Disorder and most Proceedings informal and in the English Tongue in such a mean Court where are few Precedents to guide them where the Parties themselves are not empowered to draw up their own Proceedings as here above but the whole is left to the Steward who is a Stranger to the Person concerned and therefore 't is hard and unreasonable that Mens Purchases should be prejudiced by the Ignorance Unskilfulness or Dishonesty of a Steward or his Clerks that there is scarce one Customary Recovery in England which is exactly agreeable to the Rules of the Common Law that the questioning of this may in consequence endanger multitudes of Titles which have been honestly purchased especially since there can be no aid from the Statutes of Jeofailes for they do not extend to Courts Baron 'T was further urged That there was no Precedent to enforce Lords of Mannors to do as this Bill desired that the Lords of Mannors are the ultimate Judges of the Regularity or Errours in such Proceedings that there 's no Equity in the Prayer of this Plaintiff that if the Lord had received such Petition and were about to proceed to the Reversal of such Recovery Equity ought then to interpose and quiet the Possession under those Recoveries That Chancery ought rather to supply a Defect in a Common Conveyance if any shall happen and decree the Execution of what each Party meant and intended by it much rather than to assist the annulling of a Solemn Agreement executed according to Usage tho' not strictly conformable to the Rules of Law For which Reasons it was prayed that that Appeal might be dismissed and the Dismission below confirmed and ' was accordingly adjudged so The Countess of Radnor versus Vandebendy al. APpeal from a Decree of Dismission in Chancery the Case was to this effect The Earl of Warwick upon Marriage of his Son settles part of his Estate upon his Lady for a Jointure and after failure of Issue Male limits a Term for 99 years to Trustees to be disposed of by the Earl either by Deed or Will And for want of such Appointment then in trust for the next in Remainder and then limited the whole Estate in such manner as that a third part of a Moiety thereof came to the Lord Bodmyn the Appellants late Husband in Tail general with the Reversion in Fee to the Earl and his Heirs The Son died without Issue the Earl by his Will appoints the Lands to his Countess for so many years of the Term as she should live and to her Executors for one year after her Death and charges the Term with several Annuities some of which remain in being The Respondent's Father purchased part of these Lands from the Lord Bodmyn after his Marriage and had the Term assigned to him The Lord Bodmyn dyes the Appellant brings her Writ of Dower in C. B. the Respondent pleads the Term for 99 years and she Exhibits her Bill praying that she may after the discharge of the Earls Incumbrances have the benefit of the Trust as to a third of the Profits of this Term and upon hearing the Cause the Lord Chancellor saw no cause to give Relief but dismissed her Bill There were many Particulars in the Case and many Proceedings before both in Law and Equity but this was the whole Case as to the general Question Whether a Tenant in Dower shall have the benefit of the Trust of a Term which is ordered to attend the Inheritance against a Purchaser after the Marriage The Lord Chancellor Jeffryes had been of opinion with the Appellant but the Cause coming to be heard again a Dismission was decreed and now it was argued against the Decree on behalf of the Appellant that Equity did entitle her to the Thirds of this Term that a Tenant by the Curtesie is intitled to it and br the same reason a Tenant in Dower that the Term created by the Settlement was to attend all the Estates limited by that Settlement and in Trust for such Persons as should claim under it which the Appellant doth as well as the Respondents that it was in consequence to attend all the particular Estates carved or derived from the others the Term was never in its creation designed for this purpose to prevent or protect against Dower that in the Case of Snell and Clay the Tenant in Dower had it in Chancery against the Heir at Law and that this was the same Case a Purchaser with notice of that Incumbrance of Dower the Vendor being then married this was an Estate of which the Husband was full Owner and received the whole Profits that in proportion 't is as much a Trust for her for her Thirds during Life as it is a Trust for the Respondents for the Inheritance she claims under her Husband who had the benefit of the whole Trust If there be a Mortgage by an Ancecestor upon the whole Eqinty will permit her to redeem paying her proportion according to the value of her Thirds for Life and the same reason holds in this Case and there 's no Precedent in Equity to the contrary And many Precedents in favour of Tenant in Dower were cited and much Reason well urged from parallel Cases to entitle the Lady to her proportion of the Trust of this Term. On the other side 'T was said that Dower is an Interest or Right at the Common Law only that no Title can be maintained to have Dower but where the Common Law gives it and that is only to have the Thirds of that which the Husband was seized of and if a Term were in being no Feme was ever let in but after the determination of that Term that this is the first pretence set up for a Dower in Equity the Right is only to the Thirds of the Rent reserved upon any Term and 't is a new thing to affirm that there shall be one sort of Dower at Law and another in Chancery that 't is and always hath been the common received Opinion of Westminster-hall and of all Conveyancers that a Term or Statute prevents Dower that if a Purchaser can procure it the same becomes his Defence that this is what the Wisdom of our Forefathers thought fit to use and tho' some Mens reasoning may render it in appearance as absurd yet the consequence of an alteration will be much more dangerous than the continuance of the old Rules that tho' this Lady's Case be unfortunate yet the multitude of Purchasors who have bought upon full consideration and have been advised and still conceive themselves safe under this Law will be more unfortunate if the Law be broken Then ' was argued That there could be no Equity in this Case for it must be not only from the Party Appellant but also against the Respondent and that 't is not because he bought the whole Her Portion her Quality and her being a Wife create no Equity as to the Purchaser 't would perhaps be prevalent against an Heir but
yet doth further agree That this Parish-Church was never presented to by any Person at all But he insists upon it That now it is void the King hath a Right to present to it by force of his Prerogative upon this Avoidance tho' the Act saith That the Bishop shall present after the Decease of Dr. Tennison or the next Avoidance The Query is whether the King's Prerogative can operate upon this Vacancy of this Benefice thus filled and thus avoided against the express Words of an Act of Parliament It will be necessary to repeat the Words of the Act and they are to this Effect That all that Precinct or District of Ground within the Bounds and Limits there mentioned from thenceforth should be a Parish of it self by the Name of the Parish of St. James's within the Liberties of Westminster and a Church thereupon built is dedicated by the Act to Divine Service and that there should be a Rector to have the Care of Souls inhabiting there and then after a full Commendation of the Merits and Services of Dr. Tennison in that Place the now Reverend the Bishop of Lincoln It doth Enact and Ordain him to be the first Rector of the same and that the said Doctor and his Successors Rectors of the said Parish should be incorporated and have a perpetual Capacity and Succession by the Name of the Rector of the said Parish Church and by Virtue of that Act should be enabled by the Name aforesaid to sue and be sued to plead and to be impleaded in all Courts and Places within this Kingdom and should have Capacity to hold and enjoy purchase and acquire Lands Tenements and Hereditaments to him and them Rectors thereof for ever over and above what is given and settled by that Act to any Value not exceeding 200 l. per Annum Then it Enacts That the Patronage Advowson or Presentation after the Decease of the said first Rector or Avoidance thereof shall or should belong and appertain and by that Act shall or should be vested in the said Bishop of London for the time being and his Successors and in Thomas Lord Jermyn and his Heirs for ever Then it Enacts That the first Rector after such Decease or Vacancy shall be presented or collated by the Bishop of London for the time being and the next to succeed him shall be presented by the Lord Jermyn and his Heirs and the two next succeeding turns by the Bishop and his Successors and the next turn to the Lord Jermyn and his Heirs and then the like Succession of two turns for one to the Bishop and his Succession and of one turn to the Lord Jermyn and his Heirs for ever after This is the Act. Now 't is to be considered That this Law doth bind the King and would bind him in point of Interest if he had been Patron of St. Martins in Right of his Crown and if a Right or Interest of the Crown shall be bound by an Act of Parliament a Prerogative shall be in no better plight It cannot be said That he shall not be obliged by it because not named for tho' and where he is not named he is bound by Multitudes of Statutes according to the 5 Rep. 14 and 11 Rep. 68. He is bound by all Acts generally speaking which are to prevent a Decay of Religion and so he is bound by Acts which are for further Relief or to give a more speedy Remedy against Wrong It is no Objection that this Law is in the Affirmative for that it is introductive of a new Law in the very Subject that is created de novo Then before this Act the King had no Right over this and if he hath now any over it he can only have it how when and as the Act gives it not contrary to it then the Bishop was Patron of the Place out of which the Parish is created And the Bishop can claim no other Right than what the Act gives him Bro. tit Remitter 49. 't is so agreed 1 Rep. 48. and in 2 Rep. 46. if Lands be given in Fee to one who was Tenant in Tayle his Issue shall not be remitted because the latter Act takes away the force of the Statute de donis Suppose he had been Enacted to be Patron of a Living to which he had a former Right there could be no Remitter because as to particulars the Act is like a Judgment and estops all Parties to claim any thing otherwise than according to the Act and yet Remitter is a Title favoured in the Law then if he have this only by force of this New Act and another Person should present in his turn so given 't would be an Injury if a Subject did it and consequently the King cannot do it for the Prerogative which this Act gives or which the Common Law gives is not yet come to take place Tho' this be an Affirmative Law yet according to the Rule taken and agreed in Slade's and Drake's Case Hob. 298. being introductive or creative of a new thing implies a Negative of all that is not in the purview and many Cases are there put to this purpose Then also it being particular and express it implies a Negative because this and the other are inconsistent But First 'T is observable all Prescriptions and Customs are fore-closed by a New Act of Parliament unless saved Suppose there was an Act of Parliament in Force before this viz. That the King should present yet another Statute Enacting somewhat new and inconsistent will carry a Negative and if so in Case of a former Act there 's almost as much Reason for a Prerogative It must be agreed That a Man may prescribe or alledge a Custom against an Act of Parliament when his Prescription or Custom is saved or preserved by that or another Act but regularly a Man cannot prescribe or alledge a Custom against any Act of Parliament because 't is matter of Record and the highest and greatest Record which we know of in the Law 1 Inst 115. Suppose Money were by the Law payable annually and an Act comes and says it shall be paid Quarterly by even and equal Portions at the four Feasts for the first Year this will certainly alter the Law 'T is true That a consistent Devife or Statute is no Repeal or Revocation but if a new Act gives a new Estate different from the former this amounts to a Repeal Fox and Harcourt's Case The same Rule holds even in Case of the King as in the Archbishop of Canterbury's Case 2 Rep. 46. and agreed to in Hob. 310. the Query was if the Lands came to the King by 31 H. 8. cap. 13. or by the Stat. of Edw. 6. and objected That the latter was in the Affirmative yet held That it came by the latter because tho' they were Affirmative Words yet they were differently penn'd and the last being of as high an Authority as the first and providing by express Words That by Authority of that Parliament
cum aggravatione pene corporalis somewhat more than Death Then this being a Common Law Punishment and not prescribed by any Statute the knowledge of it must be fetcht from our Law-Books and from Presidents for the General Practise of the Realm is the Common Law 't is describ'd with an ipso vivente in Smith's Republica Anglic. p. 28. lat Edit pag. 245. Stamf. 182. en son view which is tantamount and Stamford wrote 2 Eliz. In Coke's 3 Inst 210. 't is ipsoque vivente comburentur Pulton de Pace Regni 224. and many other Books were cited to the same effect And 't was affirmed that there was no Book which recited the Judgment at large but had this Particular in it Several Books do in short put it That for Treason the Party shall be Drawn and Hanged and Quartered but those are only Hints of the Chief Parts not Recitals of the Judgment it self In the English Book of Judgments printed 1655. pag. 292. 't is mentioned particularly as the Kings Bench have adjudged it should be The Duke of Buckingham's was so 13 Hen. 8. Stow's Chronicle 513. shews that he was the Person Then 't was said they have been thus in every Age without interruption 'till 26 Car. 2. Humfrey Stafford's Case 1 H. 7.24 which was per consensum omnium Justiciariorum tho' quoted on the other side as shortly stated in the Year-Book yet on the Roll which hath been seen and perused 't is with an ipso vivente Plowden 387. and Rastal's Entries 645. the same Case is thus Coke's Ent. 699. is so likewise John Littleton in 43 Eliz. Coke's Ent. 422 423 and 366. is so In the Lord Stafford's Case 33 Car. 2. by the Direction of this House and with the Advice of all the Judges was the Judgment so given by the Earl of Nottingham then Lord High Steward In the Lord Preston's Case 't is so which was drawn by Advice of the then Attorney and Sollicitor the present Keeper and Chief Justice of the Common Pleas. As to the Objection That vivens prosternatur doth imply it and that 's enough It was answered That ipso vivente comburentur implies both but not e contra and all the Presidents shew the latter to be requisite And as to the Case of David Prince of Wales mentioned in Fleta there 's only a Relation of what was the Execution not of what was the Judgment And Coke 2 Inst 195. says That the Judgment was in Parliament and therefore the same can be no President to this purpose and any one that runs over Cotton's Records will find the Judgments in Parliament to be different as the Nature of the Case required No Argument can be drawn from the Acts of the Legislature to govern Judiciary Proceedings however John Hall's Case 1 Hen. 4. Cott. 401. is as now contended for Before the 1 Hen. 7. there were some Erroneous Attainders and the 29 Eliz. takes notice of them as so errneous The Judgments against Benson and Sir Andrew Helsey cited below are plainly erroneous they dispose of the Quarters which they ought not but leave the same to the King's pleasure Sir Andrew's President is a monstrous arbitrary Command by Writ to Commissioners of Oyer and Terminer ordering them to Examine him and to give Judgment in manner as in the Writ is directed that therefore is not to be justified and 't was before 25 Edw. 3. Henry Ropers 21 Rich. 2. doth dispose of the Quarters and hath other Errors in it and so have William Bathurst's and Henry South's which were in 3 Hen. 4. But from that time to 26 Car. 2. there 's none which do omit it The four Presidents at the Old Baily were against Popish Priests and what private politick Reasons or Commands might occasion the omission is unknown and Hampden was not Executed but his Judgment was upon a Confession and his Life saved the reason of which is also unknown So that there have been none Executed upon such Erroneous Judgments And that there are no more Presidents with the Omission is a good Argument that those many which have this Particular in them are good and legal the constant Current having been this way proves the same to be the Common Law And this is the most severe part of the Punishment to have his Bowels cut out while alive and therefore not to be omitted As to the Earl of Essex's Case in Moore and Owen's Case in Roll's Rep. the first is only a Report of the Case and the last a descant upon the Judgment but neither do pretend to recite the whole Judgment Then to pretend that this Judgment cannot be Executed is to arraign the Wisdom and Knowledge of all the Judges and Kings Counsel in all Reigns And Tradition saith that Harrison one of the Regicides did mount himself and give the Executioner a Box on the Ear after his Body was opened c. Then 't was argued That if it be a necessary part of the Judgment and be omitted it is a fatal Error and doth undoubtedly in all Cases give a good reason for the Reversal of such Judgment as in the Common Case of Debt where dampna are omitted in the Judgment tho' for the Advantage of the Defendant as is Beecher's Case and Yelv. 107. Besides if this be legal then all those Attainders in which this Particular is inserted must be illegal for 't is impossible that both the Judgments should be right for either those are more severe than they should be or this is more remiss To say that 't is discretionary is to give the Judges a power which they themselves have disclaimed and to Reverse this Reversal is to tell the Court of Kings Bench that they are not obliged to follow the General Practise of their Predecessors that they are obliged to no form in their Judgment for Treason that nothing but Death and being Drawn to it are essential and according to that Doctrine a Woman might receive the Judgment of Quartering and a Man might be Burnt and both according to Law But the Constitution of this Kingdom hath prescribed and fixed Rules and Forms which the Executive Power is obliged and bound to follow that as nothing can be made or construed to be an Offence at the Pleasure of the Court so no Judgment can be given for any known Offence at Pleasure But the Law either Statute or Common hath established what is an Offence and what is its Punishment and there is nothing of Arbitrary Power allowed in respect of either Wherefore upon the whole it was prayed that the Reversal might be affirmed and it was affirmed accordingly Sir Evan Lloyd Baronet and Dame Mary his Wife and Sidney Godolphin Esq and Susan his Wife Appellants Versus Sir Richard Carew Baronet an Infant the Son and Heir of Sir John Carew Baronet deceased Respondent APpeal from a Decree of Dismission in Chancery The Case was thus Rice Tannott died seized in Fee of several Lands in the several Counties of Salop
be affirmed and it was affirmed Sir Edward Hungerford and John Hill Executors and Devisees of Sir William Basset deceased Plaintiffs versus Edward Nosworthy Defendant WRit of Error to Reverse a Judgment in B. R. upon a Special Verdict in Ejectment by Hitchins the Lessee of Nosworthy against Sir William Basset Defendant for the Mannor of Lanrock and other Lands in Cornwall wherein upon Not Guilty pleaded and a Trial at Bar the Jury find That Sir Henry Killegrew was seized in Fee of the Lands in question and on the 12th of November 1644. made his Will in writing which follows in these words I Henry Killegrew c. and so they set forth the Will whereby Sir Henry Killegrew devised the Premisses to Mrs. Jane Berkley his near Kinswoman for Life with Remainder over to Henry Killegrew alias Hill Sir Henry's Natural Son in Tail and makes Mrs. Berkley sole Executrix They further find that after the making of that Testament and before the time when c. viz. about the Feast of St. Michael in the Year 1645. Condidit fecit aliud Testamentum in scriptis sed quid fuit content ' in eodem ult ' mentionat ' Testamento vel quale fuit purportum sive effectus inde juratoribus praed ' non constat And that Sir Henry on the 29th of September 1646. died seized of the said Lands that Mrs. Jane Barkley Devisee of the said Will in 1644. by Lease and Release conveyed to Mr. Nosworthy's Father and that the Father died in 1684. that Mr. Nosworthy is Son and Heir to him that Sir William Basset is Cosin and Heir to Sir Henry viz. Son and Heir of Elizabeth Basset Daughter and Heir of Sir Joseph Killegrew elder Brother of Sir Henry the Testator that Nosworthy the Lessor of the Plaintiff entred and made the Lease in the Declaration c. But upon the whole Matter whether the Said Testament made in writing 1645. was a Revocation in Law of the said Devise of the said Lands to Mrs. Berkley they are ignorant and pray the Judgment of the Court Et si And upon this Judgment was given for the Plaintiff in the Ejectment And now it was argued That the Judgment was Erroneous that this last Will could not be taken to be a duplicate of the former but must be deemed a Revocation that no Will is good but the last that every Will is revokable till death that the making of another doth import a Revocation of all former ones tho' it be not so expresly declared in writing for it must be the last or nothing that this Conveyance by Will was anciently a Priviledge by the Civil Law for People in Extremis who had not the time or assistance necessary to make a formal Alienation and chiefly intended for Military Men who were always supposed to be under those Circumstances and therefore the Ceremonies and number of Witnesses required of others were dispensed with as to Soldiers but now the Rules for Military Testaments as they are called are allowed in most Cases that as to Lands by our Law was a Priviledge only given to some Boroughs and Places within the Kingdom and particular Custom gave the liberty of disposing Lands or Houses by Will and that by nuncupative Will or Parol without writing so is Bracton lib. 4. fol. 272. Fleta lib. 5. cap. 5. Potest legari catallum tam hereditas quam perquisitum per Barones London Burgenses Oxon 1 Inst 111. that then came the Statute of Hen. 8. and impowers a Devise by a Man's last Will and Testament in writing but still 't is by his last Will. And so is Littleton sect 168. If divers Wills the latter shall stand and the others are void 1 Inst 112. In truth 't is plain Law the first Grant and the last Testament In Swinb 1 part sect 5. p. 14. no Man can die with two Wills but he may with divers Codicils and the latter doth not hinder the former so long as they be not contrary Another difference there is between Wills and Codicils If two Testaments be found and it can't be known which is first or last both are void but the latter countermands the first tho' there be a Clause in the first that it shall not be revoked and tho' an Oath were taken not to revoke because the Law is so that the very making of a latter doth revoke the former So is Liuwood's Provincial ' de Testamentis Justice Dodderidge's Office of Executor published by Wentworth 29. A verbal Will revokes a former written Will Forse and Hembling 4 Rep. 60 61. Plowd 541. Perkins sect 178 179. and sect 478. The 2 Hen. 5.8 is full to this purpose There 's an Action by an Executor against two Executors and they plead a Testament whereby they are made Executors and the Plaintiff replys that he afterwards made another and himself Executor and held that by the second the first became void Now the meaning of these Books cannot be that a Will expresly revoking is the only Will that can make a Revocation nor is it that a Contrariety or Repugnance between the one and the other is necessary to make a Revocation for tho' there be no new Will made yet a Revocation may be by word of Mouth as 2 Cro. 49.115 1 Cro. 51.3 Cro. 781. nay a void Bequest shall revoke a Will so shall a Deed that hath no effect as Feoffment without livery a Devise to J.S. or to a Corporation when there is no such will do it so that 't is not the Contradiction between the disposal which revokes for that which is no disposition at all will do it wherefore the meaning of the Authors cited is somewhat else and it can only be this That there is somewhat particular in a Will to that Instrument of Conveyance more than to any other that even the making of a new Will is a sufficient Revocation the words are plain by the making a new Will the former are all destroyed for there can be but one last And when a Man makes and declares a new Will that new Will must be presumed to contain his whole Mind concerning the disposition of his Estate declaring his Will imports thus much and excludes all other When a Man would alter part of his Will there 's a proper Instrument for it called a Codicil which is known in the Law as well as that of a Will here 's nothing found of a reference to the former to judge it otherwise would confound the use of Wills and Codicils and the difference between them 'T is true that a Man may make partial Wills of several parts of his Estate and all may stand together but then they must be declared to be Wills concerning particular things and they are but several pieces of the same Will tho' written in different Papers but then in pleading one of them you must not generally say he made ult ' voluntatem but ultimam voluntat ' of such a thing but here 't
the Alienation even of an Ideot and then after Office the Practise is to Issue a Scire facias to him in possession or to the Alienee and so is Fitzh tit Scire facias pl. 2. 106. All these Methods prescribed by the Law would be useless if the Acts themselves were void Then 't is as certain that the Office must be found during the Parties Life and during the insanity and not afterwards If there had been an Office 't would only avoid it with a prospect as it would be in case of an Heir after death Even after an Office the King cannot have the Profits from the time of the Alienation which shews it not it not void from the beginning If a Suit be against an Ideot after Inquisition the Ideot cannot plead it but the King shall send a Supersedeas to the Judges suggesting the Inquisition so that even then the Party himself cannot avoid it As to the other way of avoiding it by the Heir it must be by Writ or Entry and till Entry or Writ the Act remains good But here 's no Contest with the Party himself or with his Heirs but with a Remainder Man This Act of Surrender was no tortious Act it wrought no discontinuance there was no Trust in him to preserve the Contingent Remainder A Feoffment with livery is allowed not to be void and yet that may do a wrong by discontinuance c. As to the pretence that a Warrant of Attorney to make livery is void that doth not reach this Case for here 's an Act done by himself which would have passed the Estate as by and from himself if he had been of sound Mind Then 't was desired that the other side would shew any such Case as this whereas multitudes of Gifts Grants Releases Bonds and other Specialties sealed and delivered by the Party himself are allowed to be good and the same reason holds for a Surrender made in Person and there 's no difference between a livery made in Person and a Surrender the Act being Personal and not by another under his Authority makes the livery good and so it ought to be here 18 Ed. 4.2 Perkins sect 139. And 't is observable in 39 Hen. 6.42 per Priscott upon the Inquisition 't is reseized and revested into the Interest of the Ideot and consequently of the King and if revested 't was once out of him Now here 's no prejudice to the Man himself by this Opinion he is taken care of and his Acts avoided by the King on his behalf and his Heirs may avoid them But that Strangers should take notice of them as void was denied and therefore prayed that the Judgment should be reversed On the other side it was argued with the Judgment That this never was a Surrender that 't was against sense and reason to allow the Acts of a Madman a Person distracted to be valid to any purpose that in case of livery it had been allowed to be only voidable by reason of the solemnity and notoriety of the thing but in case of a Deed or a Thing passing only by Deed 't was otherwise and Bracton Britton Fleta and the Register were cited where 't is declared who can take and who can alien and that a Madman cannot alien and Fitzh is of Opinion that the Writ of dum non fuit compos may be brought by himself that there was a notion scattered in the Books that such Acts are only voidable but the reason of the Law is otherwise 39 Hen. 6.42 hath the distinction that Feoffment with livery is good but if livery be by Warrant of Attorney 't is void If it be a Feoffment with Warranty by Deed and possession delivered with his own hands yet the warranty is void because the Deed is void Perk. 5. The Deed of a Mad-man is void if he grants a Rent 't is void If an Infant makes a Warrant of Attorney 't is void so is Whittingham's Case A Deed and a Will are not to be distinguished and by the same reason that the one is void the other is so Finch 102. is general All Deeds of a Man of non sane memorie are null 12 Rep. Shulter's Case 'T is an offence to procure a Deed from him The Civil Law makes all his Acts which he doth without consent of his Curator to be void A Madman is taken pro absente 'T is a Rule unaccountable That a Man shall not stuitifie himself that he shall not be able to excuse himself by the Visitation of Heaven when he may plead Duress from Men to avoid his own Act. 'T is absurd to say That a Deed procured from a Man in a Fever or in Bethlehem shall be valid to any purpose Fitzherbert who was a good Lawyer ridicules the pretence and maintains That he himself may avoid such Act. Then were cited 2 Inst 14. Lloyd and Gregory 1 Cro. 501 502. Perkins tit Grant 13. Then it was said That in this Case there needs not much Argument the Reason of the Thing exposes the pretended Law And the Judges have declared that this Surrender is void the word amens or demens imply that the Man hath no Mind and consequently could make no Conveyance Wherefore 't was prayed that the Judgment should be affirmed and without much debate it was accordingly affirmed Henry Earl of Lincoln by Susanna Countess of Lincoln his Mother and Procheine Amye Appellant Versus Samuel Roll Esq Vere Booth Hugh Fortescue Esq and Bridget his Wife al' Respondents AApeal from a Decree of Dismission in Chancery The Case was thus Edward late Earl of Lincoln who was Son and Heir of Edward Lord Clinton the only Son of Theophilus Earl of Lincoln deceased being seized in Fee of the Mannors of c. after his Mothers decease who is yet living and of other Lands of about 3000 l. per Annum part of the ancient Estate of the Family And designing that in default of Issue-Male by himself his Estate should go with the Honour made his Will 20 Sept. 34 Car. 2. and thereby devised the Premisses to Sir Francis Clinton for Life Remainder to his first and other Sons in Tail-Male with many Remainders over to such Persons in Tail-Male to whom the Honour might descend and directed that his Houshold Goods at ...... should remain there as Heir Loomes to be enjoyed by the next Heir-Male who should be Heir of Lincoln and made the said Sir Francis the Appellants Father and after his Death Earl of Lincoln Executor On the sixth of Novemb. 36 Car. 2. Earl Edward made another Will in writing in like manner with the alteration of some Personal Legacies and afterwards in April 1686. and in Dec. 1690. did republish his Will Then Earl Edward sold part to Richard Wynne Esq for 24491 l. 3 s. 6 d. and mortgaged the Premisses in question to him for 12200 l. Then Earl Edward by Deeds of Lease and Release dated the 27th and 28th of April 1691. conveys his whole Estate to
the rest of the Shares to be enjoyed according to his Will and discharge the Fee-Farm Rent with which they are charged And in case he shall not do so he gives the said Shares he should otherwise enjoy by the Will to and amongst all other his Children and their Heirs equally to be divided amongst them Simon Middlâ—ton died seized the 20 July 1679. and after his death Rebecca having attained her Age of 21 Years died Hezekiah after seisin of his Share died under 21 Years and unmarried Anne one of the Five younger Children which Five claimed the said Hezekiah's Share by Lease and Release settles the fifth part of the Share late her Brother Hezekiah's upon her self and the Plaintiff Bennet Swayne whom she afterwards married and after to the Children that should be between them Remainder to the right Heirs of the Survivor of them two Anne died without Issue and Bennet Swayne after her death received the Profits of that fifth part of Hezekiah's Share to the value of 20 l. That Benjamin Middleton was the only Brother of the whole Blood and Heir of Hezekiah Et si c. Upon the arguing of this special Verdict the Court below was of Opinion That Benjamin was intituled to Anne's Share of Hezekiah's Part as he was Brother and Heir of Hezekiah viz. That by the Will the Fee-simple and Inheritance of a Thirty-sixth Part or Share of the New-River Water was given to and vested in each of the youger Children and that on the Death of Hezekiah one of the younger Children unmarried under One and Twenty Years of Age by the Clause whereby the Shares of the youger Children dying before Twenty One and unmarried are given to the surviving Children Share and Share alike the five Survivors became Tenants in Common and each was seized of a fifth part only for Life and not in Fee That the Reversion of Hezekiah's Share expectant on the deaths of the younger Children descended to the said Benjamin his Brother and Heir and that he on the death of Anne ought to have enjoyed that Fifth-part in Possession and therefore the Profits of it received by Swayne were due to Benjamin and Judgment accordingly given there for Benjamin And now it was argued That this Judgment was erroneous for that by Virtue of the said Devise the said Anne had an Inheritance in her part of Hezekiah's Share for these Reasons 1. It is well known and agreed That a Part or Share in the New-River is an Inheritance and therefore the Devise of all that Part or Share to any Person is a Devise of that Part and Share to such Person and his Heirs and is as much as if a Person being seized in Fee of Lands should say in his Will he devises all his Estate in those Lands to J. S. it could be no question but such a Devise would convey the said Lands to such Devisee and his Heirs 2. The Share of Hezekiah was given to him and his Heirs proportionably charged with the payment of the Fee-Farm Rent to his Majesty and with 100 l. per Annum to Henry M. and his Heirs and also with 150 l. to his Brother Benjamin and being thus charged upon his dying before Age or Marriage his Share with the Profits thereof thus charged is given to his younger Brother and Sisters the Survivor and Survivors of them Share and Share alike Then 't is observable that the Fee-Farm Rent payable to the King his Heirs and Successors is 500 l. per Annum upon which account 't would be very difficult to conceive that the Testator by this Devise of the deceased's Part to the Survivors Share and Share alike did intend to such Survivors only an Estate for Life when at the same time he subjects and charges it to and with the proportionable payment of the said yearly Fee-Farm and the 100 l. to H. M. and his Heirs which are Rent-Charges in Fee and cannot reasonably be understood to be charged on Estates given barely for Life Besides The Point here is upon the Construction of a Will and the Testators true Intent and Meaning in any part that is obscure ought to be collected out of any other part or words of the Will that may explain it Now it being plain that Hezekiah's Part was a Fee-simple and thus charged it seems to be as plain that the very Inheritance of that Part should upon his death go and remain to the Survivors Share and Share alike that is to say That they should be Tenants in Common in Fee-simple of that Part the same being thus chargable with the two Rents and with the 150 l. to Benjamin for otherwise this Devise over which was designed in their favour and for their benefit might have turned to some of their Losses and Prejudice for they might have paid the 150 l. to Benjamin and have died before they were re-imbursed out of Hezekiah's Share had the same been only an Estate for Life and it cannot easily be supposed that he intended his youngest Children by the second Wife should have a better Estate in his Shares of the New-River Water devised as aforesaid then the younger Children by the first Wife had but that their Shares in it should be equal but by this Construction Benjamin by the second Venter must carry away Anne's Share from her Sisters and Brother of the first Venter here 's no need of the common Care in construing Wills not to disinherit an Heir by general words for Hugh is disinherited by this Will whether this surviving Interest be a Fee or for Life The Intention here was to make an equal Provision for all the younger Children the Part and Share of the Person dying is the Inheritance in the Part and Share of the Person dying in the New-River Water The three Sisters were to have their Shares discharged of the Fee-Farm Bent but if this be only an Estate for Life then those who were designed to have the least benefit by the Will are to have the greatest for they are Heirs to Hezekiah whereas the Children by the first Venter seem to be most favoured by the Will because they are to have their Bequests free from those Incumbrances The Testator recites his own Scisin in Fee of so many Parts and Shares and then devises those Parts in Fee how can this Clause of Limitation to Survivors be construed to mean otherwise then that the whole Fee of that proportion should survive The Cases cited in Rolls on the other side are only Devises of the Land and not of his Share Then 't was said That here was no Tenancy in Common that 't is true equally divided and equally to be divided make a Tenancy in Common but 't is upon the account of the word divided that to two equally will not be so construed 1 Aâ—d 29. and if the words equally will not why should Share and Share alike these words do not shew any partition of the Estate in Fact nor in the Intention of the Testator