as should by his Will or any Codicil further dispose of and the Testator afterwards by Codicil gave other Legacies and desired that a care and regard should be had to the Plaintiff John Buncher The Defendant the Executor insists that he not knowing to what degroe of Kindred the bequest of the said residue ought to extend he had annexed two Schedules of Remorest Kindred and is advised until their several Claims were examined and setled by this Court he could not safely make a distribution This Court taking into consideration Devise after Debts and Legacies paid the Residue amongst his Kindred according to their most need this to be extended according to the Act for better Settlement of Intestates Estates to what degree of Kindred the Testator's bequest of the residue of his Personal Estate to his Kindred of most need could extend that the Act of Parliament for better setling Intestates Estates was the best Rule that could be observed as to the Limiting the extent of the word Kindred and
consented and agreed to by the Relict and Executrix and so decreed at the former hearing This Court declared Devise of a Personal Estate in Remainder after the death of J.S. is a void Devise and Vests wholy in J.S. she being Executrix That the Devise of the personal Estate to the Plaintiff in Remainder was a void Devise and the said Estate to the Testator immediately thereupon did Attach and vest in the said Alice his Relict and Executrix and the Defendant as her Executor was and is well intituled thereto and decreed accordingly Bredhust contra Richardson 31 Car. 2 fo 695. THat Samuel Russell by his Will gave to his three Daughters Sarah Christian and Elizabeth 540 l. to be divided amongst them viz. For each of them in particular 180 l. but if any one or two of them 540 l. To be divided amongst three Daughters and if one or two dyes without Issue the Daughters to Inherit each other one Marries the Plaintiff and dyes Sans Issue the Plaintiff is intituled to the 180 l. as Administrator to his Wife should dye without leaving a Child that the Daughters should Inherit one anothers Goods Monies Lands and Chattels which the deceased should leave behind them and that the Plaintiff intermarried with the said Elizabeth and that she died without leaving a Child before payment of the said 180 l. The Plaintiff insists That he as Administrator to the said Elizabeh his Wife is intituled to the said 180 l. and her share of the said Goods The Defendant insists That by the words and true intent of the Testator and the said Will the same doth not belong to the Plaintiff but came or in Equity belongs to the Defendants as Surviving Sisters This Court declared the Plaintiff is well intituled to the said 180 l. and decreed accordingly Turner contra Turner 31 Car. 2. fo 102. THat the Plaintiffs Father lent to Ayloff 700 l. and 200 l. at another time for which Ayloff Mortgaged Lands to the Plaintiffs Father and his Heirs with proviso that on payment of 600 l. to the said Plaintiff Father or Heirs then the premisses to be reconveyed to Ayloff that the Plaintiff is Executor to his Father and Brothers and so claims the Mortgages as vesting in the Executors of his Father and not in his Heirs The Defendant being the Son and Heir of the Plaintiffs eldest Brother deceased and Grandson and Heir to the said Plaintiff's Father insists That the Plaintiff and Defendant and others who claimed several shares and parts of the Plaintiffs Fathers personal Estate agreed to a Division thereof amongst themselves and a Division was made and Releases given of each ones demands in Law or Equity to the said Estate and the Plaintiff in particular released and the said Ayloff's Mortgage with the Mony due thereon with other things was set out and allotted to the Defendant by consent of all the parties and received by the Defendant in part of his share and the Plaintiff accounted to the Defendant for the profits of the said Ayloffs Mortgaged premisses received by him and afterwards in 1664 the Defendant had a Decree for the Mortgage Mony against Ayloffs Executor and received the same to which proceedings the Plaintiff was privy and the Defendant says it is unreasonable that the Plaintiff should now make a demand to the said Mortgage to unsetle matters so setled by his own consent but the Plaintiff insists he looked on the premisses at that time to come to the Defendant as Heir and knew not his own Titile thereto and the shares set out came but to 250 l. apiece and Ayloffs Mortgage was worth 800 l. This Court is of Opinion The Heir is decreed to have a right to a Mortgage in Fee and not the Executor that the Plaintiff ought to be relieved and had an undoubted Right to the said Mortgaged premisses and decreed the Defendant to repay all the Mony received by him thereon to the Plaintiff Bois contra Marsh 31 Car. 2. Land Legatees and Mony Legatees decreed to abate in proportion notwithstanding an Agreement to the contrary fo 441. THis Court declared That all the Legatees both Land Legatees and Mony Legatees ought to abate in propotion notwithstanding the Agreement to the contrary and that the said Agreement be set aside Audley contra Dom ' Audley 31 Car. 2. fo 848. THe Bill is to set aside a Lease made by Sir Henry Audley the Plaintiffs Father Power to make Leases if well pursued to the Defendants as Trustees for the Defendant the Lady Audley for 99 years if Henry Francis and Ann Audley Children of Sir Henry by the Defendant the Lady Audley should so long live paying yearly so much Rent as amounts to two parts in three of the yearly Value of the said Houses according to the best improved Value But the Plaintiff insists The said Lease is not made pursuant to the power reserved to the said Henry by a Deed of Settlement made by one Packington in 4 Car. 1. in Consideration of a Marriage between the said Sir Henry and Ann one of the said Packingtons Daughters and Coheirs by which it was declared That the benefit of such power in the said Sir Henry to make Leases was to be for the younger Children of the said Sir Henry by the said Ann his first Wife and the said Lease was not well gained from Sir Henry The Defendant insisted it was made pursuant to the power which was That Sir Henry should have power to make Leases for a provision of any thing he should have or otherwise as he should direct Which Matter was referred to the Lord Chief Justice Hales who declared the power good and that Sir Henry had pursued that power The Plaintiff insisted That the Rent reserved is altogether uncertain and lies only in Averment and that if the Value averred by the Plaintiff should in the least be disproved the Plaintiff would be Nonsuited in any Action And so insisted That it was proper for this Court to fix and establish that for a standing Rent which can be made out to have been two parts of the best improved Value at the time of making the said Lease and that the Rent so to be ascertained the Defendant might Covenant for constant payment thereof This Court on perusal of the said Lease and power and of the Lord Hales Opinion declared the said Lease to be good and sufficient and that unless proof be made of a greater value than the Sum of 290 l. Two parts in three of the improved value reserved as a Rent by a power the constant payment of such a Sum at the time of making the said Lease decreed to be paid whether the premisses rise or fall which hath been constantly paid by the Defendant the Lady Audley and accepted of by the Plaintiff that the said Sum must be taken as two parts of the full value of the premisses at the time of making the said Lease which or the greater
Value if so proved is to continue to be paid whether the said premisses rise or fall in Value and decreed accordingly Hethersell contra Hales 31 Car. 2. fo 845. THe Question in the Case is touching 2500 l. 200 l. allowed a Trustee for Charges and Expences in managing a Trust demanded by the Defendant for his Charges and Expences in managing the Trust in question which began in 1668. and continued till this Defendants Answer was put in in which time the Defendant received 20000 l. and paid the same all away to the Creditors and the Plaintiff had not surcharged the Defendant 6 d. This Court took till this day to consider what was fit to be allowed in a matter of this nature and having considered that the Defendant was a Friend to the Family and undertook the Trust at their great Importunity he having a considerable Estate when he undertook the Trust and considering the charges of Surveying the whole Estate setting and letting the same looking after Tenants adjusting their Accounts calling in their Rents returning Monies to Creditors and treating with and stating their Debts and procuring and agreeing with Purchasors and for Law charges and for keeping Servants and Horses and employing others in Journeys to London and elsewhere and his Care there lying from home a long time was of Opinion That the Defendant might well deserve the whole 2500 l. yet doth allow but 2000 l. which the said Defendant is to have Ray Vx ejus contra Stanhope 31 Car. 2. fo 809. THe Bill is That Sir Edward Stanhope Trust the Plaintiff Elizabeths Grandfather by Deed demised Lands to Trustees for ten years after the said Edwards death upon Trust that they should out of the Profits pay to the Plaintiff Elizabeth for her Maintenance 20 l. per annum until her Age of 21. and should further pay to the Plaintiff Elizabeth at her Age of 21. if she so long keep unmarried 1000 Marks for her Portion That the said Sir Edward died leaving Issue Edward Stanhope the Plaintiff Elizabeths Father his Son and Heir she being then 12 years of Age That after Sir Edwards death the Trustees did not intermeddle but left all to the management of the said Plaintiffs Father who received all the Profits and on that Consideration Edward Stanhope the Plaintiffs Father demised to Trustees the said premisses the Reversion of which he was seized in Fee expectant upon the said Term of 10 years and other Lands whereof he was Seized in Fee to hold for 20 years upon Trust to pay the Plaintiff Elizabeth 20 l. per Annum until her Marriage and 500 l. after her Marriage in such manner as in the said Deed for 20 years is expressed and the same was said to be made in consideration of the Preferment the said Sir Edward intended for the Plaintiff Elizabeth his Grandchild that the Plaintiff received the profits of the premisses in the said former Lease during the 10 years and profits of the Premisses in the said latter Lease so long as he lived and maintained the Plaintiff and in 1658. the Plaintiff Elizabeths Father dyed without Issue Male but in his life after the said Lease for 20 years setled the premisses with other Lands of 500 l. per Annum upon the Defendant his Brother without any consideration save natural Affection and the Defendant hath since received the profits that the Plaintiff Elizabeth was unmarryed at her Fathers Death and was his only Child and about nineteen years before the Bill exhibited she Marryed George Stanhope who dyed and about 7 years since she Marryed the Plaintiff Ray so to have Satisfaction of the 20 l. per annum from her Fathers Death to the time of her Marriage with George Stanhope and the 500 l. and Interest from her said Marriage but the Defendant refuseth to pay the same pretending the said several Terms are expired and that the Lands of 60 l. per Annum descended upon the Plaintiff Elizabeth by her Fathers permission in Satisfaction of the said Money but the Plaintiff insists the Lands descended to her from her Father were charged with 500 l. which she hath paid and she had no other provision made for her out of her Fathers Estate and that the Defendant had an Estate of 500 l. per Annum come to him by a voluntary Settlement from the Plaintiffs Father The Defendant insisted that if the Plaintiff Eliz. Father did make such demise for 20 years he had no power so to do being but Tenant for life by a Settlement made by the said Sir Edward and so the Defendant not liable to pay the Moneys and the Defendant claims the Lands and Premisses by vertue of a Fine and Settlement made by the said Edward Stanhope the Plaintiffs Father wherein the Defendant and his Brother George Stanhope joyned and though the said Defendant is the Heir Male of this Family yet he receives little there out of the said Estate the same being charged with 86 l. per An. and the Plaintiff hath not only enjoyed the said 62 l. per ann charged only with 500 l. but also as Administrator to her said Father received out of his Personal Estate 600 l. and if she should have the 500 l. in question also she would have a greater share out of the Estate Arrears of Annuity decreed to be paid and also a portion of 500 l. upon the Defendants owning it in a Letter than the Defendant This Court upon reading a Letter from the Defendant wherein he owns the 500 l. to be due to the Plaintiff Elizabeth on her Marriage and 20 l. per Annum in the mean time or to that effect declared the Defendant ought to pay the Arrears of the said 20 l. per Annum from the death of the Plaintiffs Father to her Marriage with her first Husband and also the 500 l. with the Interest thereof from the time it was raised out of the profits and decreed the same accordingly Dom. Blois al' contra Blois al' 31 Car. 2. fo 723. THe Bill of the Plaintiff Will. Dame Jane Blois and of Jane her Daughter by Sir William Bloys is viz. that the said Sir William Blois Father of the said Jane the Infant being Seized of Lands by his Will gave all his Real and Personal Estate to the Defendant Dame Elizabeth to the Plaintiff Dame Jane and to the Defendant Mary Brook and Abigal Hodges provided that his Son Charles Blois should have 300 l. per Annum thereof and all his Goods should be equally divided amongst his 4 Children as soon as the said Charles should by a Match raise 9000 l. to be paid to his Sisters and made the four Children Executors and dyed whereby the Plaintiff Dame Jane and the rest of the Executors were Intituled to all the Real and Personal Estate to them and their Heirs as joynt Tenants in Trust nevertheless for the said Elizabeth and Mary and the Infant Plaintiff until the Sum of 9000 l. should be raised
not having made an Appointment it ought to be taken for her Intention that the Plaintiff should have the Mony and therefore decreed the Defendants the Trustees to convey to the Plaintiff and deliver to him 1400 l. and the Securities for the 2000 l. Green contra Rooke 31 Car. 2. fo 351. THat Lawrence Rooke Devise Father to the Defendant Heyman Rooke and to the Plaintiff Mary being seised in Fee or Fee-tail or other Estate of Lands by Deed of the 26th of August 1650. granted the premisses to Edward Scot and others for 80 years if he so long lived and afterwards conveyed the sameon the 27th of the same Month unto Sir Henry Heyman and Peter Heyman and their Heirs for the term of his life and by Deed the 20th of October then next following and by a Recovery in pursuance thereof the said premisses were setled on the said Sir Henry and Peter Heyman and their Heirs for the life of the said Lawrence Remainder as to part to the use of Barbary Wife of the said Lawrence for her life for a Joynture and after as to part to the said Sir Henry and Peter Heyman for 99 years in Trust to raise 1000 l. for the portion of the eldest Daughter of the said Lawrence and then to the use of the first Son of the said Lawrence in Tail Male with the Remainder over That the said Lawrence and Barbara are dead and the Defendant Heyman Rooke is his first Son and the Plaintiff Mary is his eldest Daughter and the Portion of 1000 l. is due to her and the same being unpaid Peter Heyman the surviving Trustee assigned the term of 99 years to the Plaintiff Greene to enable him to raise the Mony and the Defendant Heyman Rooke hath mortgaged the same premisses to the other Defendants so the Question is Who hath the right or equity of Redemption and the Bill is also to have the Plaintiff Maries Portion paid or the equity of Redemption foreclosed The Defendant Heyman Rooke by Plea insisted That George Rooke his Grandfather by Will in 1647. devised the premisses unto Lawrence Rooke his eldest Son and Father to the Defendant Heyman Rooke for life only Remainder to the first second third and fourth Sons of the said Lawrence in Tail Remainder to John Browne and others for their lives in Trust for the better securing and preservation of the several Remainders limited unto the several Sons of the said Lawrence Rooke with Remainders over That the said George Rooke died without revoking or altering the said uses limited in his Will and so Lawrence Rooke could not by the said Deeds or Recovery bar or cut off the Remainder limited in and by the said Will in regard the said Browne and the other Trustees for preserving of the contingent Remainders were living since 1650. in which year the term of 99 years was created This Court declared Devise to Father for life Remainder to the first Son c. Remainder to Trustees for 99 years to support the Remainders it s a good term to support the Remainders notwithstanding the same is limited and inserted after the limitation to the first Son it being in the case of a Will That the term limited to the Trustees in the Will for their Lives for the preservation of the contingent Remainders to the several Sons of the said Lawrence Rooke was a good Term and a State to support the said contingent Remainders notwithstanding the same is limited to the said Trustees and inserted in the said Will after the limitation to the first and other Sons of Lawrence Rooke in Tail Male for the same being in the Will and the intent of the Testator plainly appearing so in the Will they held the said Plea and Demurrer to be good and so dismist the Plaintiffs Bill Trethervy contra Hoblin 26 Car. 2. fo 114. THe Plaintiff being a Purchaser of the premisses Bill to discover a Title calls the Defendant to discover his Title who insists on a long Lease of a 1000 years which was found by Verdict for the Defendant And the Defendant insists for Cost Costs for that the Plaintiffs Suit in this Court was causlesly and vexatiously brought by the Plaintiff The Plaintiff insists 〈◊〉 That he being not able to try the validity of the said Lease at Law during the life of Oliver one of the Defendant This Court is satisfied Suit for discovery and to preserve Testimonies and the Plaintiff to pay no Costs that the Plaintiff had good ground to bring this Suit for a discovery and relief and to preserve the testimony of his Witnesses it falling out to be a severe Case upon the Plaintiff so no reason for the Plaintiff to pay any Cost either at Law or in this Court Boughton contra Butter 32 Car. 2. fo 379. THis Cause was referred to Sergeant Rainsford to certifie touching the Inclosure whether advantagious and whether the Parties had consented thereunto who had drawn up a Certificate Certificate ordered to to be filed though not delivered in the life of the Certifier all written with his own Hand but he dying before he had declared the same It was prayed by the Plaintiff that the said Certificate might be filed and taken to be authentick as if he had delivered the same to either party The Defendant insisted That the said Certificate had no date and that the Sergeant never intended to deliver the same This Court Ordered the said Certificate to be filed notwithstanding the Objections made thereto by the Defendant Tucker contra Searle 31 Car. 2. fo 423. THat John Bassano the Plaintiff Frances Father by deed 20 July 1640. Marriage Settlement in consideration of a Marriage between him and Elizabeth the Plaintiff Frances Mother and a Marriage Portion Covenanted to stand seized of Lands to the use of the said John and Elizabeth for their lives and after to the first Son of the said John and Elizabeth and so to the second third and other Sons and the Heirs of their Bodies remainder to the right Heirs of the said John Bassano the Elder for ever on Condition and Limitation that if the said John Bassano should have Issue Female and not Issue Male by Elizabeth then his Right Heirs to pay the first and second Daughters of the said John by the said Elizabeth 300 l. a piece to be chargeable on the said Lands and if more than two Daghters then the said Lands for the full value of them to be sold should equally be divided amongst such Daughters that the said Bassano had no Issue Male by Elizabeth but had Issue Female viz. Elizabeth their Eldest Daughter the Plaintiff Frances their Second and another Elizabeth their youngest that Elizabeth the Eldest died in the life of her Father and Mother and that at the death of John the Father there being only the Plaintiff Frances living but the said Elizabeth the Mother being ensient with Elizabeth the youngest Daughter of the said John Bassano
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
or their Testator could not come sooner than when the Title was cleared Mean profits Decreed tho' a long time since and the Objection raised from the shortness of the former decree is not material to prejudice the Plaintiffs demand for that there could not then be any decree for profits the said Sir James pretending Title as Tenant in Tail Account for the mean profits from the time the right accrewed and that Sir Thomas was but Tenant for life so now the Right being cleared the Plaintiff ought to have an account of the mean profits from the time the Right accrewed and decreed accordingly The Defendant Appealing from the said Decree made by the Lord Chancellor Finch to the Lord Keeper North the Case was heard ab integro and the Lord Keeper on hearing the decree in 1650. and the decree of the Lord Finch read declared that there was nothing in the case but the loss of time and though the Decree in 1650. The mean profits tho' omitted in a former decree decreed now was silent as to the mean profits yet the same ought to be no Objection to the Right and though it was omitted by the Decree in 1650. yet it ought in Justice to have been decreed for the mean profits as well as for the right of the Title it being an accessary to the decree and it ought to be judged nunc pro tunc there being no Bar against it and confirmed the Decree made by the Lord Finch Girling contra Dom ' Lowther al' 34 Car. 2. fo 148. THat Sir Thomas Leigh deceased late Father of the Defendants John Thomas and Woolley Leigh became indebted to Edmond Girling deceased in several Sums of mony by Bonds and the said Girling became bound for the said Sir Thomas for several great Sums of mony against which Securities Sir Thomas gave the said Girling Counterbonds and in Hillary Term 28 Car. 2. Sir Thomas gave a Judgment of 1000 l. to the said Girling for the payment of 530 l. and in Aug. 1669. Sir Thomas made his last Will in writing and thereby devised to the Defendants Sir John Lowther John Currance and Edward Badby Executors of his said Will several Lands Lands and Tenements for the payment of his debts and to be by them sold for that purpose That the Swan Inn in St. Martins Lane being sold there ariseth a Question touching the Mony raised by such Sale whether it were well applied or not The Case being viz. That Sir Thomas Leigh upon his Marriage with Hannah Relfe Daughter of Anthony Relfe whilst he was under Age by Articles previous to the said Marriage with the said Hannah agreed to settle on himself and the said Hanuah his intended Wife and such as they should have between them Lands of 700 l. and in Consideration thereof the said Anthony Relfe was to settle and did settle upon the said Thomas and his Heirs Lands of 200 l. per Annum whereupon Sir Thomas Leigh July 1661. makes a Settlement upon himself and the said Hannah his intended Wife and their first second and other Sons in Tail his Mannor of Addington and other Lands in Addington and several Lands in Com' Surrey and Keut That afterwards in May 1665. Sir Thomas Leigh mortgaged to Mr. Peck for 2000 l. several Lands in Middlesex and Norfolk and afterwards in December 1665. those Lands and the moiety of the Swan Inn in St. Martins and the Reversion thereof were granted to Trustees upon several Trusts which by Deed 15 June 1668. appears to be performed and satisfied and thereupon on the same 15 June 1668. the said premisses were mortgaged to Sir John Lowther for 2500 l. which 2500 l. was raised and paid to Sir John Lowther out of the profits and by sale of the said Swan Inn which was formerly by voluntary Conveyance dated and setled by the said Sir Thomas Leigh upon the two Defendants Thomas and Woolley Leigh for Natural love and affection Voluntary Settlement That Sir John Lowther in April 1679. assigned the said Mortgage by conveying to one Burton and others the Mannor of Thorpe in Surrey and Shoelands and other premisses in Trust for the payment of such of the debts of Sir Thomas Leigh as should any ways incumber or disturb the Purchaser of the Swan Inn which said Lands are sufficient to pay the Plaintiffs debts and the Testators Ingagement being 1331 l. which debt is to be paid the Plaintiff by Decree of this Court The Defendants the Leighs insist That the Mony raised by the sale of the Swan Inn although paid to redeem the other Estate in mortgage to Sir John Lowther ought not to be applied so that the Land ought to be discharged of the Mortgage-mony or of what was paid to redeem the same but the said Lands ought still to be a Security for the said Mony to the use of the younger Children for whose benefit the said Swan Inn was setled and although the said Settlement was voluntary yet the same being a provision for younger Children ought not to be adjudged fraudulent as to a subsequent Judgment which the Paintiffs is or however not as to a subsequent voluntary Devise of their Father under which only the Creditors by Bond come in and therefore as to them the said mortgaged Lands ought to be charged with the said Mony raised by the sale of the said Swan Inn with Interest since it was paid to redeem the said Estate precedent to any benefit any Creditor by Bond can have out of the said Lands This Court declared Voluntary Conveyance though a provision for younger Children not to prevent satisfaction of subsequent Judgments That the said voluntary Conveyance ought not to stand in the way to prevent satisfaction of a subsequent Judgment for good Considerations and that the Monies due on the Plaintiffs Judgment and the Monies raised by sale of the Swan Inn was well applied to discharge the Mortgage on the other Estate whereby the mony due on the Judgment with Interest may be the more speedily raised by sale thereof and the mony raised by sale of the said Inn after the Judgment satisfied with Interest ought to stand secur'd for the benefit of the younger Children Mony applied to take off Mortgages satisfie Judgments and after to pay Bond-Creditors and be raised by sale of the said Estate and by Rents and Profits in the mean time precedent to the other Creditors not on Judgment and after the said Judgment and provision for the younger Children satisfied the residue to be applied to the other Creditors and decreed accordingly Comes Arglas contra Henry Muschamp 35 Car. 2. fo 524. THat Thomas Relief against over-reaching Bargains first Earl of Arglas the now Plaintiffs Father and William Earl of Arglas the Plaintiffs Brother were seised in Fee of the premisses in question and made divers Settlements thereof by which in case of failure of Issue Male of the said William the said Estate should come to
Jane his Daughter for her life and after to John Colley her Son and Heir and his Issue Male and for want of such Issue in Trust for the Daughters of the said Jane and after the death of Jane and John Edward was intituled and he together with Sir John Wirley the Surviving Trustees upon Edwards marrying with the Plaintiff did Demise to the said Defendants the Trustees the Mannor-house c. for the Term of 20 years in Trust to pay certain Annuities therein mentioned and to permit Edward Colly for his life to receive the profits of the residue and in case the Marriage took effect and the Plaintiff Ann Survived him then to pay her 130 l. per Annum for her life and after Edwards death to permit the Heirs males of their two Bodies to receive the residue of the profits and for default of such Issue male there is provision for Daughters and supposes the residue of the profits may be limited to any Issue male of Edwards and for want of such Issue to permit the Defendant Jane and Ann since deceased Sister of the said Edward to receive the profits of the Estate as the Deed expresses and that he remembred no other Agreement than what is mentioned in the said Deed and sets forth the Deed of 21 Jan. 26 Car. 2. whereby the said Defendants the Trustees were intituled by Sale or Leases to pay debts and after payment thereof if the Plaintiff Ann should be then living should permit her to receive the residue of the profits for her life and afterher decease the right Heirs of Edward to receive the same that after the time of executing the last mentioned Deed the said Edward made his Will and after some Legacies took notice of the said Deed bearing date the day before and it was declared thereby that the Defendants the Trustees should out of the profits pay all his debts and being fearful those profits should not do did Devise to them all the rest of his personal Estate and made them Executors and after debts paid the residue to the Plaintiff Ann. That Nov. 1676 Edward Colley died after which the said Defendant proved the Will and entred on the Estate But the Defendants Ciber and Jane his Wife insisted That the said Defendant Jane being the only Sister and Heir to Edward Colley are after his debts intituled to the premisses for a long Term to commence after the death of the Plaintiff Ann and have sold their interest to the Defendant Benson Upon reading the said Deed and Will A Term in gross and not to be Entailed the Lord Keeper North was of opinion that the said Term so as aforesaid Created was a Term in gross and so not capable of being intailed and therefore it could not descend to the Heir of Edward Colley but that the same should be liable to the payment of his Debts and that the Plaintiff Ann should hold the 130 l. per An. for her life and after the said Debts paid the Plaintiff Ann should receive the profits of the whole Estate for her life charged with the said Annuity and the said Plaintiffs were to redeem the Mortgage to the Defendant Woodward But as to the Residue of the said Term after the death of the Plaintiff Ann and debts paid how the same should be disposed a Case was ordered to be made A Case being Stated this Cause came to be heard thereon before the Lord Chancellor Jefferies and all the former pleadings being opened as also the Defendant Cibers cross Bill which was to this effect viz. to have the said Term of 820. years to attend the Inheritance and the Case stated appearing to be no otherwise than before is set forth His Lordship on reading the said Deed and Will A Residue of a Term after debtspaid and a life determined Decreed not to the Residuary Legatee but to the Heir the Question being who shall have the remainder of the Term in the said Lease whether the Plaintiff Ann as Residuary Legatee or whether she shall have only an Estate for life his Lordship declared that the Deed and Will do make but one Will and by them there was no more intended to the Plaintiff Ann than an Estate for her life and that she ought to enjoy the whole Mansion House cum pertin ' during her life and also the overplus of the profits of the Residue of the said Estate after Debts and Legacies paid and the Defendant Benson who purchased the Inheritance of Ciber to enjoy the same discharging all things as aforesaid Hall contra Dench 36 Car. 2. fo 799. THat the Plaintiff Grace Hall Will. Revocation being Daughter of William Knight deceased who was Son of Susanna one of the Sisters and Coheirs of Thomas Bridger deceased which said Thomas Bridger being seized in Fee of Lands in Binstead and Middleton and having no Children made his Will in 1663. by which he gave to Tho. Knight Son of the said Willi. Knight all his Lands in Binstead to the said Thomas Knight and the Heirs of his Body and for want of such issue then to the Plaintiff Grace and the Heirs of her Body with Remainders over and by the same Will Devised one Moiety of the Lands in Middleton to the said Thomas Knight and the Heirs of his Body with the like Remainders over and sometimes after the said Will the said Thomas Bridger Mortgaged the said Lands in Binstead to John Comber and his Heirs for 500 l. and the said Bridger repaid the 500 l. and had the Mortgage delivered up and Cancelled but no Reconveyance of the Lands and that the said Comber after that was but a Trustee for Bridger the Mortgagee who in 1682. declared that the Will he made in 1663. should stand and be his last Will and then denied But the Defendant Dench having got the Cancelled Deed in his Custody and the Plaintiff brought an Ejectment under the Title of the Will and got a verdict for the Lands in Middleton but the Defendant at the Tryal setting up a Title in the Defendant Comber upon the Cancelled Mortgage for the Lands in Binstead a Verdict passed for the Defendant so to have the said Mortgage deed delivered up and the Plaintiff to enjoy the premisses according to the said Will is the Bill The Defendants as Co-heirs at Law to Bridger insist That the Testator Bridger never intended that the Estate should go as that Will directed in regard he soon after the said Will Mortgaged the same to Comber and besides the Legatees and Executors in the said Will were most of them dead before the said Bridger and the Mortgage money was not paid till after the Estate forfeited and that the Mortgage to Comber was an absolute Revocation of the said Will and upon an Ejectment brought by the Plaintiff under the said Will the Defendants obtained a Verdict for the Lands in Binstead wherein the validity of the said Will was in issue The Plaintiffs insist That the Verdict obtained
not to be shaken yet nevertheless the Case being new and great referred it to the Opinion and Determination of the Lord Chancellor His Lordship held the Demurrer good and Order to stand Skinner contra Kilby 2 Jac. 2. fo 72. THe Bill is to have the benefit of a Bequest by the Will of Robert Kilby The Will being viz. Will. If my Son Richard Kilby should behave himself towardly and undertake the payment of my debts and Legacies then he to have all my Lands in Tredington The Son Devisee of Lands upon good behaviour for his mis-behaviour decreedagainst him if he behave himself otherwise or to neglect to pay my debts and Legacies as aforesaid then he to have but 5 s. and left it to the direction of his Executrix Jane Kilby the Defendants Mother and also Mother of the said Richard Kilby the Plaintiffs Father That the said Richard waving the said Devise made to him and neglecting the payment of his said Fathers debts and Legacies the said Jane undertok and paid the same being intituled by the said Will and by her Will Bequeathed to the said Defendant the premisses This Court upon reading the said Will of Robert Kilby the Testator which being as is aforesaid declared that according to the said Will the said Jane was well intituled to the premisses and that the Defendant ought to enjoy the same and could not relieve the Plaintiff but dismiss the Bill Nayler contra Strode 2 Jac. 2. fo 473. THe Surrender of a Copyhold Estate by an Infant of 4 or 5 years of Age allowed of by this Court Surrender of a Copyhold by an Infant of 5 years of Age. Yet the Lord of the Mannor insisted he never heard of any admittance in that Mannor at such an Age. Cloberry contra Lymonds 2 Jac. 2. fo 1069. LAnds extended in 1 Car. 1. and held in Extent and a Bill exhibited to redeem and being not redeemed the Bill dismist in 16 Car. Upon the buying the Equity of Redemption of Lands in Extent Account decreed from the time of the purchase 1. and afterwards he who had the Extent by virtue of the said dismission sold the said premisses to the Defendant But the Plaintiff having since bought the Equity of Redemption seeks a Redemption This Court notwithstanding the dismission and length of time ordered an account from the time of the Purchase but no account from any time before but the profits to go against the Interest to that time Newte contra Foot 2 Jac. 2. fo 695. THe Defendant insists Depositions suppressed because the Sollicitors Clerk in the Cause did write as a Clerk in the Execution of the Commission That the Depositions in this Cause are irregulerly taken and ought to be suppressed for that Mr. Samuel Vnderwood who was Clerk to Mr. Edward Gibbon Sollicitor for the Plaintiff in this Cause did write as Clerk in Execution of the said Commission under the said Commissioners and the said Vnderwood confessed the same and solicited the Matter for which Reasons the Defendants Commissioners refused to joyn in the Execution of the said Commission it being of great mischief for Solicitors or their Clerks to be privy to the taking of Depositions in such Causes as they Solicite This Court was well satisfied that the said Depositions were for the Reasons aforesaid irregularly taken and doth order that the same be hereby suppressed and that the Six Clerks Certificate for the regular taking of the Depositions be discharged Griffith al' contra Jones al' 2 Jac. 2. fo 353. THat Peter Griffith being seised in Fee of Lands Will. and possest of a personal Estate of 20000 l. in 1681. by his Will devised to his Brother the Plaintiff 200 l. to the Plaintiff Shonnet Price and Dorothy Parry the Daughters of his Sister Shonnet 150 l. apeice c. and to the Sons and Daughters of his Brother and Sisters not mentioned by name in his Will 10000 l. equally between them which said Legacy doth belong to the Plaintiffs John Lloyd and Alice Williams being the only Nephew and Neece not named in the Will and the overplus of his Estate he obliged the Executors should pay and and distribute amongst his Brothers and Sisters Children and Grandchildren and the rest of his poor Kindred according to his Executors discretions and the Plaintiff claims the overplus of the said Estate as being all the Brothers and Sisters Children and Grandchildren of the Testator and poor Kindred that can take by the Will The Defendants the Executors insisted That they conceive the distributing and apportioning the said surplus is left to them by the express words of the Will and that they ought to distinguish the Grandchildren of the Testators Brothers and Sisters whose Fathers and Mothers were dead before the Testator and had no particular Legacies by the Will and consider the Condition and number of Children of the said Kindred and give most to those that most want and conceived that such of the Plaintiffs as have particular Legacies ought to have but a small one if any part of the surplus and the Defendants crave the directions of this Court how far the words Poor Kindred shall Extend to what Degree of Relation This Court decreed Legacies to Poor Kindred how far to be extended That the surplus of the said Estate be distributed to and amongst the Testators Brothers and Sisters Children and Grandchildren and as to the rest of the poor Kindred according to the Act of Parliament for distributing Intestates Estates and no further and to be distributed in such shares and propotions as the Executors in their discretions should think fit and whereas there are debts owing to the Testators Estate and the debtors poor but propose to pay as far as they are able This Court decreed Poor Debtors to the Testator who left a great Estate the Executors left at liberty to compound any debt That the Executors be at liberty to compound any debt owing to the said Estate if they should think fit Creditors on Judgments and Bonds decreed Creditors on Judgment and Bonds decreed to redeem Mortgages to redeem Mortgages towards satisfaction of their debts fo 843. Bernry contra Pitt 2 Jac. 2. fo 373. THe Bill is That the Plaintiffs Father being only Tenant for life of a real Estate which after his death would come to the Plaintiff and the Plaintiffs Father allowing the Plaintiff but a small subsistance and the Plaintiff borrowed of the Defendant 1000 l. in 1675 and entred into Judgment of 5000 l. Defezanced for the payment of 2500 l. after the Plaintiffs Fathers death which hapned in 1679. The Defendant insists That he lent the Plaintiff 1000 l for which the Plaintiff gave Bond and Warrant of Attorny to confess Judgment to the Defendant of 5000 l. which was Defezanced that in case the Plaintiff should out-live his Father and in one Month after his Fathers death pay the Defendant 2500 l. and if the Plaintiff
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
or any Estate therein contained or to dispose of the said Honours Manours and Lands in any other sort or to any other Person or Persons and his or their Heirs or for any other purposes and the same his Mind Intent and purpose should signifie and declare in Writing under his Hand and Seal in the presence of six Credible Witnesses three whereof to be Peers of this Realm and should pay to his Trustees or any of them the Sum of Six pence with intent or purpose to frustrate or make void the said Indentures That then and not otherwise and immediately after such Signification Declaration and payment or tender of payment of 6 d. as aforesaid the said Use and Uses Estate and Estates Trusts Confidence Intents and Purposes and all and so much of the premisses whereof the Duke should make such Signification or Determination should cease Determin and be utterly void to all Intents Construction and Purposes whatsoever and that then and from thenceforth it should and might be lawful for Duke by such Writing or any other Deed or Writing Subscribed Sealed and Testified as aforesaid to declare new or other Use or Uses Trust or Trusts of all or so much of the premisses whereof the Duke should make any such Signification or Declaration or otherwise to dispose of the premisses or any part thereof at his Free Will and Pleasure any thing in the Deed to the contrary notwithstanding And for the further prevention of the mischief and Inconveniences that might attend any future or suddain Surreptitious Will Covenant which might at any time defeat his Recited Will which he declares to have made upon Mature Deliberation Covenants for himself his Heirs Executors and Administrators with the Duke of New-castle and his Trustees that he would not Revoke Annul or Discharge the said Will or any the Legacies thereby devised unless by some instrument Sealed and Executed in the presence of many and such Witnesses as are in the said Proviso specified declared and described for Credible Witnesses within the said Proviso according to the Intention Literal Sense and true meaning of the Duke expressed in the said Proviso He denies the said Deed was obtained by Surprise but that the Duke executed the same in the presence of many Credible Witnesses and that the Duke left the Deed and Will in his keeping And as to so much of the Bill as requires the Defendant to give an account of what part of the said Dukes Personal Estate came to the Defendants Hands he is Advised by the Rules of this Honourable Court that he is not Compellable to Answer thereunto for that it appears by the Plaintiffs Bill that at the time of the Exhibiting thereof the Plaintiffs were not intituled to make such demand or to have such account it thereby appearing of their own shewing that they have not proved the said Will of 87. but that the same was and still is under Controversie undetermined in the Prerogative Court whereof or as to that part of the Bill he demurs As to the Objection That it was a Concealed Will and Deed the Defendants insist that it was done silently but the Duke would have it kept Secret that he might be free from Trouble and Importunity And they insist That as to the last Will of 85. That the Duke Advised with Councel to know whether a Will made after the Settlement would avoid or impeach the Settlement was answered that it would not and that Proviso must be strictly pursued whereupon he was well satisfied and that the said Deed ought to be supported and not set aside in Equity being made upon such Meâ—â—torious Consideration of Blood Merit c. The Plaintiffs insist That the said Deed if any such being a Voluntary Settlement only that the Will of 87. is a good Revocation thereof in a Court of Equity So that the great Question was if the said Deed it being found to be valid at a Trial at Law is Revoked by the said last Will according to Equitable Intention or Construction This Cause having been Debated and Argued several times by Learned Councel and afterwards by three Judges viz. my Lord Chief Justice Holt the Lord Chief Justice Treby and Mr. Baron Powell it was agreed by them that the Deed was a good Deed well executed and not Revoked by the Will of 1687. The Lord Chief Justice Treby's Argument in short was thus In 1675. the Duke made his Will and declares in respect that the Earl of Bathe was his Kinsman and had done many Kindnesses to him and his Family the Earl should have the greatest part of his Estate and gives several Legacies to one Monck and then he makes a Deed of Settlement in 1681. tho' the Limitations by the one and the other differ but it is not made to revoke but to confirm the Will Both the Will of 1675. and Deed of 1681. do agree in giving the greatest part of the Estate to the Earl of Bathe but the Proviso in the Deed makes the dispute and then there is a Will of 1687. wherein a larger Estate is given to the Dutchess and Colonel Monck c. and desires the Honour of Potheridge may be established on the Moncks The Plaintiffs Bill is to establish the Will of 1687. and set aside the Deed of 1681. and Will of 1675. And the Deed on the Hearing of the Cause was directed to be tried and a Verdict for the Defendant and the Plaintiff hath acquiesced under it and so this Deed must be taken as a good Deed and Conveyance without any suspicion for the Right was tried and the whole Contents tried and if it were good at Law whether there be cause to set it aside in Equity is the Question He was of Opinion That the Deed was a good Deed and ought not to be impeached in this Court The Plaintiffs Arguments against the Deed are 1. Surprize 2. Concealment 3. That the Will of 1687. is a Revocation in Equity 4. That there is a Trust As to the Surprize He observed they did not make use of the word Fraud in gaining the Deed but that it was something put upon the Duke for want of deliberation He said he was not satisfied that there was any Surprize on the Duke for he was not languishing at that time under any Sickness but it was done and executed in good Company and after dinner with great Consideration both before and at that time They pretend a want of Circumstances in the execution whereas Sir William Jones was advised with before the Deed sealed and present at the time of the sealing Several other Circumstances were insisted on by the Plaintiffs but none are sufficient to set aside the Deed. The Deed of 1681. and the Will of 1675. are not inconsistent tho' they differ in the limitation of the Estate But by both the greatest part of the Estate is given to the Earl of Bathe Tho' they could not find Instructions for drawing the Deed tho' the Deed was