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
Denbigh and Montgomery leaving three Daughters and Coheirs Mary Penelope and Susan Susan married Sidney Godolphin one of the present Appellants In July 1674. Mary and Penelope in consideration of 4000 l. paid to the said Mary by Richard Carew Esq and in consideration of a Marriage to be had and which was afterwards had between Penelope and the said Richard Carew by Lease and Release convey all those their two Parts of the said Lands in Denbigh Salop and Montgomery to Trustees and their Heirs to the use of Richard Carew for Life then to Penelope for Life for her Jointure then to the said Trustees and their Heirs during the Lives of Richard and Penelope to preserve contingent Remainders then to the first and other Sons of Richard and Penelope in Tail-Male successively And in default of Issue-Male to the Daughters of Richard and Penelope in Tail And in default of such Issue as to one Moiety of the said two Parts to the first and other Sons of the said Penelope by any other Husband in Tail the Remainder of all and singular the Premisses to the said Richard Carew and his Heirs for ever subject to this Proviso That if it should happen that no Issue of the said Richard upon the Body of the said Penelope should be living at the decease of the Survivor of them and the Heirs of the said Penelope should within Twelve Months after the decease of the Survivor of the said Richard and Penelope dying without Issue as aforesaid pay to the Heirs or Assigns of the said Richard Carew the Sum of 4000 l. that then the Remainder in Fee-simple so limited to the said Richard Carew and his Heirs should cease and that then and from thenceforth the Premisses should remain to the use of the right Heirs of the said Penelope for ever After this Mary intermarried with the Appellant Sir Evan Lloyd and a Partition was made of the Premisses and the same had been enjoyed accordingly ever since and Mr. Carew and his Lady levied a Fine to Mr. Godolphin and his Lady of his part who did thereupon by their Deed dated 23 Sept. 1676. covenant to levy a Fine of Mr. Carew's two Parts to such uses as he and his Lady should limit and appoint but have not yet levied the said Fine Richard Carew and Penelope his Wife to avoid all Controversies that might happen whereby the Estate of the said Richard Carew or his Heirs might be question'd or incumbred by the Heirs of Penelope and to the End to extinguish and destroy and barr all such Estate Right Title Equitable or other Interest as the said Penelope then had or her Issue and Heirs might have or claim to the same by any Power Settlement or Condition on payment of 4000 l. or otherwise to the Heirs of Richard Carew by the Heirs of the said Penelope and for the settling of the same on the said Richard Carew and his Heirs did in Michaelmas Term 1681. levy a Fine of the Share and Part allotted to them and by Deed of 10 Decemb. 1681. declare that the said Fine should be to the use of the said Richard for Life Remainder to Penelope for Life the Remainder to the said Richard Carew his Heirs and Assigns for ever And do further declare That the Fine agreed to be levied by the Appellants Sidney Godolphin and Susan his Wife by their Deed dated the 23 Sept. 1676. should be to the same uses and then direct the Trustees by the first Settlement to convey to those uses Penelope died without Issue in 1690. Richard Carew made his Will in Aug. 1691. and devised the said Lands to Sir John Carew Baronet his Brother subject to pay all his Debts and Legacies and made Sir John Carew his Executor In Decemb. 1691. Richard Carew died without Issue and Sir John Carew entred and was seized and possessed of the Premisses and paid 4855 l. for the Debts of Richard Carew Sir John Carew died and the Respondent Sir Richard Carew an Infant is his Son Heir and Executor The Appellants Mary and Susan claiming the Lands as Heirs to Penelope by virtue of the said Proviso in the first Settlement upon payment of the 4000 l. exhibited their Bill in Chancery to compel the Trustees to convey the Estate to them upon such payment Upon hearing of this Cause on Bill and Answer the Court ordered a State of the Case to be drawn which was as above and afterwards the Court assisted by the Chief Justice of the Common Pleas and Mr. Justice Rooksby seeing no Cause to relieve the Plaintiffs dismissed their Bill And now it was argued on behalf of the Appellants That such Dismission ought to be set aside and amongst other things it was insisted on in favour of the Appeal that this Proviso was not void that it was within the reason of the Contingent Limitations allowed by the late Lord Chancellor Nottingham in the Case of the Duke of Norfolk and there were quoted several Paragraphs in the Argument made by the said Lord Chancellor as that future Interests springing Trusts or Trusts Executory Remainders that are to emerge or arise upon Contingency are quite out of the Rules and Reasons of Perpetuities nay out of the Reason upon which the Policy of the Law is founded in those Cases especially if they be not of remote or long Consideration but such as by a natural and easie Interpretation will speedily wear out and so things come to the right Channel again That tho' there can be no Remainders limited after a Fee-simple yet there may be a Contingent Fee-simple arise out of the first Fee that the ultimum quod sit or the utmost Limitation of a Fee upon a Fee is not yet plainly determined that tho' it be impossible to limit a Remainder of a Fee upon a Fee yet 't is not impossible to limit a Contingent Fee upon a Fee that no Conveyance is ever to be set aside in Chancery where it can be supported by a reasonable Construction especially where 't is a Family Settlement Then these Paragraphs were applied and further urged That there could not in reason be any difference between a Contingency to happen during Life or Lives or within one year afterwards that the true reason of such Opinions which allowed them if happening within the time of the Parties lives or upon their deceases was because no Inconvenience could be apprehended thereby and the same Reason will hold to one year afterwards and the true Rule is to fix Limits and Boundaries to such Limitations when so made as that they prove Inconvenient and not otherwise That this Limitation upon this Contingency happening was the considerate Intention of the Family the Circumstances whereof required Consideration and this Settlement was the Result of it and made by good Advice That the Fine could not barr the Benefit of this Proviso for that the same never was nor ever could be in Penelope who levied the Fine As to the Pretence That if the
is aliud testamentum i.e. a general Testament The 2 Rich. 3. fol. 3. is directly thus The Defendant pleads one Will the Plaintiff replies another and exception taken because he did not traverse the former but held needless to do so quia per ult ' testamentum ut placitatur generaliter primum testamentum revocatur in omnibus and it cannot be pretended that this might be the same Will written over again for if so it could not be aliud it would be the same these are not quibbles upon words for can it be said that this is a Devise by the last Will of Sir H. when there 's another Nor is it an Objection that the Contents do not appear for the Will belongs not to the Heir to keep and consequently not to shew in pleading he is not bound to a profert 't is enough that there was a subsequent Will And as the latter may confirm or be consistent with the former so it may not be so and the consistency is not to be presumed especially against an Heir at Law and in possession In the Case of Coward and Marshal 3 Cro. 721. the Substance of both are declared and thereby they appeared to be consistent and consequently no Revocation here Eadem mens sic testandi the same intent of disposing his Estate the same way can never be thought to continue for then there had been no occasion of making another Will If this be not a Revocation 't is an act void and to no purpose which is never to be intended Then 't was insisted on That the bare act of making and publishing another Will is a Revocation and the finding of the Contents unknown is void If this be not a Will 't is a Codicil and that is contrary to the finding of the Jury for the Verdict mentions a second Substantive independent Will without reference to the former which second Will is a Revocation and therefore 't was prayed that the Judgment should be reversed It was argued on the other side in behalf of Mr. Nosworthy That this was no Revocation that here had been a great stir about nothing for that nothing appeared against his Title that a Man may make a Will of several things at several times and they both shall stand that a deliberate Will being made the Contents whereof are known shall never be revoked by that which is not known nothing can be judged upon that which doth not appear and consequently it can never be judged to be a Revocation Here 's another Will and nothing is given by it nothing is found to be given by this subsequent Will The form of entring the ancient Judgments was Quibus visis lectis auditis per Curiam plene intellectis now what is here read to make a Revocation 2 Rich. 3. fol. 3. is with the Judgment for there 't is replied that he made another Executor there are the Contents pleaded sufficient to maintain his Count and answer the Defendant's Bar the Book is per hoc quod alius Executor nominatur Then was cited 1 Cro. 51. the Reason given is quia in dubiis non presumitur pro testamento and here being a good Will at the most the other is doubtful 1 Cro. 114 115. Several Wills of several things may be made And the same Book 595. 10 Car. 1. which Refolution Serjeant Maynard in arguing this Case below said that he heard in that Court of Kings Bench 'T is the Subject Matter of the Wills and the Repugnancy which makes the Revocation In this very Case in the Exchequer upon an English Bill 't was held by Hale to be no Revocation 't is in Hardres 375. Coke upon Littleton which hath been quoted Comments upon these words several Devises and if there be no Devise in the second there can be no sense or meaning in it and consequently unless some meaning appear it can never be an Evidence of a change of his Mind as it might be a Revocation so it might be otherwise and he that will have it to be a Revocation must prove it to be such No Man can affirm that every Will must necessarily be a Revocation of a former for the second Will might be of another thing as Goods or of another parcel of Land or in confirmation of the former If in these and many other like Cases a latter Will is no Revocation of a former how can it possibly with justice be concluded that a latter Will without Contents Purport or Effect shall be a Revocation of a former And tho' the Jury have in this Case believed the Witnesses and found that another Will was made it may be of dangerous Consequence to encourage and construe this a Revocation without knowing the Contents for no Will can be secure against the swearing of a new Will if there be no necessity of shewing it or proving what it was For which and other Reasons it was prayed that the Judgment might be affirmed and it was affirmed Sir Simon Leach al' Plaintiffs Versus J. Thomson Lessee of Charles Leach Defendant WRit of Error to Reverse a Judgment given in B. R. upon a Special Verdict on a Trial at Bar in Ejectment brought by Thomson on the Demise of Charles Leach the Special Verdict finds that Nicholas Leach was seized of the Lands in question in his Demesne as of Fee and being so seized 9 Nov. 19 Car. 2. he makes his last Will and thereby devises the Premisses to the Heirs Males of his Body lawfully to be begotten and for default of such Issue to Simon Leach his Brother for his Life and after his Decease to the first Son of the Body of the said Simon lawfully to be begotten and the Heirs Males of the Body of such first Son lawfully to be begotten and for default of such Issue to the second c. and so on to the eighth Sons of all and every other Sons c. and for default of such Issue to Sir Simon Leach his Kinsman Son and Heir of Simon Leach of Cadley in Com' Devon ' Esq deceased and the Heirs Males of his Body and for default of such Issue to the right Heirs of him the said Nicholas for ever Then they find That the Lands in the Declaration and those in the Will are the same that afterwards viz. 10 Apr. 20 Car. 2. Nicholas died seized without Issue of his Body that after his Death the said Simon his Brother and Heir Entred and was seized in his Demesne ut de libero tenemento for term of his Life Remainder to the first Son of the Body of the said Simon the Brother and the Heirs of the Body of such first Son lawfully to be begotten and for default of such to the second c. Remainder to Sir Simon in Tail Remainder to the said Simon the Brother and his Heirs belonging That Simon Leach the Brother being so seized afterwards viz. 20 Aug. 20 Car. 2. took to Wife Anne the Daughter of Vnton Crook that
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
Feodary and Officiary as Earl Marshal of England which have a Relation to an Office or Land for such are Transferrable over and such Dignities as are only Personal Inherent in the Blood and only favour quasi of the Reality of which no Fine can be levied as 't is of an Annuity to a Man and his Heirs no Fine can be levied 2. A Dignity was neither subject to a Condition at the Common Law nor intailable by the Statute de Donis c. nor barrable by the Statute of Fines Indeed in Nevil's Case something which favours of the contrary Opinion is said but the Question there was Whether 't was forfeitable by Treason And therefore the present Question is very forreign to the Matter there debated A Dignity differs from other Inheritances being an Honour Personal affixed to the Blood cannot be forfeited by a Non-performance of a Condition except that Tacite Condition in Law and consequently cannot be intailed and tho' the Title of a Viscount be of a Place yet it is only Titular for it is often taken from the Sirnames of Families 3. The Title of Viscount c. is not so much a private Interest as a publick Right for Peers are born Counsellors of State and one part of a Senatory Body and therefore cannot be renounced without the Consent of all those who have interest in it they cannot without the Consent of the whole Body whereof they are so considerable Members cut themselves off from the Body and so the Objection of quilibet potest Juri suo renuntiare is easily answered 'T was further argued on the same side That 1. An Honour goes not according to the Rules of the Common Law nor is it governable by them it is not therefore pertinent to argue from those Rules which hold in Cases of other Inheritances for a Dignity descends to the Half-blood there is no Coparcinership of it but the Eldest takes the whole a Fee-simple will go to a Noble-man without the word Heirs 1 Inst 27. It differs from Estates in Land in the Intrinsick Matter as well as the Manner of the Limitation because it is given for two Reasons for Counsel and Defence and it is a Civil Interest appointed by the Civil Constitution of the Realm which goes with the Blood and is inherent in the Blood insomuch that it is agreed on all hands that it can't be transferred to a Stranger and till Nevil's Case 't was doubted whether forfeitable for Treason if a Lord die his Son shall be introduc'd without the Ceremony usual at the first Creation a Peer's eldest Son and all Minors sit behind the Chair of State to prepare them for the Sitting in the House as Members and because they have some Title to the Honour they are called Nobiles Nati for the first time they fetch breath they have Nobility in them So that he that Surrenders by Fine must not only extinguish his Estate in the Honour but also the Nobility of his Blood 2. Every Lord is not only a Lord for himself but also hath a Right of Peerage and is a Peer of the Realm and therefore a Peer for every one of the House and therefore hath the Priviledge to demand his Writ Ex debito Justitiae and is to be tried by his Peers in Capital Crimes and that appears farther from a Matter which happened in this House 16 Car. 2. There was an Order mentioning the Bishops to be Lords of Parliament not Peers at which the Lords wondering ordered a Committee to examine the reason of it which proves that Lord is not so high nor inclusive as Peers So that if the Fine have any Operation it takes away not only his Right but also the Right of the House of Lords 3. The trial of Baron or no Baron upon Issue in any Court of Judicature is by the Records of Parliament but if a Fine may be levied in the Common Pleas the Trial is drawn ad aliud Examen and must then be by the Records of that Court The Clerk of the Parliament always certifies if he be a Baron because he hath the Record before him but he cannot certifie he is no Baron because he hath not the Record thereof before him 4. No Fine can be levied of a thing Personal as an Annuity to a Man and his Heirs but a Dignity is a thing Personal and so he took notice of the difference betwixt the Honours of Peerage which are Personal and the Honours that are Feodary and Officiary which have reference to an Office or Land 5. He did argue ab inconvenienti that this Opinion can be no Inconveniency to the Crown but the contrary makes Nobility a meer Pageantry by putting it into the Hands of a weak and angry Father to dispossess an hopeful Son of that which is his Birth-right The Titles of Esquire and Gentleman are drowned in the greater Dignity of that of a Peer and when the greater are gone the other must go with it And then from being a Nobleman to day he and the rest of his Family must be below all Nobility and be called Yeomen or Goodman Villers to morrow which may bring great Confusion to a Noble Family and all its Relatives and surely this House will not put such a publick Disrespect on such a Family by agreeing to so unjust an act of one Man And that which was most relied upon was a Resolution of this House in Stafford's Case Anno 1640. which no Man without Indecency can question it passed not sub silentio or obiter but upon debate neither could it be any way invalid upon account of the Times for it was in the Infancy of that Parliament and that wherein a Peer's Case who sits now in this House was judicially before them and therefore there is no reason to shake that Judgment more than any other Judgment of that time My Lord Cooke in his 4 Inst Chapt. of Ireland is of Opinion that Honours cannot be extinguished but by Act of Parliament Then as to the Precedents that have been urg'd on the other side there are none directly to the Point for as to Nevil's Case there are very few Cases cited there aright and are not to be look'd upon as Law The Case of my Lord of Northumberland in 3 4 Phil. Mar. was by way of Creation and so was the Case of Dudley And Dugdale in his Baronage of England pag. 270. gives an account of it and the rest of the Precedents are above Two hundred years old which passed sub silentio and are not to be vouched unless they were disputed The first is Bigod's who in the time of Edw. 1. surrendred the Honour of Earl-Marshal of England to the King who granted it to him in Tail This Honour is Officiary and therefore nothing to the purpose and the Surrender was made thro' fear Walsingham 95. The next is the Earl of Pembroke's Case who in 8 Edw. 4. was made Earl in Tail and by this he had the
the Name of his Kinsman Thomas Arnold the Sum of 40 s. all to be paid out of his Personal Estate and then proceeds in these words Being determined to settle for the future after the death of me and my Wife the Mannor of Furthoe with all the Lands Woods and Appurtetenances to charitable Vses I devise my Mannor of Furthoe with the Appurtenances unto Sir Lionel Jenkins Kt. William Dyer Matthew Johnson and Thomas Bedford and to their Heirs and Assigns for ever upon trust that they or their Assigns after the death of him and his Wife should pay and deliver yearly for ever several particular Sums to Charitable Vses therein mentioned All the Particulars amounting in the whole to 120 l. per Annum and charged nothing further on the said Mannor but the Expences of the Trustees in the Execution of the said Trust The said Arnold soon affter died the Wife is also since dead Sir Lionel Jenkyns and William Dyer also dead In Trinity 1692. the Attorney General prefers a Bill against the Appellant as Heir at Law to settle and establish the said Charities and to enforce the Trustees to act or to transfer their trust Estate To which they answer and the Heir by his Answer claimed as Heir at Law the Surplus of the Charity Estate over and above what would satisfie the yearly Payments expressed in the Will and the Charges of executing the said Trust upon a Reference to a Master to ascertain the Court of the yearly value of the Mannor he reports it worth 240 l. per Annum and worth the same at the time of making the Will And on hearing the Cause the Court declared That all the Profits of the Premisses ought by the purport and intention of the Will to be applied to the Charities therein mentioned and that the Appellant Arnold the Heir at Law is totally excluded from the Surplus with direction how the Surplus should go in augmentation of some of the Charities nevertheless in case the Appellant should Seal and Execute to the Trustees a Release and Conveyance of the Premisses according to the Decree then he to have his Costs out of the Sale of Timber and that the Trustees be indempnified And it was argued on behalf of the Appellant That this Decree was not equitable Some Questions were made about the distribution of the Surplus amongst only some of the Charities and about the value but a Surplus was agreed to be in the Case and 't was chiefly insisted upon that the Surplus ought to go and be to and for the use of the Heir at Law for that the Estate is not increased by any subsequent or accidental Improvement and so not like the Case of Thetford School but here at the time of making the said Will was and now is of a good value beyond the Sums given and was so known to be by the Testator and the particular Charities given by the Testator are particularly and expresly named and limited and do amount only to so much as is less than the value of the Land and thS urplus is not disposed of and consequently ought to be the Heirs For as at the Common Law in a Will what is not given away must descend whether you speak of Land or the interest in it so in Equity whatsoever Trust or part of a Trust is not declared and expressed the same shall be for the benefit of the Representative of the Testator either Heir or Executor as the Case may happen Then these Bequests or Devises being particular and express they do and will controul and expound nay restrain and qualifie the meaning of general precedent words That Expression of his being determined to settle his Mannor to charitable Uses will be qualified by the Particulars afterwards as is Nokes's Case in 4 Rep. and many others in the Books Besides 't is not accompanied with any term of Universality that excludes the Construction contended for and if it had been so largely expressed those general words of his designing to settle the whole may be intended only as a Security that the particular Charities may be certainly answered And by such Construction all the words of the Will may be satisfied and then the Trustees may convey the Premisses to the Heir at Law and take Security for the same saving and reserving all the said Charities devised with all reasonable Charges and Deductions without prejudice to the Will of the Testator or to the said Estate which must nevertheless be liable to answer and make good the same so that there can be no Damage done to any of the Parties or Interests concerned by this Construction nay it is the adding a further Security for their payment Now it is plain he designed the Sums given to the particular Uses and no more for that they are all so particular and express and it is pursuant to the Rules of Law and Equity in all doubtful Cases to adjudge in favour of the Heir at Law and not to extend the general words of a Will to enlarge a Charity beyond the intent expressed especially against a near Relation and Heir as this is viz. his Brother's Son Besides the Testator was bred a Civilian and as such knew how fully to express himself if he had intended the Overplus to go in increase of the Charity Or if he had intended them more then is mentioned he would have declared himself in such manner as should exclude all doubt On the other side it was argued That the Testator's intent plainly appeared by his Will to dispose all his Estate wholly to charitable Uses and that the words of the Will were sufficient to carry the whole Estate to that purpose and that it did not appear by his Will that 't was his intent to give his Heir at Law any thing out of his Real Estate that his determination to settle his Mannor with the Appurtenances was to settle the whole that what is not disposed of in Particulars is to be directed by the Court of Chancery that that Court hath done right in directing it in augmentation of the Charities mentioned because the Testator's intent was most in favour of those which are so mentioned That if the Query were askt What shall be done with the Surplus if any The Answer is natural viz. I am determined to settle the Mannor that is the whole on Charitable Uses That the Testator by his Will expressed some Care for his Sister and for John Boncher his Nephew and other his near Relations but neither by any Expression or Implication pointeth at any provision designed for his Heir at Law but for the Excluding him of all Pretences hath bequeathed him 40 s. and no more that the other is to contradict his plain Intent 't is to make a new Will for him contrary to the determination which he saith he had made And accordingly the Decree was affirmed Sir Richard Dutton Plaintiff Versus Richard Howell Richard Grey and Robert Chaplain Executors of Sir John
that this was never designed to take effect as an use to be vested immediately and it was no more then if the Deed had declared the use to be after the expiration of twenty Years or at other future time to the Heirs of the Body of William Horne and for default of such Issue to his right Heirs and that such time had happened the use would have vested in the Heirs of his Body or in his right Heirs if he had Died before that time That 't is true there must be a person capable of taking at the time when the Contingency happens and so there was here at the time of his Death That it could never be intended that the Heirs should take immediately for that then there was no such person in being there could be no Heirs during his Life That this was like the Case of Webb and Sir Caesar Cranmer where the Trust of the Estate during the Life of the Duke of Southampton was adjudged to remain in the Heirs of the Devisor the Duke himself not being capable to take it That here being no person able to take under this Deed and Fine during the Husband's Life it shall be construed to remain as it was before till that Life ends and then the use ought to take effect for otherwise both the Deed and Fine are to no purpose they are all in vain and the intent of the parties to it is defeated And there were Cited the Lord Paget's Case in 1 Anderson and Woodlett and Denny 2 Crook 439. and 1 Leon 256. On the other side it was argued with the Judgment that this Deed and Fine can raise no use to the Heirs of the Husband according to the Rules of Law It was insisted That if Husband and Wise do levy a fine of the Wife's Land and no uses are declared or such uses are declared as are void and can never take effect such Fine is to the use of the Wife and her Heirs that in such case the Estate remins ' as it was or if the Fine Operates any thing it shall be for the benefit of the party to whom it did belong before Then it was urged That this was designed to raise an use immediately to the Heirs of the c. and that there was no person capable of taking at the time of levying this Fine the common Maxim in the Law proving it quod nemo est heres Viventis that the name and nature of an Heir import a successor after Death that this being designed to raise an use ex presenti and no person being capable of taking at that time the same must be void That this is the case of a Deed executed in the Life-time of the parties and not a Will where large allowances are often made in favour of supposed intentions by reason that persons are often surprized by Sickness and presumed to want the assistance of Counsel but the Rules of Law are always allowed to govern in Construction of Deeds Then it was urged that nothing was ever designed to the Husband himself by this that no words in the Deed can favour such a presumption that this must either work as an Estate in present or by way of remainder if the latter then by the known Rules of Law there must be a particular Estate to support it and such particular Estate must be either expressed or implied here is none expressed and if implied it must be in the Wife and if in her then she dying before the Husband her particular Estate did determine before the remainder could take place and consequently by all the Rules of Law it can never take place and no particular Estate can be implied in or for the Husband for that there is nothing said shewing such intent and if the Construction of Law be to prevail then as was urged before that is in favour of the Wife But here it was plainly designed to take effect immediately and therefore void because there was no person in being capable of taking at the time the Estate was intended to vest and no uses are to be executed by the State which are limitted against the Rules of the Common-Law Chudleigh's Case 1 Rep. 129. if the limitation of an use be at this day to A. for Years and afterwards to the use of the Heirs or Wife of B. which shall be this is void because 't would have been void if limitted in possession Dyer 190. the Earl of Bedford's Case in Popham 3 4. and 82. resolved in like manner to be void because would have been so in an Estate conveyed at Common-Law And all that can be objected is that then this is all void which is no more than may be pretended upon every imperfect conveyance but here the Case is in a Court of Law and the Defendant is a Purchaser who hath been Thirty Years in Possession tho' that doth not appear in the Case And it was said That as to the Notion of a springing contingent use 't is hardly intelligible in it self and by no means applicable to this Case because here are no words in this Deed that carry any relation to a future time or Contingency and the Objection is only this That the Conveyancer was mistaken in his Judgment or that the parties knew not what they meant or that they meant to create such an Estate and in such a manner as the Law will not allow and neither of these are Reasons sufficient to prevail for the Reversing of a Judgment given according to the Rules of Law by which Men's Inheritances have all along been governed and upon which many Estates do now depend 'T was further urged That the contrary Opinion which must be advanced to annul this Judgment would reder the Law and Men's Conveyances as doubtful and uncertain as last Wills and Testaments and submit Men's Titles to the Arbitrary Power and Will of those that shall Judge of them It is to impower them to suppose intentions where not expressed and to raise uses by Implication where they were never designed And in short 't will destroy all the difference between good and bad Conveyances and enable Men to limit uses and raise Estates contrary to and in different manner from what the Law hath hitherto allowed it will render Purchases more uncertain than they are at present and that 's more than enough already and the consequence must be to produce a confusion in property c. wherefore upon the whole it was prayed That the Judgment might be affirmed and it was affirmed accordingly Watts al' versus Crooke APpeal from a Decree in Chancery The Case in short was this That Peter Crooke and Elizabeth his Wife who was Sister of the half Blood to George Watts claimed to have an equal share with John Watts and Elizabeth Camfield who were Brother and Sister of the whole Blood to the Deceased of his Personal Estate and a Decree was made in Chancery in favour of Crooke and his Wife It was argued on
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
Appellants were relieved Richard Carew who married Penelope would have no Portion with her 'T was answered That that could not alter the Case the Agreement and Intention of the Parties being the most considerable Matter and besides Richard enjoyed the Estate during his Life without impeachment of Waste And as to the Debts 't was answered That those were no Ingredients in the Question however there would be 4000 l. paid towards it and the Personal Estate was more than enough to pay the residue For which and other Reasons 't was prayed that the Dismission might be Reversed On the other side it was insisted on with the Decree 1. That the Limitation by the Settlement in July 1674. to the Heirs of Penelope upon payment of 4000 l. by them to the Heirs of Richard Carew within Twelve Months after the death of Richard and Penelope without Issue at the time of the decease of the Survivor of them is a void Limitation the Fee-simple being before limited to Richard and his Heirs and so not capable of a further Limitation unless upon a Contingency to happen in the Life of one or more Persons in being at the time of the Settlement which is the furthest that the Judges have ever yet gone in allowing these Contingent Limitations upon a Fee and which were the Bounds set to these Limitations by the late Lord Chancellor Nottingham in the Case of the Duke of Norfolk that tho' there were such Expressions as had been read on the other side yet the Bounds set by him to these Limitations were only dependent upon Life or Lives in being and never as yet went any further And if they should be Extended and allowed to be good upon Contingencies to happen within Twelve Months after the Death of one or more Persons they may be as well allowed upon Contingencies to happen within a Thousand years by which all the Mischiefs that are the necessary Consequents of Perpetuities which have been so industriously avoided in all Ages will be let in and the Owner of a Fee-simple thus clogged would be no more capable of providing for the Necessities and Accidents of his Family then a bare Tenant for Life 2. If this Limitation were good 't was urged That the Estate limited to the Heirs of Penelope was virtually in her and her Heirs must claim by Descent from her and not as Purchasors and by Consequence this Estate is effectually barred by the Fine of Penelope the design of limiting this Power to the Heirs not being to exclude the Ancestor but because the Power could not in its nature be executed until after the decease of the Ancestor it being to take effect upon a Contingency that could not happen till after that time and this Bill and Appeal was not only to have the said Richard Carew who married Penelope to have not one Farthing Portion with his Wife but to make the now Respondent Sir Richard Carew to lose the 4855 l. which his Father Sir John Carew paid as charged on the Lands in question For which Reasons and many others well urged about the Mischief and Danger of Perpetuities and their Increase of late years to the intangling and ruine of many Families it was prayed that the Decree of Dismission might be affirmed but the same was Reversed Sir William Morley Knight of the Bath Plaintiff Versus Peter Jones Defendant WRit of Error to Reverse a Judgment in B.R. in Ejectment upon the Demise of Bellingham upon a Special Verdict which finds That Anne Bowyer Spinster was seized in Fee of the Mannor of Frencham that the said Anne and Edward Morley Esq and Sir William and J. Wells ante tempus quo c. viz. 22 July 1664. did make and as their Deed deliver a certain Indenture with their Seals sealed whereby the said Anne demises the Mannor aforesaid to Sir William and Wells and their Executors for one Month from the Day next before the Day of the Date that Sir W. and Wells entred and were possessed that they the 23d of July in the said Year sealed and as their Deed delivered another Indenture with their Seals sealed whereby the said Anne reciting a Marriage intended between Anne and Edward and that Edward had agreed to settle a Jointure out of his Lands to the value of 300 l. per Annum and that the said Anne had agreed in case the Marriage took effect and a Jointure were made as aforesaid to settle the said Mannor on him and his Heirs and to particular Trusts after-mentioned until the same be performed She the said Anne in consideration of the Marriage and in performance of the Agreement on her part Bargains Releases and Confirms to Sir W. and Wells their Heirs the said Mannor and all her Right c. and the Reversion c. in Trust for the said Anne and her Heirs until the Marriage take effect and assurance of a Jointure be made as aforesaid and after such Marriage and Assurance of such value as aforesaid then to the use of Edward and his Heirs c. Then the 1st of August 1664. a Marriage was had then the 29th of Jan. 1665. a Deed is Executed between the said Edward and Anne of the first part and Young and Truster as Trustees on the other part reciting that a Fine is already acknowledged and agreed to be levied in due Form of Law next Hillary Term between the said Young and Truster Plaintiffs and the said Edward and Anne his Wife of the said Mannor of Frencham and thereby declared that the said Fine should be to the use of Edward and his Heirs Two days after the Execution of that Deed and before the Fine levied viz. 31 Jan. 1665. another Writing indented was made and executed under Seal between the said Edward of the one part and the said Anne of the other part whereby they both in Consideration of the said Marriage and other good Causes did Covenant Consent and Agree to revoke all former Grants Bargains Contracts Writings Covenants and Obligations made or done between them or any other for them until the said Edward had performed the Agreements in the said Marriage Settlement on his part both in Law and Equity and that in default thereof it might be lawful for the said Anne and her Heirs to enter into the said Mannor and Land conveyed by the said Settlement without the lett of the said Edward and his Heirs Afterwards the Fine was levied Octabis Purificationis which was the 9th of February in that Term And afterwards by Indenture between the said Edward Morley of the one part and one Henry Doble of the other part dated 9 July 1666. the said Edward in consideration of 600 l. Mortgages the said Mannor to Doble and his Heirs Then the Money not being paid by Edward Morley to Doble Doble did 2 June 1676. in consideration of 600 l. with Interest paid by Sir William Morley conveys the said Mannor to one Thomas Young that Edward Morley did never convey the Lands agreed
specially That if Parol Evidence or a naked Averment should be admitted then they find to such Uses But here 't is like finding the Badges of Fraud without finding the Fraud it self or a Demand and Denial without finding a Conversion upon neither of which can the Court judge the Thing to be a Fraud or a Conversion And for these and other like Reasons it was prayed that the Judgment might be reversed It was argued on the other side with the Judgment That this Fine thus levied was not to the use of the Husband but of the Wife and her Heirs that the Fine is not to the Uses in the Deed of the 29th but controuled by that of the 31st 'T was agreed that if there be a Deed to levy a Fine and in pursuance thereof a Fine is levied to the Person of the Lands and at the time no Proof shall be allowed that the Fine was to any other Use but if it be in case of a subsequent Deed then Averment may be against it but by the making of a precedent Deed all Parties are estopped to contradict it unless there be another Deed of equal Nature to controul that Where the Deed is punctually observed there 's no liberty to aver the contrary but where 't is not pursued the Averment is consistent Where it doth vary yet if nothing doth appear to the contrary there the fine shall be construed to be to the Uses of the Deed by construction of Law a Wife is bound by the Husband's Declaration and if the Fine be in pursuance of the Husband's Deed 't is as binding to her as if she were a Party An Infant cannot avoid a Fine where there was a Deed agreeable but by reversing it Then 't was argued That here was such a Variance as did allow of such Averment that 't is true the Deed of 29. had been a good Declaration of the Uses of this Fine notwithstanding the Variance if the Writing of 31. had not been made but there being a Variance that is admissible that this Fine now found differs as much from that in the Deed as if it had been levied at a time after that levying it before makes it not the same The Woman perhaps here did agree to levy a Fine at this distance of time that she might in the mean while have a competent Provision out of her Husband's Estate for her Joynture then when she levies this Fine at a different time she doth not do it in pursuance of the first Deed. Then 1 Rep. 76 99. 3 Bulstr 231. 2 Rolls Abridg 251. 2 Cro. 646. 2 Rolls Abridg. 799. Savil 124. 1 Leon. 210. 3 Cro. 210. 1 And. 240. were quoted and either answered or applied to this Point of Variance Then 't was said That there was a difference between a Fine that varies from a precedent Deed and a Fine that is followed with a subsequent Deed or Declaration of Uses If there be a subsequent Declaration the Heir at Law cannot aver that 't was to the use of the Conusor and his Heirs or to any other use then what is in the Deed the Party himself or his Heirs cannot aver it but they are estopped by this Deed tho' subsequent however a Stranger is at liberty to make such Averment But if a Deed be precedent and the Fine varies and is not the same there none are estopped neither the Party himself his Heir nor a Stranger because the Fine stands alone without any Deed referring to it and declaring the uses of it ' Then 't was urged That this second Deed was sufficient to declare the uses of this Fine If the use arise upon or by transmutation of the Possession as by Fine or Feoffment 't is sufficient without any Deed the use arises only upon the Parties Declaration or Appointment If without a transmutation of Possession there must be some Agreement binding the Party upon some Consideration for the use being founded in Equity the Chancery would never relieve where there was no transmutation of Possession or Agreement upon Consideration and if in Consideration of Blood it must be by Deed because the Consideration is not binding without it Moore 's Rep. Callow and Callow If this Writing of 31. had expresly declared that it should enure to the Husband and his Heirs upon such a Contingency this had been a good original Declaration of the use and would have altered the Estate because of the transmutation of the Possession and as 't is now penned 't is a good Writing sufficient to declare the uses of the Fine any sort of Agreement whereby the Parties intent appears is sufficient an use is an equitable thing and if it appears to have been intended that is enough 2 Leon. 14. Brent's Case any Agreement between the Party that hath the Estate and him who is to have it may raise an use in this Case a Bargain and Sale of the Lands carries the use tho' no mention of it 8 Rep. Fox's Case Crossing and Scudamore In this Case there was an Agreement betwixt Husband and Wife that he should have the Lands if he made a Jointure A Bargain and Sale tho' not inrolled a Charter of Feoffment without Livery shall raise the use of a Fine levied between the same Parties therefore this Writing is a good Appointment But suppose it were not so of it self 't is sufficient to controul that of the 29th for 't is agreed thereby that all Deeds shall be revoked which shews plainly that the Fine was not to be to the uses mentioned in that Deed especially when it varies from it A Parol Declaration of the Mind of the Party will be enough to controul and hinder the raising of an use by the Deed and Fine where different and if so then the use here is to the Wife and her Heirs Then supposing the Variance frivolous and immaterial this Writing of the Husband and Wife is a good appointment the Trustees or Conusees of the Fine need not to be Parties to the appointing or declaring of the uses The Indenture precedent is but directory and if there be another direction under Seal before the Fine it must over-rule the first Writing of it self seems enough 2 Cro. 29. 3 Cro. 571. But suppose an Indorsment on the Indenture revoking one use before the Fine be levied would not that controul it This is rather like a last Will and the last before the Fine must stand A Covenant to stand seized must have all the necessary Parts of a Deed so as to have been obligatory in Chancery before the Statute but a meer Declaration of uses need not be so formal The use declared by the 29th was always revocable till the Fine was levied and this is sufficient both to revoke the last Declaration and to declare new uses this amounts at least to a Deed-Poll and therefore sufficient Then were cited Moore 22 512. Latch 139. and many other Authorities And upon the whole 't was prayed that the Judgment should
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