years Did by Deed in 1639. in consideration of a Marriage with Elizabeth his then Wife and for that she had parted with her Interest in Goods Consideration c. which by Agreement she had the Disposition of for her own use and other Consideration herein mentioned did Assign over the said Premisses and all his Term therein Lease Assigned in Trust for a Joynture and after for Children to Rumbald Jacobson and Abrah Beard on Trust that the said Eliz. should have the profits during Life and after to James Paul Jane and Mary her Children or such of them as the said Elizabeth should appoint by her Will and for want of such Appointment to the said James Paul Jane and Mary or so many of them as should be living at her decease share and share alike and after Elizabeth dyed Paul the Son being dead in her Lifetime Afterwards by deed in 1643. in consideration of a Marriage between the said Philip Jacobson and Frances Earnely and for a Joynture for the said Frances and for Provision for such Children as he should have by her the said Philip Jacobson and James his Son Assigned over the said Premisses for the remainder of the said Term of 60 years and all his Goods and Houshold stuff unto William Daniel and Alexander Staples their Executors c. on Trust Trust to permit the said Frances and Philip and such Children as they should have between them to receive the profits during the said Term and after the decease of him and his said Wife without Issue then on Trust as to part to suffer the Executors of the said Frances and as to the residue the said James Jacobson his Executors c. to receive the profits during the Term afterwards by deed in 1646. Reciting all Assignments and Indentures aforesaid he the said Philip Jacobson Assigned over the said Premisses and his Term therein to Alexander Staples and Jeffery Daniel their Executors c. on Trust as to the said Frances Jacobson for the Premisses limited to her by her first Joynture and as to several other parcels of Land named as in the said Deed is recited which said last premisses contain 132 Acres which are in Trust for the said James Jacobson from the death of his Father during the residue of the Term and in case the said James should remain unmarryed or being Marryed and should dye without Issue and his Wife being a Widow then the Rents and Profits thereof to remain and be to his younger Brother and Sister Lelease of Trusts and afterwards James and Thomas Earneley Son in Law of the said Philip having Marryed Jane one of the Daughters of the said Philip did 22 Car. 1. Release to Staples and Daniel and to the said Phillip and Joanna Jacobson vid. Executrix of Rombold Jacobson who Survived Beard all and all manner of Trusts and demands whatsoever and Suits in Law or Equity which they or either of them their Executors c. had from the beginning of the World unto the date thereof in all the Lands and Tenements with the Appurtenances then or theretofore in the tenure of Philip Jacobson aforesaid in the County of Wilts and by another Release in Jan. 1647. the said James and Thomas Earneley Released unto the said Philip Jacobson and Joanna Jacobson all manner of Trusts and demands whatsoever in all Lands in the County of Wilts as in the former Release and afterwards by deed in 1653. reciting that there was a Marriage then shortly to be had between the said James Jacobson Son and Heir of Philip Jacobson and one Margaret Still the said Philip did Assign over unto John Still and Nicholas Still their Executor c. the said 123 Acres for the Residue of the Term to the use of James and Margaret for their Lives and after their Deceases to the right Heirs of the said James begotten of Margaret and if Margaret should Survive James and have no Child by him and he dye before the end of the Term then she should have power to sell 51 Acres of the premisses and the Residue to the Executors of Philip and if Margaret dye in the life-time of James not having any Issue of her Body by him begotten then living then to the use of the said James Jacobson his Executors Administrators and Assigns for the residue of the Term which Marriage took effect and Margaret dyed without Issue in the Lifetime of James after whose Decease the said James being in possession by Deed in 1661. for 400 l. Mortgaged the 123 Acres to Elizabeth Brinley and yet enjoyed the 123 Acres till he dyed and the said Elizabeth Assigned over the said Mortgage which now by mean Assignments is come to the Plaintiff and James is dead without Issue or Brother and the Defendants Zenobia Frances and Rachell do him Survive This Court was fully satisfied that the Deed in 1653. Voluntary conveyance by which the said James derived his Title and afterwards made the said Mortgage under which the Plaintiff claims Remainder after a Limitation of a Term to an Issue Male void in Law was a good Conveyance and well executed in James and that the Conveyance in 1646. was a voluntary Conveyance and the Estate thereby claimed by the Defendants created being an Estate in remainder after a Limitation of a Term for years to an issue in Tail was void in Law and Decreed the Plaintiff to the possession of the 123 Acres or the Mony due on the Mortgage and to enjoy against all the Defendants and Decreed that the Plaintiff and Defendant Hopkins who is Administrator of the Mortgager James Jacobson to come to an account Oliver contra Leman al' 29 Car 2. fo 102. A Trial at Law is directed to the Plaintiff to try his Right to a Reversion of Lands after the Death of the Defendant Wainwright so the Plaintiffs desire what time they think fit to try the same A Tryal at Law directed to be within a precise time but the Defendant insists that the Plaintiff ought to be confined to a convenient time which was prayed might be the Rule in this Case and that the Defendant might not be kept in suspence and to wait on the Plaintiffs Convenience when he shall think fit to try the same This Court ordered it to be Tryed in Easter Term next or the Issue be taken pro confesso Stawell contra Austin 29 Car. 2. fo 579. THat George Stawell Father of Vrsula and Elizabeth Stawell being seized in Fee of Lands Construction of a Will by Deed and Recovery thereon setled all the said Lands on the Defendant Sir John and Robert Austin and their Heirs to the said George for Life remainder for such Estates and Charges as he by Will or other writing should appoint remainder to the Heirs Males of his Body with remainders over and by Will persueant to the power reserved by the said Deed devised the premisses setled by the said Deed to the said
the Grandfather either ready Mony or otherwise to be limited by any act thereafter to be executed in his life time or by his last Will to the Sum of 1500 l. apiece together with 20 l. per annum until the said 1500 l. apiece should be paid unto them the same to be in satisfaction of all Moneys that they might claim by force of the said Indenture Tripartite with Proviso That if the said William the Grandfather should by Will or otherwise appoint them 1500 l. apiece or 1500 l. to the survivor of them for their Portions with such yearly Maintenance as aforesaid so as the same should be well and truly paid unto them accordingly Or if before such portions should be paid the said William Every their Brother should die without Issue Male whereby the said premisses should be charged for raising of Portions and Maintenance aforesaid that then the Trustees should not levy the Portions by that Indenture limited other than what should be paid in the life time of William Every their Brother And it is thereby declared that in case the said Susanna or Martha or either of them should die before their Portions in and by the said last Indenture to them limited should become due and payable to them that then the said portion and portions of them or either of them so dying should not go or be to the survivor of them or to any the Executors Administrators or Assigns of them or either of them but should go to whom the said William the Grandfather by Writing or Will should appoint and for want thereof to his Executors or Administrators And it is further declared That the said Susan and Martha shall not have any benefit in case that they or any other for them should take any advantage or benefit by means of the said Indenture Tripartite or any Proviso therein contained And then the 9th of March 1651 William the Grandfather makes his Will therein reciting that he had by several Deeds all dated Feb. 21. Car. 1. granted to Knight Cade Webber and Ford certain Lands in the County of Dorset for terms of years determinable upon the death of certain persons therein mentioned upon trust and for the use and benefit of such person or persons to whom he should by his last Will give limit or appoint the same And by his Will gave limited and appointed all the said Estates and Terms so by him granted to the said Knight Cade Webber and Ford to the Defendants Gold and Doble in Trust that the said Gold and Doble or the survivor of them or the Executors or Administrators of the survivor of them should dispose of all the Rents and Profits of the said Lands or should otherwise sell assign and convey the said Estates and Terms as to them should seem most convenient towards the raising of 1500 l. apiece to the said Susan and Martha And did thereby give and appoint to each of the said Susan and Martha 900 l. to be paid unto them severally out of his personal Estate whereof he should die possessed accounting therein all such Moneys which he had or should lend upon the Specialties taken in the Names of Gold and Doble towards the further raisings of their said Portions unto 1500 l. apiece having as by his Will is expressed by his Deed dated the last day of December then last past mad provision for advancing their said Portions to the Value out of his Lands in Com' Somerset which said Portions his last Will and meaning was should be paid unto them the said Susan and Martha severally at their respective Ages of 21 years or sooner if they should be respectively Married with the Consent of the said Gold and Doble or the Survivor of them with a Proviso That if William Every his Grandson should happen to die without Issue Male of his Body lawfully begotten before the said respective Portions should become payable to the said Susan and Martha according to the time before limited whereby the said Susan and Martha should be Intituled to 1500 l. apiece by virtue of the said Indenture Tripartite made upon his deceased Son's Marriage then the said Legacies or appointments of Portions unto Susan and Martha thereby made should be void and of his Will made Gold and Doble Executors And the Plaintiff as Administratrix of her said two Daughters Susan and Martha exhibited her Bill against Gold and Doble Executors of William the Grandfather and Webber the surviving Trustee in the Deed of the Lands in Somerset and against John Every the Heir in Tail of William the Grandfather and seeks to be Relieved upon the Deeds and Will before-mentioned for the 1500 l. apiece given to Susan and Martha her Daughters The Defendants say That William the Grandfather died in the life time of William the Grandson and that the personal Estate of William the Grandfather came to 4000 l. and that William Every the Grandson was Buried 23 Nov. 1660 and was about 20 years old when he was Buried and Susan the Plaintiffs Daughter was Buried 25 July 1655 and was about 18 years old when she was Buried and Martha the Plaintiffs Daughter was Buried 4 July 1660 and was about 20 years old when she was Buried and it appears there was sufficient Personal Estate to satisfie the several Portions demanded Which Case the Master of the Rolls having considered and upon the Hearing before him Declared That he was satisfied the 1500 l. apiece by the Deed and Will aforesaid for Portions to Susan and Martha Daughters of the Plaintiff was a Debt or Duty well fixed in them by the said Deeds and Will and by their Deaths did accrue and belong to the Plaintiff their Mother as Administratrix to them did Decree the same should be paid accordingly Which Opinion and Decree the Defendants appealed to the Lord Keeper who being assisted with Judges and upon reading the Deeds and Will aforesaid were all clear of Opinion That the Indenture Tripartite A Prior Deed of Settlement barred by a subsequent Deed and New provisions made for Portions of 27 June 7 Car. 1. is not as the Case now stands material or conducing to the state of the Case or to the limitation of the Time for payment of the Portions for that the same is by Deed of Bargain and Sale and Release thereupon in 1651. barred and a New provision made for raising the said Portions in such manner as he should limit by any act in his life time or by his last Will. By which Deed the Survivorship between the two Daughters is barred and a provision made That if either of them die in the life time of William the Grandson the Portion of her so dying shall not go to her Executors but to the Grandson And William the Grandfather having by his Will of the 9th of March 1651. wherein he recites the Deed of Decemb. 1651. limited and appointed 900 l. apiece to be paid to his Daughters severally out of his personal Estate towards
the raising their Portions to 1500 l. apiece having as is recited made provision by his Deed dated the last of December 1651 for advancing their Portions to that Value And he doth by his Will declare and appoint that such Portions should be paid unto them the said Susan and Martha severally at the respective Ages of 21 years A Deed and a Will construed as one entire provision or limitation how Portions should be raised or sooner if they should be married and both of them dying unmarried before they or either of them attained the Age of 21 in the life time of William the Grandson And the said Deed of Decemb. 1651. relating to the Will and both of them making one entire provision and limitation of the said Portions how the same shall be raised and what time paid His Lordship and the Judges were all clear of Opinion there was no ground for the former Decree made by the Master of the Rolls or pretence of Claim to either of the said Portions of 1500 l. by the Plaintiff as Administratrix to Susan and Martha and discharged the Decreed and dismist the Bill Beauchamp contra Silverlock 20 Car. 2. fo 765. THat William Beauchamp Orphans Mony the Plaintiffs Father being a Freeman and Citizen of London by his last Will gives a Third part of his Lands and Tenements whatsoever and wheresoever to the Plaintiff and appointed Dorothy his wife Guardian to his Children and made her sole Executrix and Richard Cambden Robert Cheslyn John Pace and Hogan Hovell Overseers and the said Dorothy makes her Will afterwards and gave the greatest part of her Estate to the Plaintiff and Willed her Brother Hogan Hovell and her Sister Margaret Cheslyn and the Survivor of them to be Guardian to her Children and made the said Hogan Hovell and Margaret Lovell her Executors and died That by Articles of Agreement between Hogan Hovell Robert Cheslyn and Margaret his wife reciting the Will of Dorothy Beauchamp whereby they agreed to administer the Estate to the best benefit of the Children and exhibit a true Inventory into the Prerogative Court and that they should with the consent and not without the consent and knowledge of each other use their best endeavours to get in the Estate and not to release any part of it without each others consent and that if Hogan Hovell should die and Margaret survive then the Executors or Administrators of Hogan Hovell to make a true account to Margaret of all the Estate which he should receive of the said Testators and pay the same to Margaret or to such person who shall by the consent of the said William Beauchamp the Plaintiff be chosen as Guardian to receive the fame or to such person to whom by Right or Law the same ought to be paid and the same Agreement and Covenant is if the said Margaret should die and Hovell survive That Robert Cheslyn died and the said Margaret married the Defendant James Silverlock And Hogan Hovell possest himself of the greatest part of the personal Estate of the Plaintiffs said Father and Mother and received the profits of the Lands of the said Margaret receiving only Title as Executor That Hogan Hovell made his Will and Mary his wife Executrix and afterwards the Guardianship of the Plaintiff the Orphan is at his Friend's Decree committed to Sir William Bateman That the said Mary Hovell the Executrix of Hogan exhibited an Account into the Orphans Court of the Mony received by her Husband belonging to the Plaintiff out of which Allowances being made there rested due to the Plaintiff 933 l. and that afterwards the Defendant Silverlock and Margaret his Wife the Surviving Executrix of Dorothy did by their Deed impower Sir William Bateman then reputed a Man of great Estate to receive of Mary Hovell Executrix of Hogan Hovell who was the other Executor of the said Dorothy the said 933 l. to the use of the Plaintiff and to give a discharge for the same that Sir William Bateman received it accordingly and gave a Discharge for it in the Name of Silverlock and his Wife and gave Security after that to the Court of Aldermen to pay the Plaintiff 800 l. That Mary Hovell died and made Executors Executors paying in Orphans Mony by consent of Friends and Trustees into the hands of Sir W. B. Guardian who gave Security to the Court of Aldermen not to be charged upon the Insolvency of Sir W.B. That the Plaintiff did several times after he came of Age own Sir William Bateman to be his Debtor for the 933 l. that the Plaintiff received of Sir William Bateman 440 l. and gave Acquittances for it the first was on the 4th of January 1663 the last on the 25th of July 1666 that the Plaintiff came of Age in Decemb. 1663 and the said Sir William Bateman became Insolvent at Christmass 1666. The Question touching the said 933 l. claimed by the Plaintiff and whether the same should be charged on the Defendant Silverlock and surviving Executor of Dorothy Beauchamp or on the Defendant Sir William Bateman who had given Security to the Chamber of London as aforesaid for the Plaintiffs use This Court as to the Executors of Mary Hovell declared there was no reason to charge him therewith but that they ought to be discharged and dismist from being accountable for the same And as to the Defendant Silverlock the Case being as aforesaid declared that there was a clear Intention of all parties to perform the parties aforesaid and that the said Defendant Margaret never received any Estate during Hogan Hovell's Life and that Sir William Bateman being chosen by the consent of the Friends of the Plaintiffs and by the Order of the Court of Orphans appointed Guardian to the Plaintiff she the said Margaret gave in an Account to the Court and impower'd Sir William Bateman to receive the Mony who before had given Security to answer the same or the greatest part thereof and when the Plaintiff came of Age he admitted and owned Sir William Bateman to be his Guardian and received several Sums of Mony from him and Sir William proved not Insolvent till three years after and so there being no default in the said Defendant Margaret there was no reason to charge her the said Margaret with the same but that she ought to be dismist and discharged from the same But Sir William having given Security to the Court of Orphans for 843 l. part of the said 933 l. by him received by Order of the Defendant Margaret and that for the residue being 90 l. 10 s. there was no Security given by the said Sir William This Court Declared That the Defendant Margaret ought to be charged with the same and Decreed accordingly but not with Interest for it Windham contr Love 20 Car. 2. fo 100. 21 Car. fo 741. THe Bill is Executory Devise That the Dean and Chapter of Winchester June 17 Jac. granted the premisses to Gilbert Searle his Heirs or
Roberts conveyed the Mannor and Lands in question to the Defendant Tracy for payment thereof Payment of Debts and of his other debts but before that Conveyance to Tracy the Defendant Nicholas standing ingaged as Surety for the said Roberts for several of the debts the said Roberts made the said Nicholas a Lease of the premisses for Sixty years at a Pepper-Corn Rent and such Lease being made and no care taken for satisfying the debts the Plaintiffs Sue the said Roberts for their debts so to avoid such Prosecution made the aforesaid Conveyance to Tracy in Fee upon Special Trust to pay all his debts but Tracy combining with the Defendant Astrey who had procured the said Nicholas to assign his said Lease to him Notice of Trust after Notice of the Trust contrived a conveyance of the premisses from Tracy to him the said Astrey by way of Bargain and Sale Inrolled so that Astrey pretends himself a Purchasor of the premisses from the said Thomas Roberts and not under the said Deed of Trust or Lease and Assignment and pretends the Trust is destroyed the said Conveyance being not Inrolled whereas the said Deed was well executed and the Trust accepted by which the said Deed cannot in Equity be made void until payment of the said debts The Defendant Astrey insists Deed in Trust to pay debts tho' the Creditors are not Parties and no Certainty of Debts therein appearing yet good against an after-Purchasor who had Notice of this Trust That the Deed to Tracy for the payment of debts was a void Deed as against a Purchasor there being no Creditor party or privy thereto nor any Schedule of Debts thereunto annexed and that the said Conveyance was voluntary and made only between Roberts and his Wife and Tracy and the Creditors not parties thereto and that by the said Conveyance Roberts was to have all such Mony out of the premisses from time to time as he thought fit for the livelyhood and subsistence of himself his Wife and Family and that the said Conveyance to Tracy being voluntary Voluntary Conveyance and in its nature but in Trust for Roberts and Revokable by him after the Conveyance to Astrey and Roberts having exhibited a Bill against Tracy to set aside the said Conveyance Tracy surrendred the same to Roberts who Revoked it and both Cancell'd it and afterwards Roberts and his Wife conveyed the premisses to Astrey and levied a Fine thereon But the Plaintiff insists That after the Conveyance to Tracy was made he declared he would pay the Plaintiffs debts which is proved by the Plaintiff Sir John Knight The Defendant insists One of the Plaintiffs a Witness Deposition That Sir John Knight is interessed and intituled to some of the debts in question and continued a Plaintiff throughout the Cause and is not struck out of the Bill and is but a single Witness and his Evidence denied by the Defendants Answer and therefore his deposition ought not to be read This Court declared They would see Presidents where a Conveyance made voluntarily for payment of debts and no Creditors named or appearing in any fix'd certainty of the persons and with a Proviso for the Grantor to have Maintenance out of the premisses conveyed for himself and Family without limitation of how much whether such Conveyance be Revokable by the Grantor and Grantee This Court with the assistance of the Judges were clear of Opinion That the Deed from Thomas Roberts to Tracy and the Trust thereby created were made and treated with an honest Intention to pay the debts of the said Thomas Roberts and that the same was not fraudulent Fraudulent Deed or not though no certainty of the debts appear therein but the same being made on a Trust which was a good foundation and a just and honest Consideration and none of the Creditors complaining of any fraud the same ought to be taken as a good Deed and the Defendant Astrey coming in under this Deed and having Notice of this Trust and paying the debts under it ought to receive no countenance in this Court but the Estate ought to be charged with the same in whose hands soever the same shall come and decreed the Deed of Purchase from the said Roberts to Astrey be set aside and Astrey to account for the Profits c. and the Plaintiffs and all the Creditors to be paid their debts out of the said Estate Eyre contra Good al' 21 Car. 2. fo 211. THe Bill is to be relieved against a Bond of a 1000 l. Award penalty for the performance of an Award whereby possession and profits of Lands are awarded to the Defendant The Defendant insists That there was no surprize in the said Award but the said Award was by the direction of the Plaintiffs Friends and says it ought not to be set aside which if it was it would involve many Suits and insisted That the said Award is in the nature of an Agreement and ought to be performed This Court taking Notice Cross Bills about the setting aside or confirming an Award dismist and sent to Law that the Award in question was not made by the Order of this Court but that it proceeded from the voluntary Submission of the parties two Judges being chosen by themselves who declared their Opinion That they saw no cause to decree the Award to be set aside nor on the other side to confirm it or to relieve the Plaintiff but ordered both Bills to be dismist the Plaintiff electing to go to Law This was heard by Justice Tirrel This Cause came to be Re-heard before the Lord Keeper being assisted with Judge Wild who confirmed the Order above Hale contra Acton 21 Car. 2. fo 409. THat Edward Eltonhead by his Will gave the Defendant Mrs. Gilbourne 1000 l. to be first paid after his debts besides a Share out of the dividend of the Estate when as after the making the said Will the said Edward Eltonhead and Henry Gilbourne Father-in-Law to the Defendant Mary Gilbourne before her Marriage came to an Agreement for what the said Mary should have out of the said Estate and that there should be but 1100 l. and the same was to be in full of what was intended her thereout and that the said Edward Eltonhead often so declared and in his life-time paid 500 l. and after his death his Executor paid 100 l. more in pursuance of the said Agreement Devise by Will and an Agreement about a Portion not intended several Sums so as the chief Point then controverted being whether the said Defendant Mrs. Gilbourne ought to have the 1100 l. Portion and 1000 l. Legacy mentioned in her Fathers Will or that he intended to give her any more out of his Estate than the said 1100 l. The Master of the Rolls declared That the 1100 l. ought to be in full of what the Defendant Gilbourne was and ought to have out of the said Estate and decreed accordingly This Cause came
Deed made by the Plaintiff Eliz. in Feb. 1666. Frandulent Deed. before her Marriage with the Plaintiff Sir Philip Howard and that the Plaintiff Sir Philip in right of his said Wife might have all her benefit and interest in or to the Estate of Sir John Baker her former Husband and receive the Rents and profits of the premisses The Case being that Sir John Baker the Father being seized in Fee of Lands by two Deeds Tripartite of Lease and Release made between himself of the one part Sir Robert Newton deceased of the second and Sir John Baker the Son and Dame Eliz. the Plaintiff and sole Daughter of Sir Robert Newton of the third part in consideration of a Marriage between the Plaintiff Dame Eliz. and Sir John Baker the Son and 4000 l. portion conveyed the same to Sir Robert Newton and his Heirs part of which Lands were for the said Dame Eliz. Joynture and Sir John Baker the Father and Dame Mary his Wife being dead Sir John the Son sold part of the premisses for payment of debts part whereof was the Joynture of Dame Eliz. and in consideration of the said Dame Elizabeth joyning in such sale and parting with her Joynture Sir John her Husband in lieu thereof and of 1500 l. to be paid to Dame Elizabeth for a Joynture house limitted the premisses unsold to the said Dame Elizabeth and the Defendants for 400 years upon Trust by Sale thereof to pay the said Dame Elizabeth the said 1500 l. and also the Rents and profits of the whole until Sale and the residue of the said premisses remaining unsold to Dame Elizabeth during her life and after to wait on the Inheritance And in 1658 the Inheritance was conveyed to Sir Robert Newton and his Heirs and he by Will devised the same to the said Dame Elizabeth for life Remainder to the first Son of the Plaintiff Sir Philip and Dame Elizabeth so the Plaintiff being intituled to the 1500 l. and the term of 400 years after the Trusts performed and so ought in right of the said Dame Elizabeth his Lady to continue in the possession of the premisses and receive the Rents and profits thereof which the Defendants refused to do pretending the term of 400 years is limited to them upon other Trusts and in particular that the Plaintiff Dame Elizabeth before her Marriage to the Plaintiff Sir Philip by her Deed of the 9th of February 1666 Assigned to the Defendants all monies then due or to be payable to her by vertue of the Deed in Trust for her benefit and to be at her disposing during the Joynt lives of her and the said Sir Philip whether she Married or continued Sole and that she should have power by writing under her Hand and Seal to dispose thereof for the benefit of her Daughter by her former Husband and that she hath disposed thereof accordingly which said Deed the Plaintiff insists is fraudulent or with power of revocation and never mentioned to Sir Phillip and that Sir Philip after his Marriage setled 500 l. per Annum on the said Dame Elizabeth for a Joynture which he would not have done if he had known or understood the said Dame Elizabeth had made such Deed or disposition as aforesaid of her former Husbands Estate and since their Marriage she desired leave of Sir Philip that she might receive the Rents and profits of the said Lands of her former Husband without mentioning the said Deed and therefore the same ought to be set aside The Defendants do insist the said Dame Elizabeth before her Marriage with the said Philip did declare to him that who ever did Marry her should have no benefit of any Estate that she had by her former Husband and that Sir Philip did agree to bar himself thereof and take no benefit thereby A Widow makes a Deed of her former Husband Estate and marries the second Husband not privy to it the Deed set aside and the second Husband to enjoy the Estate and that Sir Robert Newton looking upon the Estate as setled on his Grand-children as aforesaid and had given his personal Estate and 700 l. per Annum to the Plaintiffs and their Sons and the said Sir Robert Newton never pretended right to the said Estate or intermedled therewith that there is no reason to set a side the said Deed of the 9th of Feb. aforesaid This Court being assisted with the Judges on reading the said Deed it not appearing unto this Court that the said Sir Philip had any notice of the said Deed 9th of Feb. 1666. till after the death of the said Sir Robert Newton which was several years after the Marriage nor was privy or consented to the making of any such Deed but haveing intimation that Dame Elizabeth intended to dispose of her interest in her former Husbands Estate from such Husband as she should Marry broka off the treaty of Marriage which was afterwards brought on again by some Friends of the said Dame Elizabeth and that the said Sir Philip was induced to Marry the said Dame Elizabeth upon the hopes and confidence of having the interest she had in the Estate of the said Sir John Baker her former Husband without which he would never have married her and that the said Sir Philip never knew of the said Deed of the 9th of Feb. 1666 but the same was a fraud upon Sir Phillip and that therefore no use ought to be made thereof and decreed the said Deed of the 9th of Feb. 1666 be absolutely set aside and no use to be made thereof against the said Sir Philip or any claiming under him Poter contra Habbert 24 Car. 2. fo 591. THis Bill is to have a redemption of a Mortgage made in 1636 Mortgage by the Plaintiffes Father to one Abraham Dawes for 5000 l. and for non-payment of the Mortgage mony Sir Thomas Dawes Son and Heir of the said Abraham Dawes entred in 1641 and he and his Assigns have ever since taken the profits And the Defendant insists that the said Thomas Dawes in 49 conveyed the mortgaged premisses to Hugh Hubbert the Defendants Father for 7000 l. and that in 1641 when Sir Thomas Dawes entred there was 5000 l. due on the Mortgage besides interest so he would be charged without 350 l. per Annum for mean profits since that time and would have 6 l. per Cent. Interest for the 7000 l. from the time it appearing on the conveyance This Cause being first heard by Judge Ransford who ordered the Plaintiffs to redeem Computation of interest monies according to the Statute in force and the account for the Interest of the 500 l. to begin from 1636 the time of lending the mony and from that to 1642 Interest to be paid according to Acts then in force and from 42 to 46 Interest at 8 l. and 4 l. per Cent. The Cause being heard again by the Lord Keeper Bridgeman assisted with Judge Tyrrle Morton and Wild who ordered the
Conscience of the Court in the application of the payment of the Mony and therefore as this Case is the whole Mony having been decreed and setled as aforesaid the Examination of the time of the actual Entry of the said Judgment tended not to the invalidating thereof but only to inform the Court when and how it came to be Recorded Examination of Originals filed is to be in the Courts at Law which in Cases of Originals filed to prevent the Statutes of Limitation and other Cases of like nature are usually Examined in the Courts at Law the Court saw no cause to relieve the Plaintiffs on their Bill of Review and dismissed their Bill of Review Dethick contra Banks 25 Car. 2. fo 143. A Free-man of London did assign over an Adventure to the Defendant his Son A Free-man of London disposeth an Adventure to his Son No breach of the Custom as to the Wives third part against which the Plaintiff complains and insists It is contrary to the Custom of London and tends to defeat the Plaintiff his Wife of a full third part of the personal Estate This Court with the Judges held the disposition to be good and could not relieve the Plaintiff Harmer contra Brooke 25 Car. 2. fo 648. THe Bill is to have an Execution of a Marriage Agreement Bill to perform a Marriage Agreement the Plaintiff Harmer with the encouragement of Thomas Hamling was to marry the Plaintiff Elizabeth the only Daughter and Heir of the said Thomas Hamling the Plaintiff Harmer being a man of a great Trade and in Consideration thereof the said Thomas Hamling was to pay the Plaintiff Harmer 500 l. at Christmass following and to settle on the Plaintiff and his Heirs a House in Sussex and at his death to give to the Plaintiff Elizabeth his Daughter all his Estate real and personal except 400 l. which he intended to the Defendant his Brothers Son whereupon the Plaintiff Harmer married the said Elizabeth but now the said Thomas Hamling the Plaintiffs Father refuses to perform his Agreement and Promise aforesaid the Plaintiff marrying without his consent and liking as is pretended and died without performance thereof and made a Will and the Defendant his Executor which Will the Plaintiff insists was voluntary and ought in Equity to be set aside the Plaintiff being disinherited thereby and to have the said Marriage Agreement performed is the Plaintiffs Bill The Defendant insists That the said Marriage was had by surprize and without the Consent of the said Thomas the Father and that he did never approve of it but when told of it was in great Passion and said his Daughter was undone and then made his Will in these words viz. I give and bequeath unto Elizabeth my only Daughter lately married against my consent and good liking to Francis Harmer the Sum of 20 l. over and above the Sum of 500 l. which I intend to pay her my self in full for her Portion and the said Thomas the Father being afterwards moved to alter his said Will declared he would not alter the same and that he would not be a President to disobedient Children and the Defendant claims the said Estate real and personal by virtue of the said Will. This Court ordered it to be Tried at Law Whether Thomas the Father did agree to give the Plaintiff Francis Harmer with the said Elizabeth any other or further Estate real or personal at any time over and besides the said 500 l. That a Verdict passed for the Plaintiff And after a Trial at Law the Marriage Agreement decreed to be made good That Thomas the Father did agree to give the Plaintiff Francis Harmer with the said Elizabeth a further Estate real and personal besides the 500 l. This Court was satisfied there was such a Marriage Agreement and that the same ought to be made good and decreed accordingly Tregonwell contra Lawrence 25 Car. 2. fo 582. THe Bill is An Injunction to restrain Ploughing or Burn-beating of Pasture to restrain the Defendant being Tenant for life from ploughing up or converting into Tillage Pasture Ground to the damage of the Plaintiffs inheritance The Defendant insisted That the said Land was very full of Bushes and Fuz and that the Ploughing and Burn-beating was an improvement of it The Plaintiff insisted That the Lands are Sheeps-strete or Sheeps-slight the surface or soyl being so thin that if the same be ploughed up two years together the Lands will yield no profit in many years after This Court on reading an Order 20th Febr. 25 Car. 2. and a Certificate of Referrees doth decree That a perpetual Injunction be awarded to restrain the Defendant from Ploughing up or Burn-beating of the said Lands above two years Sutton Vxor ejus contra Jewke 25 Car. 2. fo 178. THat 1500 l. Sum left for a Portion But if she marry without consent then a part to be to another was to be put out at Interest for the use and benefit of the Plaintiff Ann and then the said 1500 l. and the proceed thereof to be paid her at her Age of 21 or Marriage but if the Plaintiff Ann should Marry without the Consent of the Defendant Jewke and his Wife being her Father and Mother or one of them or the Survivor of them then 500 l. part of the said 1500 l. to be paid to such person as the Defendant Jewke his Wife by Writing under her Hand and without her Husband should appoint That the said Defendant Jewke his Wife died in 1668. without making any Appointment so that the Plaintiff Ann is thereupon become intituled to the whole 1500 l. and the proceed thereof That the Plaintiff Ann married in 1671. and this Suit is to be relieved for the 1500 l. and Interest The Defendant Jewke insists That Mary his Wife died in 70. but before her death in 1669. by Deed Parol directed that in case the Plaintiff Ann married without the Consent of her the said Mary or the Defendant Jewke her Husband then 500 l. part of the said 1500 l. to be paid to her and the Defendant or the Survivor of them and that the said Deed was made upon mature deliberation to keep the said Plaintiff in due Obedience and that the Plaintiff Sutton having in a clandestine manner married with the Plaintiff Ann without the Defendant Jewke his privity or consent and after he had forbidden his Daughter to marry with him on the forfeiture of his Blessing or what otherwise she might expect from him the said Defendant Jewke by means thereof and by being Administrator to his late Wife became intituled to 500 l. part of the said 1500 l. So the Chief point now controverted is Whether the Plaintiff Ann. be intituled to the whole 1500 l. or whether she had not forfeited 500 l. thereof by her marriage without her Fathers consent and privity and contrary to his direction and advice His Lordship was fully satisfied 500 l. Decreed
Charles to reward such of his Children and Grand children as they should demerit and as Sir Charles should think fit and not an absolute fixed Trust to create a certainty of right or in terest as to any certain Proportion in any of the Children or Grand children much less in the Plaintiff Civil Rich who demands the greatest part of the Estate and that it was in the Grandfathers power to give the said Estate or what Proportions thereof as he pleased to any of his Children or Grand-children but whatever of the real Estate of Sir Edwin was disposed or setled by the said Sir Charles by act Executed in his Life time or was devised or given by the Will of the said Sir Charles the Plaintiff not to be releived but dismist the Bill Boeve contra Skipwith 30 Car. 2. fo 140. THe Bill is a Suplemental Bill A Supplemental Bill for a further discovery to have a further discovery from the Defendant by way of Evidence for the better clearing the Matters depending on the Account which the Defendant hath not answered in the former Cause The Plaintiff pleaded the former Bill to which the Defendant answered and the Cause heard and the Account directed This Court ordered the Defendant to answer to all Matters in this Bill not answered to in the former Cause but the Plaintiff not to reply nor to proceed further Dom. Grey al' contra Colvile al' 30 Car. 2. fo 397. THe Plaintiff the Lady Greys Bill is to be relieved for a debt of 1500 l. and Interest on Bond Lands purchased in Trust decreed Assets to to pay Judgment wherein John Colvile did bind himself and his Heirs to repay the same unto the Plaintiff her Executors and Assigns that the same might be paid out of the Lands which were purchased by the said John Colvile with his own proper Mony in the names of himself and the Defendants Wife to hold to them two for their lives and then to the Heirs of Colvile and the rest were purchased in the names of the said Defendants Morriss and Saunders in Trust for the said John Colvile and his Heirs That soon after and before the 1500 l. was paid the said John Colvile died and the right and equity of the premisses during the life of the said Defendants Wife is in Josia Colvile and the Reversion in Fee after the death of the said Wife will descend to the said Defendant Josia Colvile as Son and Heir of the said John Colvile and the profits are received by him or for his use that the said John Colvile dying intestate Administration is granted to Dorothy his Relict who pleads she hath no personal Estate whereupon the Lady Grey commenced a Sute at Law by filing an Original for her said debt against the Defendant Josia as Son and Heir of the said John Colvile and hath got Judgment thereon to have satisfaction for the said debt out of the Reversion of the Lands of John which descended in Fee to the said Defendant Josia Colvile and ought to have satisfaction accordingly but the said Defendant Josia pretendeth he hath nothing by descent in present but the Reversion of the Lands purchased in the names of John Colvile and his Wife after the death of his Wife whereas he and the other two Defendants were only Trustees for John Colvile and his Heirs and their Trust being now come to the Defendant Josia they are liable as Assets in equity for satisfaction of the Plaintiffs debts and the Plaintiff ought to be let into the immediate Possession and the said Josia also insists That the premisses are incumbred by a former Judgment of one Lease for 800 l. and the Plaintiffs Creditors and other the Creditors in their Suit seeking relief against the same Defendants upon the same Trust and Equity and to have their debts paid out of the said Lands they insisting they are Creditors by Judgment grounded on Original of the same day and date with the said Lady Grey and ought to be satisfied in equal degree and time The Plaintiffs Creed and the other Creditors insist Judgments to Attach Lands according to priority of Originals That they for so much as the Estate in Law of Wise is in the Heir that their Judgments ought to Attach the Lands according to priority of Originals and tho' the said Leke have obtained a Decree prior to the Creditors in these Suits yet the same is to be subject to the direction of this Court and ought not to take place but according to the Date of their Originals This Court it being admitted by all that the Original on which the said Lekes Judgment is grounded is prior to all the other Creditors Originals and that the Plaintiff the Lady Grey and Creeds Originals are next in priority and bear the same date one with another and ought next to be satisfied with other Judgments who Originally bear the same date declared that the Estate purchased in the Names of the Defendants Wise as aforesaid was a Trust for life attending the Reversion and so liable to make the several Plaintiffs Satisfaction for their Debts and should be enjoyed by the Plaintiffs against the said Wise and Josiah Colvile the Heir and the Court decreed that if the Estate of Wise as aforesaid were not sufficient then the said Reversionary Lands purchased in the Names of the said Morris and Sanders after the death of Sir John Tufton who hath an Estate for life in the said Lands should go towards Satisfaction of the said Debts Carr contra Bedford 30 Car. 2. fo 64. THe Bill being Will. that Edmund Arnold having no Child by his Will whereof he made the Defendant Bedford Executor gave several Legacies to several persons and uses and gave all the rest and residue of his Moneys and Personal Estate after Debts paid to and amongst his Kindred according to their most need to be distributed amongst them by his Executors saving such Legacies as should by his Will or any Codicil further dispose of and the Testator afterwards by Codicil gave other Legacies and desired that a care and regard should be had to the Plaintiff John Buncher The Defendant the Executor insists that he not knowing to what degroe of Kindred the bequest of the said residue ought to extend he had annexed two Schedules of Remorest Kindred and is advised until their several Claims were examined and setled by this Court he could not safely make a distribution This Court taking into consideration Devise after Debts and Legacies paid the Residue amongst his Kindred according to their most need this to be extended according to the Act for better Settlement of Intestates Estates to what degree of Kindred the Testator's bequest of the residue of his Personal Estate to his Kindred of most need could extend that the Act of Parliament for better setling Intestates Estates was the best Rule that could be observed as to the Limiting the extent of the word Kindred and
Value if so proved is to continue to be paid whether the said premisses rise or fall in Value and decreed accordingly Hethersell contra Hales 31 Car. 2. fo 845. THe Question in the Case is touching 2500 l. 200 l. allowed a Trustee for Charges and Expences in managing a Trust demanded by the Defendant for his Charges and Expences in managing the Trust in question which began in 1668. and continued till this Defendants Answer was put in in which time the Defendant received 20000 l. and paid the same all away to the Creditors and the Plaintiff had not surcharged the Defendant 6 d. This Court took till this day to consider what was fit to be allowed in a matter of this nature and having considered that the Defendant was a Friend to the Family and undertook the Trust at their great Importunity he having a considerable Estate when he undertook the Trust and considering the charges of Surveying the whole Estate setting and letting the same looking after Tenants adjusting their Accounts calling in their Rents returning Monies to Creditors and treating with and stating their Debts and procuring and agreeing with Purchasors and for Law charges and for keeping Servants and Horses and employing others in Journeys to London and elsewhere and his Care there lying from home a long time was of Opinion That the Defendant might well deserve the whole 2500 l. yet doth allow but 2000 l. which the said Defendant is to have Ray Vx ejus contra Stanhope 31 Car. 2. fo 809. THe Bill is That Sir Edward Stanhope Trust the Plaintiff Elizabeths Grandfather by Deed demised Lands to Trustees for ten years after the said Edwards death upon Trust that they should out of the Profits pay to the Plaintiff Elizabeth for her Maintenance 20 l. per annum until her Age of 21. and should further pay to the Plaintiff Elizabeth at her Age of 21. if she so long keep unmarried 1000 Marks for her Portion That the said Sir Edward died leaving Issue Edward Stanhope the Plaintiff Elizabeths Father his Son and Heir she being then 12 years of Age That after Sir Edwards death the Trustees did not intermeddle but left all to the management of the said Plaintiffs Father who received all the Profits and on that Consideration Edward Stanhope the Plaintiffs Father demised to Trustees the said premisses the Reversion of which he was seized in Fee expectant upon the said Term of 10 years and other Lands whereof he was Seized in Fee to hold for 20 years upon Trust to pay the Plaintiff Elizabeth 20 l. per Annum until her Marriage and 500 l. after her Marriage in such manner as in the said Deed for 20 years is expressed and the same was said to be made in consideration of the Preferment the said Sir Edward intended for the Plaintiff Elizabeth his Grandchild that the Plaintiff received the profits of the premisses in the said former Lease during the 10 years and profits of the Premisses in the said latter Lease so long as he lived and maintained the Plaintiff and in 1658. the Plaintiff Elizabeths Father dyed without Issue Male but in his life after the said Lease for 20 years setled the premisses with other Lands of 500 l. per Annum upon the Defendant his Brother without any consideration save natural Affection and the Defendant hath since received the profits that the Plaintiff Elizabeth was unmarryed at her Fathers Death and was his only Child and about nineteen years before the Bill exhibited she Marryed George Stanhope who dyed and about 7 years since she Marryed the Plaintiff Ray so to have Satisfaction of the 20 l. per annum from her Fathers Death to the time of her Marriage with George Stanhope and the 500 l. and Interest from her said Marriage but the Defendant refuseth to pay the same pretending the said several Terms are expired and that the Lands of 60 l. per Annum descended upon the Plaintiff Elizabeth by her Fathers permission in Satisfaction of the said Money but the Plaintiff insists the Lands descended to her from her Father were charged with 500 l. which she hath paid and she had no other provision made for her out of her Fathers Estate and that the Defendant had an Estate of 500 l. per Annum come to him by a voluntary Settlement from the Plaintiffs Father The Defendant insisted that if the Plaintiff Eliz. Father did make such demise for 20 years he had no power so to do being but Tenant for life by a Settlement made by the said Sir Edward and so the Defendant not liable to pay the Moneys and the Defendant claims the Lands and Premisses by vertue of a Fine and Settlement made by the said Edward Stanhope the Plaintiffs Father wherein the Defendant and his Brother George Stanhope joyned and though the said Defendant is the Heir Male of this Family yet he receives little there out of the said Estate the same being charged with 86 l. per An. and the Plaintiff hath not only enjoyed the said 62 l. per ann charged only with 500 l. but also as Administrator to her said Father received out of his Personal Estate 600 l. and if she should have the 500 l. in question also she would have a greater share out of the Estate Arrears of Annuity decreed to be paid and also a portion of 500 l. upon the Defendants owning it in a Letter than the Defendant This Court upon reading a Letter from the Defendant wherein he owns the 500 l. to be due to the Plaintiff Elizabeth on her Marriage and 20 l. per Annum in the mean time or to that effect declared the Defendant ought to pay the Arrears of the said 20 l. per Annum from the death of the Plaintiffs Father to her Marriage with her first Husband and also the 500 l. with the Interest thereof from the time it was raised out of the profits and decreed the same accordingly Dom. Blois al' contra Blois al' 31 Car. 2. fo 723. THe Bill of the Plaintiff Will. Dame Jane Blois and of Jane her Daughter by Sir William Bloys is viz. that the said Sir William Blois Father of the said Jane the Infant being Seized of Lands by his Will gave all his Real and Personal Estate to the Defendant Dame Elizabeth to the Plaintiff Dame Jane and to the Defendant Mary Brook and Abigal Hodges provided that his Son Charles Blois should have 300 l. per Annum thereof and all his Goods should be equally divided amongst his 4 Children as soon as the said Charles should by a Match raise 9000 l. to be paid to his Sisters and made the four Children Executors and dyed whereby the Plaintiff Dame Jane and the rest of the Executors were Intituled to all the Real and Personal Estate to them and their Heirs as joynt Tenants in Trust nevertheless for the said Elizabeth and Mary and the Infant Plaintiff until the Sum of 9000 l. should be raised
if he were intituled to a Bill of Revivor he could not revive for Costs there being no Decree inrolled This Court allowed the Defendants Demurrer and dismist the Plaintiffs Bill of Revivor Raymond contra Paroch Buttolphs Aldgate in Com. Midd. 32 Car. 2. fo 517. THe Plaintiff being one of the Kings Waiters in the Port of London Priviledge and yet used the Trade of a Common Brewer and executed his said place by a Deputy The Defendants insist He is not to be exempted from bearing the Office of Overseer of the poor in the Parish The Plaintiff insists That the Kings Officers who serve his Majesty in Relation to his Revenue ought to be exempted from Parish Offices though they executed their places by Deputy and use an other Trade they being still liable to answer any misdemeaner committed by their Deputies and if their Deputies should be absent at any time they are bound to execute the same themselves which often falls out and Presidents of this Nature have often been found and hopes this Court will not take away any the priviledges such Officers ought to enjoy in right of their Offices and that a Supersedeas of priviledge be allowed the Plaintiff and his Writ of priviledge stand The Defendants insist That the Plaintiff driving a Trade of a Common Brewer and getting Money in the Parish he ought to bear the Offices of the Parish notwithstanding his said Office and if any Priviledge were due it ought to be granted by the Court of Exchequer and not by this Court This Court declared The Kings Officer priviledge from Parish Offices tho' he drive a Trade in the Parish That the Kings Officers ought to have the benefit of their priviledge and the execution thereof by a Deputy nor his dealing in another Trade should not in any sort be prejudicial to him he being to answer for any neglect or misdemeanour committed by his Deputy for that it is not reasonable that the Kings Servants or Officers should have nothing else to subsist on Such priviledge grantable out of Chancery as well as Exchequer but their immediate Services or Places under his Majesty and take no other imployment on them and although a priviledge of that nature be grantable in the Exchequer a Writ of priviledge under the great Seal was and ought to be taken in all respects as effectual and therefore allowed the Plaintiff his priviledge Dominus Bruce contra Gape 32 Car. 2. fo 723. THe question in this case is Deed. Will. Revocation whether the Mannour of Mudghill is within the devise of the Duke of Somerset by his Will in August 1657. of the Residue of the Estate unsold for the benefit of his three Daughters and the Lady Bruce his Grand-Child or whether it belongs to the Lady Bruce only as Heir at Law and whether the same be liable and comprehended in the Trust together with other Manours and Lands to Satisfie the 19100 l. Debts only or is subject with the other Lands in the said Deed and Will for Satisfaction of all the debts of the said Duke William The Case is viz. that the Plaintiff the Lady Elizabeth Wife of the Lord Bruce is Grand child and Heir of William late Duke of Somerset and Sister and next Heir of William also late Duke of Somerset who was the only Son of Henry Lord Beauchamp the Eldest Son of William Duke of Somerset the Grandfather which said Duke William the Grandfather did by deed the 13 Nov. 1652. Convey to the Lord Seymour Sir Olando Bridgman c. and their Heirs the Mannour and Lands in Trust for payment of Moneys to the Lord John Seymour and the Lady Jane Seymour Then upon further Trust to pay Debts amounting to 19100 l. and after in Trust for raising 10000 l. for the Lord John Seymour and 6000 l. for the Lady Jane Seymour and Trustees to account yearly to the right and next Heir of the said Duke with a power of Revocation in the said deed as to all but the said 19100 l. debts and that the said Duke William 19th of April 1654. as to a further provision for the payment of the Debts by deed conveyed to the Earl of Winchelsea and the Defendant Gape and others and their Heirs the Lands in Wilts and Somerset worth 30000 l. and sufficient to pay all his Debts to himself for life and after for payment of Annuities and after his death then to the use of the last Trustees and their Heirs upon special Trust that they should lease out the premisses and with the Mony thereby raised and otherwise with the profits pay all such Debts for which the Plaintiff stood ingaged for the said Duke and that the overplus of the said Mony and Profits to be paid and the Lands unsold to be conveyed to the right Heirs of the said Duke wherein was a power reserved in the said Duke by deed or Will to revoke the said Uses or Trust That the said Duke by deed the 20 of April 1654. reciting that the Lord Beauchamp the Eldest Son died since the deed of the 13 of November 1652. and had left only one Son and the Plaintiff Lady Bruce and that the Lady Bruce was left unprovided for and reciting the deed of the 19 of April 1654. made an Additional provision for the payment of his debts which made the Lands the deed of 1652. of a greater value than would satisfie the said Trust and therefore appointed the last Trustees in the deed of 1652. should out of the Money to be raised by Sail of those Land and the profits thereof pay the Plaintiff Elizabeth Lady Bruce 100 l. per Annum till her Age of 17 and after 300 l. per Annum and then after the debts in the deed of 1652. and Portions to the Lord John and Lady Jane Seymour then to pay Elizabeth the the Lady Bruce 6000 l. portion also with power of Revocation That afterwards the said Duke by Will 15 of August 1657. having as aforesaid secured the said 19100 l. debts devised to his Son the Lord John Seymour and the Heirs Males of his Body the said Mannour of Mudghill and because the Lady Ann Beauchamp his Sister in Law had the same as part of her Joynture and the same was Leased out for the life of Pleydall his Will was that till the same fell in possessision to the Lord Seymour the Trustees in the deed of 1652. should pay him maintenance and they to convey to him when they thought fit and by the said Will taking notice of the deed in 1652. and of the 19 of April 1654. and also of his power of Revocation appointed and declared the Trusts in those deeds for his Grandson William Lord Beauchamp and the Plaintiff the Lady Elizabeth Bruce or for the benefit of his Right Heirs should cease and the same was thereby revoked and appointed the Trustees in those deeds to convey the said premisses to the Lady Frances his Wife and the Earl of
and determined by his death and therefore ought not to be Revived against the Defendant his Heirs nor is his Real Estate in the hands of his Heir chargeable with the Personal duty or Decree for a Personal duty The Plaintiff insisted This is a Case of Extremity being on the behalf of a Charity and the Defendant endeavours to deprive the Plaintiff of 2000 l. given for the purchasing a 100 l. per Annum for Maintenance of two Fellows of a Colledge His Lordship declared That the Decree being for a personal Duty ought not to be revived against the Defendant as Heir and allowed the Demurrer and dismist the Bill Domina Dacres contra Chute 34 Car. 2. fo 861. THe matter controverted is touching Costs Costs the Plaintiff had a Decree against the Defendants Father deceased and that the Plaintiff should have her Costs of that Suit and the said Cost being taxed they became part of that Decree as much as if they had been named in the Decree in certainty The Defendant insisted That upon the first hearing Costs were only reserved till after Report and upon hearing Exceptions to that Report nothing was said touching Costs but in the Order of confirming the last Report in that Cause Costs are directed to be taxed but the Defendants Father by name was to pay them and by the Decree as it is inrolled the Reversion of the Lands in question was directed to stand charged with the Debts and Damages but not with the Costs and the Costs were given as a personal thing and died with the Defendants said Father and cannot affect the said Estate which was the Grandfathers and the Plaintiff could not have revived her Suit for the Costs alone This Court declared A Suit cannot be revived for Costs alone where no duty is decreed That tho' it may be true that a Suit cannot be revived for Costs alone where there is no duty decreed because it is the Latches of the party not to get them taxed where there is nothing else in demand Yet when there is a duty decreed and Costs awarded by the same Decree which is signed and inrolled in the life of the party it would be unreasonable that by the Defendants delaying the Account the Costs should be lost which could not properly be taxed till the final Decree and when the charge of Suit is at an end And this Court further declared That the Costs when taxed may be recovered out of the Assets as in the Case of Heirs and Executors at the Common Law and this Court looks upon the wording of the Decree in that manner to proceed from the difference between the Debt and Costs the Debt not being chargable upon the person at all and the Costs chargable upon the person as well as the Assets and it were unjust to expound the Decree by charging the person to discharge the Assets from payment of Costs to which they are naturally chargable unless they have been paid by the Defendants Father This Court therefore thought fit Costs from their time of being Taxed to carry Interest and shall charge and be recovered out of the Assets that the Costs from the time that they were taxed should carry Interest and charge the Assets by discent and ordered the Account to be taken by the Master accordingly Windham contra Jennings 34 Car. 2. fo 776. THat Sir George Crook Mortgaged Lands in 28 Car. 2. Mortgage for 2000 l. before which time the Mortgagor borrowed of him that was after the Mortgagee 300 l. which was agreed to be secured by the said Morgage both sums must be paid upon the Redemption to the Defendant for 2000 l. and died and the Plaintiff being his Heir prays a Redemption But the Defendant insists That the said Sir George Crook before the Mortgage borrowed of the Defendant 300 l. on Bond viz. in 1672 and the Defendant insists it was agreed to be secured also by the said Mortgage but the Plaintiff is not willing to pay that only will redeem the Mortgage This Court decreed the Plaintiff to pay to the Defendant both the 2000 l. and the 300 l. and then the Plaintiff to redeem Noell al' contra Robinson 34 Car. 2. fo 168 178. THe Case being viz. That Sir Martin Noel deceased Father of the Plaintiff Bill to answer to Devisees being seised in Fee of a moyety of a Plantation in the Barbados called Horn hall with the appurtenances and being legally intituled by the Laws and Customs of the said Island to dispose thereof by his Will in writing devised the same unto the Plaintiffs Nathaniel Grace Elizabeth and one Theodorus Noell and Sir Martin by his Will appointed the Defendant Robinson to supply the said Plantation with all necessaries during the Minorities of the Plaintiffs and to receive the profits in trust for the Plaintiffs and for his care therein gives him an allowance and made his Son Martin Noell and Theodorus Noell deceased and the Defendant Robinson his Executors and the Defendant Robinson proved the Will and took on him the Execution thereof and management of the Plantation and assented to the Legacy and Bequests of the Plaintiffs and in performance of such Trust and Assent leased the premisses to one John Worsam for 20 years at 20000 l. weight of Sugars Rent per Annum in the Trust for the Plaintiffs the Devisees and since have conveyed away the same to one Falkner and others to defeat the Plaintiffs so the Bill is to call the Defendant Robinson and Falkner to Account for the profits of the premisses and to convey their Interest to the Plaintiffs The Defendants insists That by the Custom of the said Island of Barbado's where the said premisses are the said Sir Martin had not power to make such Devise of the premisses to the Plaintiffs he being then much indebted to several persons and the said Defendant Robinson had paid several debts for him and insists Thar the said Lease made to Worsam was done without due consideration and not with any intent thereby to assent to the Legacy to the Plaintiffs and deprive the Creditors of their just debts or in any sort to exempt the Estate there from nor had no reason so to do he being bound with the Testator in several Securities to several persons in several sums of Mony and imployed all the profits he received as also 500 and odd pounds for Worsams Lease for the payment of Sir Martins debts amounting to 30000 l. and so the Testators Estate ought to pay debts and not to be subject to his Will and the said Defendant believing the premisses to be as Lands of Inheritance made the said Lease to Worsam a Creditor of Sir Martins but is since advised it is a Chattel and lyable to the payment of his debts But the Plaintiffs insisted That by the said Lease to Worsam and reservation of the Rent thereon to himself in Trust for the Plaintiffs he had placed the Estate in such manner that
the same could never by any subsequent Act come into the Administration of the Estate of Sir Martin What Act amounts to an Assent of a Legacy and that every Act of the Defendant Robinson was a plain Assent to the Legacy to the Plaintiffs and it is plain the premisses were devisable and so the Plaintiffs Title plain and undoubted and the Plaintiffs ought to have a Decree against the Defendant to Account to them for the said Estate and ought to have the benefit of the said Lease The Defendant further insisted That by such imprudent Act as aforesaid he ought not to be Devested of the Estate but it ought to go to pay Sir Martins debts This Court declared That by the said Clause in the Lease to Worsam the Defendant had Assented to the Plaintiffs Legacies given them by the Will of their Father and that the Devise by the Will was a good Devise Devise of a Plantation in Barbados and that the premisses did well pass thereby and that the said Act of the Defendant Robinson being voluntary had put the Estate out of the power of the Creditors of Sir Martin or out of the power of any Administrator de bonis non of him Decree the Plaintiffs to have the benefit and the Defendants to assign and decreed the Plaintiffs to have the benefit of the premisses and of the Lease to Worsam and the Defendants to Assign their Interests to the Plaintiffs accordingly But the said Defendant desiring a re-hearing of the Cause which was on the 20th of Nov. 1682. when the Defendant insisted That the said Lease could not be an Assent for that the Defendant Robinson then claimed the premisses not as Executor or otherwise than only as Trustee for the Devisees whose Inheritance he then took the same to be and not as personal Estate upon which and other grounds the Defendant insists the said Rent and Reversion of the premisses expectant on the Determination of the Lease was and ought to be of the Testators personal Estate and to go in the ordinary course of Administration and to an Administrator de bonis non and be lyable to debts His Lordship notwithstanding what was now urged by the Defendant declared Decree by Finch he saw no cause to alter the former Decree but confirmed the same This Decree reversed by the Lord Keeper North The Decree reversed by North. and in 1683 fo 168. he heard this Cause upon the whole merits and ordered an Account And in 1686 Finch his Decree confined by Jefferys The Lord Chancellor Jefferys reheard this Cause upon the Merits and confirmed my Lord Chancellor Finch's Decree and discharged my Lord North's Decree Benson contra Bellasis 34 Car. 2. fo 848. THis Cause having received a hearing before the Lord Chancellor Nottingham 11 July 33 Car. 2. who made a Decree for excluding the Defendant Dame Dorothy Administratrix of Robert Benson the Plaintiffs Father from having any part of his personal Estate and the said Cause being heard 10 July 35 Car. 2. before the Lord Keeper North who decreed the said Defendant Dame Dorothy to retain to her own use one third part of the said personal Estate of the said Robert Benson and the said Cause being again reheard this day by the Lord Chancellor Jefferys The Case being that the said Robert Benson on his Marriage with the Defendant Dame Dorothy for the setling of a Joynture on the said Dorothy in full of all Joyntures Dowers and Thirds which she might claim out of his real and personal Estate conveyed Lands to the use of himself for life and after to the said Dorothy for life in full of all Joynturs c. as is aforesaid with this Proviso Settlement on Marriage That if the said Dorothy should after the death of the said Robert Benson have or claim to have or should recover any other part of the Lands or Tenements or any part of the personal Estate of the said Robert by the Custom of the Province of York or by any other means whatever other than what the said Robert Benson should give Bequeath or Settle upon or to her That then the Feoffees therein named should be seised of all the premisses setled in use upon the said Dorothy to the use of Sir Henry Thompson and Mr. Grayham their Executors Administrators and Assigns for 60 years to commence from the death of the said Robert if the said Dorothy should so long live Upon Special Trust that the said Thomson and Grayham should receive the profits of the premisses limited in the Joynture and they should dispose thereof to such persons and their uses as should be damnified by the said Dorothys perception of the profits of any other Lands of the said Robert or the taking or recovery of any part of the personal Estate other than what should be given or bequeathed until the respective values of the Profits or values of such Personal Estate should be fully satisfied and the residue of the said Profits to remain to the said Dorothy That the said Robert dying intestate and the said Dorothy Administring at York and in the Prerogative Court of Canterbury as Guardian to the Plaintiff Robert possessed the Real and Personal Estate prerends a Right to some part of the Personal Estate by the said Administration notwithstanding the said Marriage agreement The Lord Chancellor Nottingham declared the said Dorothy was bound by the said Marriage Agreement Marriage Agreement provided if the Wise claim any of the personal Estate by the Custom of the Province of York then the Estate to other use Decreed she is bound by the said Settlement and ought not to claim any part of the personal Estate by Finch and the Administration ought to have been granted to her and that however the same ought not any ways to avail her for that it would be contrary to the said Settlement and Agreement and that the said Dorothy ought not to claim any part of the Real Estate other than what was Setled on her by the said deed or any of the Personal Estate and decreed accordingly But the Defendant Dorothy insisted Reversed by North. That the Lord Keeper North had adjudged one third of the Personal Estate to belong to the Defendant by virtue of the said Administration and was an accrewing Right not barred by the Marriage Agreement The Lord Chancellor Jefferies Confirmed by Jeffreys on reading the said Marriage Settlement and the said two former Orders declared That the said Order for the Excluding of the said Defendant Dorothy from having any part of the Personal Estate was a just Order and ought to stand and be pursued and that the said Order of the Lord Keeper Norths before mentioned ought to be set aside and Decreed accordingly Stapleton contra Dom. Sherwood 34 Car. 2. fo 732. THat Sir Phillip Stapleton the Plain tiffs Father Bill for Distribution of the personal Estate on his Marriage with his first Wife Setled
the Mannor of Warter in the County of York whereby he made himself but Tenant for life the Inheritance vesting in the Plaintiff his Eldest Son and Sir Phillip had Issue by his first Wife the Plaintiff his Eldest Son Robert his Second Son and Mary who Marryed the other Plaintiff the Lord Merrion That Sir Phillip in 1647. by Will devised to his said Son Robert a Rent charge of 40 l. per Annum to be issuing out of the said Mannour and afterwards the said Robert died and the Defendant Dorothy his Relict Administred to the said Roberts Personal Estate so the Plaintiffs Bill is to have Distribution of his Personal Estate The Defendant Dorothy insisted That she as Widow of her said late Husband Robert by the Custom of York is Entituled to a Moiety of the said Personal Estate and by the late Act for setling Intestates Estates the said Defendant is Intituled to the other Moiety and insisted That Sir Phillip having Issue by several Venters which are yet alive or their Representatives they are equally intituled with the Plaintiff Stapleton This Court declared a Distribution of the said Personal Estate according to Law to be made amongst the Plaintiff Stapleton and the Child of the Lord Merrion as also the Brothers and Sisters of the said Robert as well as those of the half-Blood as those of the whole Blood and their respective Lineal Representatives who are to be called into the account And as to the point whether the Lord Merrion and his Child have the Right to his Wives share of the Estate a Case is to be made That the Master to whom the account of the Intestates Personal Estate was referred 36 Car. 2. fo 375. hath allowed to the Defendant Dorothy the Administratrix a Moiety of the said Estate of the said Intestates dying without Issue and hath Distributed the other Moiety amongst the Intestates Kindred Brothers and Sisters Whereas by the Custom of the Province of York she is not only to have a clear Moiety of the Personal Estate of her said Husband so dying without Issue after Debts c. but by the late Statute for setling Intestates Estates she is to have a Moiety of the other Moiety The Plaintiff insists That there was no Colour for the Defendant to have a Moiety of the remaining Moiety the said Statute leaving the Custom as it was without Addition Diminution or Inlargement but the Widow was to have only a Moiety and the other Moiety to be Distributed amongst the next of Kin. This Court for the further satisfaction The Custom of the Province of York Certified by the Arch-Bishop ordered the Lord Arch-Bishop of the Province of York to testifie when a man dies Intestate within that Province without Issue after his Debts c. paid how the Residue is to be Distributed by the Custom of the Province The Bishop certified That in such Cases as aforesaid the Widow of the Intestate by the Custom of the Province had usually allotted to her one Moiety of the clear Personal Estate and the other Moiety hath been Distributed amongst the next of Kin to the Intestate and that had been the constant practice of the Ecclesiastical Courts at York The Plaintiff insisted That the Custom of that Province is excepted out of the Act of Parliament and if it were within the Act it ought to have the more favourable construction on their part because it was made in favour of them and not of the Widow and Administratrix who before the said Act usually went away with the whole Estate unless more particular instances prevented This Court declared The Widow by the Custom of the Province of York shall have the Moiety but not another Moiety by the Act of Settlement of Intestates Estates They could not expound the Act to give the Defendant more than a Moiety that being the proportion allotted to her by the Custom and also by the Act if it had not been a Case within the Custom which Custom is confirmed because it appoints the same kind of Distribution with the Act and it would be a strein to give her more than a Moiety part by the Custom and part by the Act and refers to the Masters Report made in this Cause Coventry contra Hall 34 Car. 2. fo 330. THat Sir Thomas Thynn Bill for mean profits Father both of Sir Henry Frenderick Thynn and Sir James Thynn conveyed on Sir Henry Frenderick and his Heirs Males of his Body expectant after the decease of him the said Sir Thomas the Mannour of Hempsford and other Lands and soon after dyed and the said Sir Henry Frederick possessed the said premisses but Sir James Thynn pretending the said Conveyance was Defective Sir Henry Frederick in Oct. 1650. obtained a decree that the said Sir Henry Frederick and the Heirs of his Body should enjoy the said premisses against the said Sir James Thynn and his Heirs according to the intent of the said Settlement That Sir James Thynn insisting That Sir Thomas was but Tenant for life and not Seized in Fee of the premisses having suffered Recoveries so that the Freehold was in the said Sir James or some other for his use by virtue whereof he received the profits which Sir Henry Frederick ought to have received That Sir Henry not being able to recover the said mean profits at Law by reason of the defect in the said Conveyance which is now supplyed and setled by the said decree and Act of Parliament so that the said Sir Henry hath the right to the said profits and writings So the Bill is to be relieved for the same and to have an account thereof The Defendant insisted That there ought to be no account of the mean profits the demand thereof being very old and is grounded on a decree in a former Cause whereby a defect in a Conveyance under which the Plaintiff claims was supplyed and there is no provision in the said decree for mean profits though the Bill originally was such as this Court might have decreed mean profits and when the Decree was made it was not granted nor any farther relief than only possession and the possession hath been so unconstantly in any one person that it is very difficult especially after so long time against an Executor that is no way privy to the accounts of the Testator The Plaintiff insisted That though the demand on the decree is Antient and a prosecution hath been for the same ever since and the Right being determined the Plaintiff ought to have an account of the mean profits as the Consequences of that Right though the Original Bill might pray an account and the decree be silent as to that point This Court declared That considering this case as if there were no Act of Parliament the Plaintiff hath a right to demand an account upon an equity that ariseth on the Marriage Agreement and Settlement made in pursuance thereof notwithstanding the length of time for that the Plaintiff
Dame Ann Daughter of Sir Robert Cann Articles of Agreement were executed and in pursuance of the Articles a Settlement of part of the premisses was made upon the Defendant Dame Ann for her Joynture and in the said Settlement there was a Covenant on the said Sir Robert Gounings part to lay out as much Mony in the Purchase of Lands as would amount to 110 l. per Annum to be setled on the said Dame Ann for her life remainder to the Heirs of the said Sir Robert Gouning which was intended to be an Inlargement of his Real Estate and to be for the benefit of his Heir but the said Defendant Dame Ann refuseth since the death of Sir Robert Gouning her Husband to whom she is Administratrix to execute the said Covenant in Specie by Purchasing of Lands of 110 l. per Annum to be setled according to the Covenant as aforesaid and which ought to come to the Plaintiffs as Coheirs of the said Sir Robert Gouning The Defendants insisting Covenant to settle Lands of 120 l per Annum to the said Remainder to the Heirs of the Husband Wife Administratrix refuseth the Bill was dismist that the said Covenant was made in favour of the said Dame Ann only and not for the Plaintiffs the Heirs benefit and the Defendant also as Administratrix claims Title to the Mortgaged Lands at Siston insisting that the same are a Chattel Lease for a long Term of years which by Assignment came to Mary Gouning Sister of the said Sir Robert and that she afterwards procured a Release of the Equity of Redemption for 950 l. including therein the Mony due upon the said Mortgage and that she purchased the Reversion in Fee thereof in the name of her Brother Sir Robert which she did on purpose to keep the Lease distinct and separate and that it ought not to go to the Heir but to the Administratrix But the Plaintiff insists That the said Lease ought to attend the Inheritance which Mary Gouning to whom the Plaintiffs are Heirs bought in for that purpose in the name of the said Sir Robert her Brother and that the same ought to come to the Plaintiffs as other the Real Estate of the said Sir Roberts This Court declared Lease to attend the Inheritance as to the Lands at Siston it was an Inheritance and ought to go to the Heirs at Law and decreed accordingly And as touching the Covenant for Purchasing Lands of 110 l. per Annum this Court dismist the Bill Eyre contra Hastings 35 Car. 2. fo 590. THat Henry Eyre deceased Relief upon a Mortgage the Plaintiffs Brother being seized of Lands 22 Car. 2. Mortgaged the same for 200 l. to Giles Eyre the Plaintiffs Son and the said Henry Eyre Covenanted to pay the Mortgage money and gave Bond for performance of the Covenants and the said Henry dying without Issue and Intestate the premisses descended on the Plaintiff as Brother and Heir and Administration was granted to Dorothy his Relict who paid the Mortgage money and Interest then due to the said Giles Eyre the Mortgagee in relief of the Plaintiff who ought to enjoy the premisses discharged of the Mortgage money and the said Dorothy made her Will and the Defendant Ralph Hastings Senior her Executor hath got the Mortgaged premisses Assigned to him and insists He ought to hold the same till the 200 l. and interest be paid him by the Plaintiff That the Defendant Ralph Junior an Infant claims the premisses by the Will of the said Dorothy who devised the same to him To be relieved against them and the Plaintiff to have the Inheritance of the premisses discharged from the payment of the Mortgage money and Interest and the Bond delivered up is the Bill The Defendant Hastings Senior insists Whether Mortgage Money be paid by the Administrator in relief of the Heir That the said Dorothy paid the said Mortgage money and interest but not in relief of or for the benefit of the Plaintiff and thereupon the premisses were Assigned to the said Hastings Senior in Trust for the said Dorothy who had an equitable Right to all her Husbands Estate and Dorothy devised the said premisses to Hastings Junior her Godson The Master of the Rolls decreed the Plaintiff to enjoy the premisses against the Defendant This Cause was Re-heard by the Lord Keeper and this Defendant the Infant insists That he is much prejudiced by the Decree for that thereby he is stript of the Estate in question devised to him by the said Dorothy's Will without payment of the money and interest there being no Covenant in the said Mortgage Deed for payment of the money and interest or any Bond but the Plaintiffs Counsel insisted That Dorothy paid the Mortgage money and interest for the Plaintiffs benefit The Defendant insisted that Dorothy declared the Mortgage money and interest was paid in relief of the Heir at Law This Court declared If there be no Covenant in the Mortgage Deed for payment of the Money the Administrator is not obliged to discharge it That in Case there was not any Covenant in the Deed for payment of the Mortgage money and Interest the said Dorothy the Administratrix was not obliged to discharge the same Massingberd contra Ash 35 Car. 2. fo 466. THis Court ordered a Case to be Stated in this Cause Executory Devises upon the Deed only by way of Executory Devise to bring the question arising into Determination as if in a Will and in such method as if the Trust and Limitations in the deed had been Limited and Created by the Will upon which Case the Judges of the Common Pleas were to Certifie their Opinions Whether the Remainder of a Residuary Estate of the two Leases or Terms in question limited to the Plaintiff were a good Devise or Limitation or not and the said Judges were also to be attended with another Case made upon both Deed and Will and they are to Certifie what the Law is in Case of Executory Devise as also what is fit to be Decreed in Equity The Case on the Deed only by way of Executory Devise is viz. Two several Terms one for 500 and the other for 99 years by Will dated the 1st of November 1679. and devised in these words viz. That Sir Henry Massingberd and his Assigns shall take the Rents Issues and Profits for and during the Term of his life And that after his Decease Elizabeth his Wife should receive the Rents Issues and Profits during her life And after the Decease of the said Sir Henry and Elizabeth the Eldest Son of the said Sir Henry begotten upon the Body of the said Elizabeth shall take the Profits of the said Lands till Age and then to have the whole Term to him his Executors and Administrators And if such Eldest Son happen to dye before he comes of Age then the second Son of their two Bodies shall take the profits of the said premisses till he come of Age
to be Re-heard before the Lord Keeper Bridgman who declared He saw no cause to alter the said former Decree and so confirmed it Brabant contra Perne 21 Car. 2. fo 146 344. DEpositions of Witnesses under the Hand of a Six-Clerk then in a Cause between Butt and Perne about Thirty years since the Plaintiff in this Cause prayed the same might be recorded the Record of the Original Depositions in that Cause being lost But the Defendant Pernes's Counsel insisted Copies of Depositions not to be recorded or exemplified it would be of dangerous consequence and president to suffer Copies of Depositions to be Recorded and used as Evidence in case of Title of Land there being no Cause in Court or parties to the said former Suit there being since the dismission of the said former Suit two Trials brought by the said Butt concerning the said things in question upon both which two Nonsuits passed against the said Butts Title the Witnesses which were examined in this Court being all then living and two Verdicts upon full Evidence on both sides and one other Verdict since 1664. hath been found for the Defendant's Title against the now Plaintiffs Title and some of the Witnesses at the said Trial have sworn otherwise than is expressed in those Copies of the Depositions which the Plaintiff would have now recorded and exemplified This Court would not allow the said Copies of the Depositions to be recorded or exemplified but they being before Ordered so to be by the Master of the Rolls it is Ordered they shall be vacated and made void and cancelled and taken off the File Alexander contra Alexander 21 Car. 2 fo 324. THe Suit is Assets to discover the Estate of Richard Alexander deceased which is come to the Defendants hands to satisfy a debt of 300 l. due to the Plaintiff from the said Richard Alexander The Defendant insisted that the Plaintiff ought not to have Relief in this Court in regard the Assets in the Defendants hands were legal Assets and nothing appeared but that the Plaintiff had her proper remedy at Law having not proved any thing more to be in the Defendants hands than was confessed in the Defendant's Answer But the Plaintiff insisted Bill to discover Affets That this Court hath directed Accounts in cases of this nature to avoid circuity of Action and further charge and trouble of Suits and that this Court being possest of the Cause and the parties at Issue on Proofs the same was as proper for this Court as at Common Law This Court ordered Presidents to be searched where this Court hath directed Accounts and given Relief in this Case and the Cause coming to be heard on the Presidents and Merits thereof and the Plaintiffs insisted that there is sufficient Assets of the said Richard Alexander come to the Defendants hands to satisfie the Plaintiffs debt with Overplus This Court decreed the Defendant to come to an Account for the Estate of one Blackhall unadministred Yate contra Hooke 21 Car. 2. fo 939. THat John Hele on the 23d Dec. 1654. Mortgage by demise and re-demise for 2000 l. mortgaged Longs Court and other Lands to Jasper Edwards his Executors Administrators and Assigns for 99 years and the said Edwards on the 25th of Dec. 1654. re-demised the same to the said John Hele for 98 years at a Pepper Corn Rent on Condition That if the said John Hele his Heirs Executors Administrators and Assigns did not pay to the said Jasper Edwards his Executors Administrators and Assigns 2150 l. at a certain day therein mentioned that then the said Re-demise to be void and Covenanted for him his Heirs Executors and Administrators to pay the same accordingly and in Hillary Term 1654. the said John Hele acknowledged a Judgment of 4000 l. to the said Jasper Edwards for the performance of the Covenants in the said Demise and Re-demise and after in 1656. the said John Hele for 500 l. mortgaged the said premisses to Joseph Jackson his Executors Administrators and Assigns reciting the said Mortgage to Jasper Edwards to have and to hold the said premisses to the said Joseph Jackson his Executors Administrators and Assigns for the residue of the said term demised to the said Jasper Edwards and to hold the Reversion to the said Joseph Jackson his Heirs and Assigns for the use of the said Joseph Jackson his Heirs and Assigns for ever on Condition That if the said John Hele his Executors c. paid to the said Jackson his Executors c. 515 l. in June next following then the said Deed of Mortgage to be void and the said John Hele to Re-enter as in his former Estate and the said John Hele Covenanted with the said Jackson his Heirs c. to pay the said 515 l. and for further confirmation granted to the said Jackson all his Equity of Redemption and afterwards the said Edwards and Hele for 2000 l. paid by Jackson to the said Edwards the said Edwards and Hele assigned the said premisses to Jackson with Condition or Proviso That if the said Hele his Heirs or Executors should pay to the said Jackson his Executors c. 2060 l. then the said demise from Hele to Edwards to be void and afterwards in 1657. Edwards assigned the said Judgment of 4000 l. to the said Jackson his Executors c. and the said Hele in 1660. died leaving the said Defendant Sir Thomas Hooke his Nephew and Heir And the said Jackson having made his Will and devised to his Daughter Sarah Wife of the Defendant Alford 2000 l. and to the said Joseph Jackson his Son 2000 l. with his Lands Tenements c. and to the Heirs of his Body and for want of Issue then the one half of his Lands so given to his Daughter Ann Yate and the other half to his Daughter Earle and the Issue of their Bodies equally and that in case his personal Estate fell short then every Legatee to abate in proportion to make it up the one half and the other half his Son Joseph should make good out of what he had bequeathed to him and made the Defendants Yate Earle and Aldworth Executors and if his Estate should amount to more than he had bestowed then that the said Joseph and Sarah should have the one half of it and his Son Yate and his Wife and his Son Earle and his Wife and what Child he should have living at his decease the other half Afterwards the said Joseph Jackson having in his Account accompted the said Mortgage Mony as part of his personal Estate in 1661 died leaving the said Joseph Jackson his Heir that no Entry had been made either by the Testator in his life time or by the said Joseph his Son and Heir upon the said mortgaged premisses but the said John Hele and Sir Thomas Hooke had received all the Rents and Profits So as the Question was Whether the said Mortgage Moneys are due and payable to the Heir or Executor
to be defalked out of 1500 l. because of Marriage against Consent That the Plaintiffs said Marriage was without the Defendants privity and against his consent and that therefore the Plaintiff Ann cannot have the said 500 l. But decreed the Defendant to have the same with Interest from the Plaintiffs Marriage Wall contra Buckley 26 Car. 2. fo 178. THat the Plaintiffs Father Guardian takes Bond in his own Name for Arrears of Rent by this the Guardian hath made it his own Debt as his Guardian takes Bond for 100 l. Arrears of Rent due from the Tenants and takes it in his own Name This Court is of Opinion That the Plaintiffs Father hath by that means made it his own debt Stickland contra Garnet al 26 Car. 2. fo 340. THe Bill is for a Legacy of 20 l. Bill for a Legacy given to the Plaintiffs late Husband by the Will of George Coker Deceased to be raised and paid upon the Sale of Customary Lands mentioned in the said Will which said Lands are by the Will Devised by the said Coker to Jennet his Wife for her Life with remainder over to the said Defendants in Trust that after the Death of Jennet the said Trustees should Sell the same and with the Money thereby Raised to pay the Legacies in the Will and the Trustees to be Accountable over for the Surplus to other Persons and the said John Stickland the Legatee Dying before the said Jennet and before the time the said Lands out of which the said Legacy was to be Raised were appointed to be Sold. The Defendants Crave Judgment of the Court Legatee dyes before the time of payment of the Legacy yet payable to his next of Kin. whether the said Legacy of 20 l. was due to the Plaintiff or Determined by the Death of the said John Stickland This Court was of Opinion that the 20 l. did notwithstanding the Death of the said John Stickland continue payable to the Plaintiff Brond contra Gipps 26 Car. 2. fo 763. THis Court declared Lands Decreed to be Sold to supply the Personal Estate that the Plaintiffs Legacies ought to be paid out of the whole Estate of the Testator viz. out of the Personal Estate so far as that will extend and if that will not satisfie the same then the Testators Mannors and Lands undivided and unsold shall in the next place come in Aid of the Personal Estate for Satisfaction thereof and if that be not sufficient then the whole Mannors Lands and Tenements though Sold and Divided shall notwithstanding such Sale and Division come in supply thereof in proportion to be Refunded and paid by the Person or Persons in whose Hands soever the same shall be found Bowyer al' contra Bird 26 Car. 2. fo 769. THe Suit is to have an Account of a Legacy of 500 l. given by George Dale Father of the Plaintiff Ann to George his Son also Deceased to whom the Plaintiff Ann was Administatrix and to have an Account of the Residuary Estate of George the Father after his Debts and Legacies paid the Bill Charging that George the Father made his Will in Writing and thereof his Son Thurston Dale and one Dakin Executors and upon Publishing of his Will Declared Dakin only to be Executor in Trust for his Children and to take no Benefit thereby but the Estate to go to the Children and Dyed leaving the Plaintiff Ann and three Sons viz. the said Thurston George and Robert Dale all Deceased and that Thurston made the said Dakins his Sole Executor and the Plaintiff Ann is the only Surviving Child of the said George Dale the Father and claims the said 500 l. and the Residuary Estate This Court it appearing by the said Will Estate Decreed to the Residuary Legatee and not to the Administrator that the said Thurston who was Named Executor without any Trust was Residuary Legatee of the said George Dale his Father who had given by the said Will considerable Legacies to every one of his Children was fully satisfied the Plaintiffs were not intitled to the said 500 l. nor the Residuary Estate but that the said Thurston as Residuary Legatee was well intituled to the Residue of the said Estate and that the said Trust in Dakins ought to be Construed as is most Consistent with the Will in Writing and Dismist the Plaintiffs Bill Dom. Leech contra Leech 26 Car. 2. fo 369. THis Court declared A Deed tho' Cancelled yet good and the Estate shall not be Divested out of the Trustees tho' the Deed appeared Cancelled yet it was a good Deed and that the Cancelling thereof did not Devest the Estate of the Trustees therein named and that the Trust thereby Created ought to be performed Feake contra Brandsby 26 Car. 2. fo 74. THat William Crowe by Will Bill for a Legacy Devised to every one of his Servants living with him at the time of his Death 10 l. a piece and that the Plaintiff was Servant to the Testator at his Death so the Plaintiffs Suit is for the 10 l. Legacy The Defendant insists that the Plaintiff was not Servant to the said Crowe at his Death or lived with him as a Servant but the Plaintiff at the Testators Death and long before and after was the Servant of Mary Brandsby the Testators Mother This Court was Satisfied Who shall be said to be a Servant living with the Testator at his Decease that the Plaintiff was a Servant to the Testator and intrusted in his House-keeping and imployed in washing his Linnen and Tended him in his Sickness and therefore Decreed the Defendant the Executor to pay the Plaintiff her 10 l. Legacy Winchcombe contra Winchcomb 26 Car. 2. fo 654. THat in Michaelmas Term 2 Car. 1. John Carter obtained a Judgment against John Winchcomb the Defendants Grandfather of 400 l. upon two several Bonds both Dated 17 June 1623. for the payment of a 100 l. each Bond one payable the 1st of May then next and the other the 1st of May 1625. That the said Carter made Humfrey Coles his Executor and Dyed and the said Humfrey Coles Dyed and his Son John Coles took Administration De bonis non of the said John Carter who produced the Bond payable the 1st of May 1625. whole and uncancelled and thereupon insisted to be a Creditor for the said 400 l. on the said Judgment But the Defendant Winchcomb produced one of the said Bonds Cancelled Judgment upon Bonds of long standing ordered to be paid and insisted that the same was satisfied for that Humfrey Coles 12 Car. 1. had an Elegit returned and Lands delivered by the Sheriff which being near 40 years since the same would not have slept so long had not the said Debt been satisfied one Bond being Cancelled And the said Coles insisted that the said Carter was kept out by prior Incumbrances and that he Exhibited a Bill against John Winchcomb the Father to discover the same who by
said debt nevertheless that debt ought to be made good out of the said Pincheons Estate whatever and decreed accordingly Ramsden contra Farmer al' 28 Car. 2. fo 516. THat Simon Carill was seised in Fee of Lands Lands conveyed to Trustees for payment of Debt conveyed the same to Trustees to sell and dispose thereof for performance of his Will who by his Will devised the said premisses to the said Trustees and their Heirs to pay his debts and made Elizabeth his Wife his Executrix who afterwards married Mr. Barnes and the said Trustees with the consent of the said Elizabeth conveyed the premisses to Sir John Carill and others in Trust in the said Will Trust assigned and the said Barnes after died and the said Elizabeth married one Machell and by Deed 22 Car. 1. the said Trustees Carill c. with Elizabeth conveyed the said premisses to the said Machell and his Heirs and in 1646. the said Machell with the like consent conveyed to Duncombe Heath and Baldwin and their Heirs in Trust that they after the said Simons Debts and Legacies paid should convey to the said Elizabeth and her Heirs or to such as she by Deed or Will appoint That the said Elizabeth raised Monies and paid the said Simons Debts and Legacies and performed the said Will and after the said Machell's death Elizabeth by Will 1650. devised all the said premisses to her Son John Carill for life and after his decease to the first Son of the Body of the said Son lawfully begotten or to be begotten and to his Heirs And if her said Son should not have a Son but one or more Daughters then she devised the premisses to the first Daughter of the Body of her said Son and to her Heirs That the said John Carill in the said Elizabeths life time had a Son whose Name was John who died in her life time and soon after Elizabeth died and her said Son John Carill survived her and never had any other Son after Elizabeth Machells death and the said John Carill died and left the Plaintiff Lettice his eldest Daughter and the Defendant Elizabeth his second Daughter and the Defendant Margaret his third Daughter and the said Lettice the Plaintiff claims the premisses as eldest Daughter But the Defendants Elizabeth and Margaret insist They ought to have their equal parts with the Plaintiff Lettice in the premisses and that the said Simon had not power to make such Settlement or Will but say he was only seised for life of the premisses and that Elizabeth Machell joyned in the Settlement at her Son John Carill's Marriage and if there were such a Will of the said Elizabeth Machell yet the said John Carill had a Son named John Carill Construction of the words of a Will who was Born after the death of the said Elizabeth Machell and lived some time after her death without Issue and by the words of the Will the Trust is determined This Court not being satisfied as to the Birth and death of the said John Carill directed a Tryal on this Issue whether John Carill Grandson of Elizabeth Machell dyed during the Life of the said Elizabeth Machell or after her decease That upon a Tryal on the said Issue it was found that the said John Carill the Grandson outlived the said Elizabeth Trusts determined and therefore the Defendants insist that the Trust limited by the Will of the said Elizabeth Machell is fully determined This Court declared they saw no cause to relieve the Plaintiffs Bill in this matter and so dismist the Bill accordingly Salter contra Shadling 28 Car. 2. fo 66. THat Bryan late Lord Bishop of Winton being possest of the Mannor of Pottern by Lease from the Bishop of Salisbury Will. made to Sir Richard Chaworth in Trust for the said late Bishop of Winton by his Will Devised 200 l. per Annum should be paid out of the profits of the said Lease to William Salter the Plaintiffs late Husband his Nephew during his Life and that the Estate in Law in the said Lease should continue in Sir Richard Chaworth during his Life and the Surplusage of the profits he Devised to the said William Salter to whom he also Devised the Lease after Sir Richard Chaworths death and made Sir Richard Chaworth and others Executors who consented to the said Devise and about 16 Car. 2. William Salter made his Will and as to his Interest in Pottern he devised the same to Trustees that they should permit the Plaintiff to receive the profits during her Widdow-hood on Condition she renewed the Term to 21 years Construction upon the words of a Will once in seven years and if the Plaintiff should Marry or dye then he declared the profits of the Premises to go to his two Daughters Ann and Susanna and the Survivor of them and their Heirs and after their Deaths without Heirs of their Bodies then to his right Heirs and Devised all the rest of his Personal Estate should be to his Executors and Trustees for the benefit of his said Daughters and made the Plaintiff and the said Trustees Executors That the said two Daughters are since dead intestate and the Plaintiff being their Administrator is Intituled to the whole Term and Trust of the said Lease of Pottern as Administrator to her said two Daughters according to the said William Salters Will and the true Exposition thereof the same being devised in manner as aforesaid The defendant Charles Cleaver the Infant being Eldest Son and Heir of Dame Briana Cleaver deceased who was one of the Sisters and Coheirs of the said William Salter and the Defendant Stradlings Wife being his Sister and Coheir insist that according to William Salters Will and for that no present interest in Pottern was Devised to his two Daughters but only Contingent possibility of Interest in case the said Plaintiff should Marry or dye neither of which having since hapned and the said Daughters being since dead the Interest and Term in Pottern ought to come to them as Heirs to the said William Salter and not to the Plaintiff as Administratrix to her two Daughters the rather for that they consented to a decree for Sale of Lands which would have come to them as Heirs at Law to preserve Pottern from Sale for the payment of William Salters debts This Court declared that according to William Salters Will and the disposition therein made of Pottern the whole Interest of the said Term and Trust therein was well passed in the Plaintiff and that the Heirs of Salter can have nothing to do therewith nor have any Interest therein and Decreed the Plaintiff to enjoy the same against the Defendants Still contra Lynn al' 28 Car. 2. fo 195. Bill is to be relieved for 123. Acres of Land THat Philip Jacobson Deceased Settlement being possest of a Capital Messuage or Tenement and Lands by Lease from the Crown Dat. 13 Car. 1. for the Term of 60
of the Estate to the Testator Whereto the Plaintiff insisted That the Custom of a Sum certain to be mentioned appeared only by a By-Law called Judd's Law in 5 Ed. 6. the which is no estabiished Law in the City to bind the Right of any and there is a great difference in the By Laws in the City which ought to respect their Government and not bind the Right of any person which is governed by the general Custom of the City and which is paramount to any of their By-laws and by the Custom the Right of a Freemans Child is as much preserved to him as any mans Right by the Common Law of the Kingdom besides the naming of the Sum is no more than in order to the setling the Accounts of the said Estate which may be done before a Master in this Court This Coutt upon Reading several Presidents on both sides declared That the said Certificate was conclusive and that the Plaintiff must be let in for a Customary part of her Fathers Personal Estate and decreed the same accordingly The Defendant was ordered to Account for all the Personal Estate of Bennony Honywood Fo. 598. and the Plaintiff thereout to have her Customary part her Marriage Portion being brought into Hotch potch with the rest of the Personal Estate and the Plaintiff to discover the said Portion on Oath and the Defendant to do the like as to what provision he had The Defendant insists What provision he had was Mony deposited by his said Father in the hands of Mr. Colvile and others to purchase Lands or Houses in or near London in pursuance of Articles between the Defendants said Father and the Defendants Wives Father which were made before the Marriage of the Defendants which Lands and Houses so to be purchased is by the said Articles covenanted to be setled on the Defendant and his Wife for life and for her Joynture Remainder in Tail and was in consideration of the Defendants wives Portion and Houses were purchased therewith in Bennony's life and the Defendant is his Son and Heir And the Defendant insists What Mony is deposited by the Father to purchase Lands in pursuance of Marriage Articles is to be taken as Real and not as a Personal Estate and shall not be brought into Hotch-potch That what was so deposited as aforesaid is to be taken as if the Defendants Father himself had purchased Lands and setled the same to the uses aforefaid and ought not to be accounted a personal Estate of the Defendants Father but as Land This Court declared what was deposited by the Defendants Father to purchase Lands in pursuance of the said Articles is to be taken as Lands and not as personal Estate of the Defendants said Father and also declared what was deposited as aforesaid shall not be brought into Hotch-potch but the Defendant is to discover what he had from his Father upon his said Marriage Prigg contra Clay 32 Car. 2. fo 198. THat John Clay by his Will devised 100 l. Will. to the Plaintiff Philip Prigg Jun. and Deborah Prigg his Sister in manner viz. 50 l. to the said Philip at his Age of 21 years on day of Marriage which should first happen by the Defendants his Executors and in the mean time the whole 100 l. to be secured and improved by his Executors for their use and in case either the said Philip or Deborah should die before payment of their Legacies the Survivor to enjoy the whole 100 l. and if both die before payment of their said Legacies then the Testator decreed the whole 100 l. to his Sister the Plaintiff Elinor their Mother besides 100 l. to her to be paid within 6 Months after his death That the said Deborah Prigg died unmarried and before 21 and before she had received the 50 l. Legacy so that the whole 100 l. became due to the Plaintiff Philip Junior The Defendants insists That Deborah died before the Testator and her Legacy of 50 l. became void This Court was sully satisfied Legacies of 50 l. apiece given to two and if either die before 21 the Survivor to have all One dies before the Testator yet the Survivor decreed to have all though Deborah died before the Testator yet the said Devise of 50 l. to her did not become void and being devised over to her Brother Philip the surviving Legatee it belonged to him according to the devise in the Will the rather for that it being a contingent Remainder and might vest after the death of the Testator so long as there was a Survivor it did not belong to the Executors and for that the Testator who lived for some time afterwards did not alter the devise thereof by his Will nor otherwise dispose thereof in Writing and decreed the Defendants to pay the Plaintiff the two 50 Pounds This Order was confirmed by the Lord Keeper Sanders contra Earle 32 Car. 2. fo 102. THat the Plaintiffs late Husband Daniel Earle Will. or some in Trust for him was at his death seised in Fee and also intituled to the Trust of a long Term of the Mannor upon a Sore and Lands in Com' Nottingham which said long Term was in being and subject to be disposed as she should appoint so that he had full power to settle devise or charge the same by his Will and the said Daniel in consideration of a Marriage with the Plaintiff and 2000 l. Portion he in 1676. by Will devised to the Plaintiff besides a Joynture of 1200 l. and if she were with Child of a Son he gave all his Lands and Tenements to such Son in Tail but for default of such he gave them to the Defendants his Brother and their Heirs and if he had a Daughter he devised to such Daughter 500 l. to be paid when she attained her Age of Sixteen and the same to be secured out of his Lands aforesaid and made his said Brothers Executors That the Plaintiff had no Son but a Daughter who lived some time and is since dead and the Plaintiff is her Administratrix whereby she is intituled to her 500 l. presently The Defendant insists That the Plaintiffs said Husband devised to the Plaintiff 1200 l. and devised to her all her Plate Jewels and Goods and Stock in and about the House at Normanton and made the Plaintiff Executrix till the last day of August after the Will and if she who was then with Child had a Son by that time then she to continue Executrix otherwise the Defendants to be joynt Executors and made such devise to the Daughter and the rest of his personal Estate he devised to his Executrix or Executors That the Plaintiff Margaret having but a Daughter the Defendants proved the Will and are intituled to the Legacies therein to them devised and the refidue of the personal Estate and insists That if the Plaintiff as Administratrix to her Daughter be intituled to the 500 l. yet she is not to receive it till
is born since the Will that Child shall have a share the same being given to them by Name and as to the Real Estate it being ordered by the Testator to be added to his Personal for increase of all his Childrens Portions and the said Sarah being born before he died the same to be Sold and divided amongst the five Children viz. Benjamin Samuel Mary Hannah and Sarah equally Sale contra Freeland 32 Car. 2. fo 272. THat Thomas Freeland the Defendants great Grandfather Will. Settlement Revocation being Seized of the premisses did by his Will in writing devise the same to Nicholas his Son for life only and afterwards to his Grandson John late Husband of the Defendant Frances and Father of the Defendant John and his Heirs for ever That the said Thomas and Nicholas being dead John the Grandson entred and for 300 l. Mortgaged the premisses to the Plaintiff and not long after the said John on confidence of the power he had to dispose of the premisses made his Will and the Defendant Frances Executrix and devised the premisses to be Sold for payment of his Debts But the Defendant insists That the said Thomas the great Grandfather had no power to dispose of the same premisses and if he had he did not pursue it regularly for that he had made a Settlement of the premisses in 1651. upon one Henry Weston and his Heirs to the use of him the said Thomas for life and after to Nicholas his Son for life and after to the use of the said John his Grandson and the Heirs of his Body with remainder over and that the Defendant John the Grandson by virtue of the said deed as Heir in Tail claims the premisses whereas if any such deed were it was with a power of Revocation by any Writing or Will in writing to be executed in the presence of three Witnesses and was revoked by his making his said Will in the presence of three Witnesses though one of them then present did not subscribe the same That the said John the Grandson had the full power of the Estate and the grant made to the Plaintiff ought to be supported in Equity being for valuable consideration though the power was not litterally pursued in the Circumstances of three Witnesses the intent of the Person appearing as sufficiently by two Witnesses as if there were three and submit to the Judgment of this Court The Plaintiff farther insisting That the said Thomas the great Grandfather takes notice in the preamble of his Will of the power by him reserved upon the said Settlement to make any alteration thereof during his life and then by the said Will deviseth the premisses to the said John his Grandson in Fee and he Mortgages to the Plaintiff and there is no Colour but the Defendants ought to redeem or be foreclosed This Court it appearing that there was more than two Witnesses present at the publishing the Will A Settlement with power of revocation by Will in writing executed in the presence of three witnesses but one of them did not Subscribe his Name yet Decreed a sufficient Revocation though two only Subscribed their Names thereto and upon hearing the words of the power and also the Will of the said Thomas Read declared that as this case was Circumstanced there ought to be a Redemption or a foreclosure and that the Will although but two Witnesses to it did sufficiently revoke the said deed of Intail Rose contra Tillier 33 Car. 2. fo 435. THat William Tillier deceased Copyhold Surrendred on Condition to pay 200 l. to Katherine at 21 years of Age and if she die before 21 without Heirs of her Body then to the Surrendree Katherine dies before 21 leaving a Son Decreed the 200 l. to be paid to the Son and the Lands to stand charged therewith 14 Car. 2. Surrendred Copyhold Lands of Inheritance to the use of the Defendant J. Tillier his Heirs and Assigns for ever upon condition that the Defendant should pay or cause to be paid to Katherine Tillier the Daughter of the said William Tillier 200 l. when she should accomplish the Age of 21 and if the said Katherine should die before 21 without Heirs of her Body then the said 200 l. to be for the use of the said Defendant but if default should be made by the said Defendant then the said Copyhold Lands should be to the use of the said Catherine her Heirs and Assigns and the said Surrender to be void and the said Willian Tillier after the said Surrender and before he died by writing appointed the said Defendant not only to pay the said 200 l. to the said Katherine but also 6 l. per Cent. till such time as the same became due That the Plaintiff married the said Katherine and had by her one Son named George that after Katherine died and then George and the Plaintiff took Administration to them both whereby he is intituled to the said 200 l. with damages The Defendant insists That Katherine died before the Age of 21 and so he is not liable to pay the said 200 l. or to give any Account of the Lands or Profits in the Surrender This Court decreed the Defendant to pay the Plaintiff the said 200 l. and that the said Lands so surrendred stand charged therewith Thompson contra Atfield 33 Car. 2. fo 412. THe Bill is to discover a purchase Deed of Frogpoole Marriage Settlement purchased by Henry Atfield the Plaintiffs Great Grandfather to him and his Heirs and that William Thompson the Plaintiffs Grandfather married Mary the eldest Daughter of the said Henry Atfield who declared that he had made the purchase aforesaid for the benefit of the said William and Mary his Wife and for the Heirs of the said Mary and that he would settle the same accordingly but the said Henry Atfield dying before any such Deed was executed yet the said William and Mary were in possession long before the death of the said Henry and paid no Rent and the said Henry leaving a Son at his death viz John Atfield the Defendants Father who having a great affection for Anthony Thompson the Plaintiffs Father who was the Son and only Child of the said William and Mary his Aunt a Match was proposed between the said Anthony and Elizabeth Smith the Plaintiffs Father and Mother which took effect but before and in consideration of the said Marriage the said John Atfield the Defendants Father setled the said premisses on the said Anthony the Plaintiffs Father and his Heirs for ever and the said Anth. had by the said Elizabeth the Plaintiff his eldest Son and Heir But the Defendants pretend the said Deed is defective in Law to have which Deed made good and supply the defect thereof by Equity by the Defendant according to the intent of the original Settlement made by John Atfeild the Defendants Father is the Bill The Defendant insists There could be no such Marriage Agreement for setling
Assigns Dorothy was Executrix and granted the Lease to William And the Record goes further After the death of Thomas without Issue it was to go the Daughter which was a plain affectation of a Perpetuity but however this Case is contradicted by other Resolutions Cotton and Heath before cited and Wood and Sanders in this Court which was this a long Lease is limited and declared thus To the Father for 60 years if he lived so long then to the Mother for 60 years if she lived so long then to John and his Executors if he survived his Father and Mother and if he died in their life time having Issue then to his Issue but if he die without Issue living the Father or Mother then the Remainder to Edward in Tail John died without Issue in the life time of the Father and Mother It was Resolved by Lord Keeper Bridgman assisted by two Judges That the Remainder to Edward was good The whole Term had vested in John if he had survived yet the Contingency never hapning and so wearing out in the compass of two Lives in being the Remainder over to Edward might well be limited upon it Object Where will you stop if not at Child and Bayles Case Resp Every where where there is apparent danger of a Perpetuity but so is not this Case The Equitable Reasons were 1. It was Prudence in the Earl to take care that when the Honour descended upon Henry a little better support should be given to Charles who was the next Man and trod upon the Heels of the Inheritance 2. It was very probable and almost morally certain that Thomas would die without Issue he being not of a good state of Body or Mind and while such they were circumspect that he should not Marry 3. It s an hard thing for a Son to tell his Father That the provision he has made for his younger Brothers is void in Law But it is much harder for him to tell him so in Chancery for there no Conveyance is ever to be set aside where it can be supported by a reasonable Construction The Law doth in many Cases allow of a future Contingent Estate to be Limited where it will not allow a present Remainder to be Limited A man hath an Estate Limited to him his Heirs and Assigns this is a Fee-simple but if he die without Issue living I.S. or in such a short time to I. D. this is good Though it be impossible to limit a Remainder of a Fee upon a Fee yet it s not impossible to limit a Contingent Fee upon a Fee Pell and Brownes Case If a Lease comes to be limited in Tail the Law allows not a present Remainder to be limited thereupon yet it will allow a future Estate arising upon a Contingency only and that to wear out in a short time The Limitation in Wood and Sanders Case is after an express Entail and yet Adjudged good because it was a Remainder upon a Contingency that was to happen during two Lives which was but a short Contingency and the Law might very well expect the hapning of it But our Case is stronger because it is only during one life It was decreed the Plaintiff should enjoy this Barony for the residue of the Term and the Defendants to make him a Conveyance accordingly and to account with the Plaintiff for the Profits received since the death of Duke Thomas and which they or any of them might have received without wilful default The Duke of Norfolk exhibited a Bill of Review in Chancery to which Charles Howard put in a Plea and Demurrer which was Argued before Lord Keeper North and he Over-ruled the said Plea and Demurrer and Reverst the Lord Chancellors Decree But afterwards this Decree was Reverst in Parliament and the first Decree affirmed in behalf of Charles Howard Turner contra Crane 34 Car. 2. fo 668. THat Robert Newell and his Wife Copyhold Mortgage for 220 l. paid by the Plaintiffs Wife Susan then a Widow did Surrender the Copyhold Premisses to the use of the said Susan and her Heirs on condition that the said Robert Newell and his Wife 's paying to the said Susan her Executors and Assigns 230 l. in March next after then the Mortgage to be void and the Mony not being paid the said Susan was admitted to the premisses and afterwards Marryed the Plaintiff and they received the profits of the premisses and afterwards Susan died Intestate no ways indebted leaving Susan her Daughter by the Plaintiff her Heir an Infant and the said Susan the Infant was admitted by the Plaintiff her Guardian Admittance of Guardian as Heir to Susan the Mother who received the profits and died leaving the Defendant Jane Crane her Aunt as Heir and she was admitted and the Plaintiff on Susan the Daughters death took Administration of Susan the Mothers Estate and claims the Mortgaged Lands insisting That though the Defendant Jane was Heir to Susan the Daughter who was Heir to Susan the Mother yet the premisses being a Mortgage belonged to him as Administrator to Susan the Mother This Court would consider of this Case and of Cases of Mortgages in Fee where no Covenant is made for the payment of the Mortgage-Mony to the Executor or Administrator and no debts owing by the Mortgagee whether the Heir or Administrator of the Mortgagee shall have the Lands This Court upon reading Presidents declared The Heir of the Mortgagee in Fee there being no debts owing shall have the Redemption Mony and I not the Administrator That he was fully satisfied that the Plaintiff as Administrator to the said Susan ought not to have the mortgaged premisses from the Defendant Jane Crane the Heir of the Heir of the said Mortgagee but the said Jane ought to enjoy the same and dismist the Plaintiffs Bill Dowse contra Percivall 34 Car. 2. fo 186. THe Plaintiffs Father John Dowse Lessee purchased the Inheritance in Trustees Names and dies Intestate This Lease shall attend the Inheritance took a Lease of the City and afterwards purchased the Inheritance in Trustees Names for him and his Heirs and the said Dowse died Intestate the Defendant his Wife as Administratrix claims this Lease to belong to his personal Estate This Court decreed it to attend the Inheritance Magistr ' c. Vniversit ' Colleg ' in Oxon ' contra Foxcroft 34 Car. 2. fo 522. THe Bill is to Revive a former Decree made against the Defendants Father whereby the said Defendants Father was decreed to pay the Plaintiff 2000 l. and Interest To which the Defendant demurs A Decree and Sequestration against one who dies this shall not be Revived against his Heir or Real Estate though it were for Mony payable on the behalf of a Charity for that the said Defendants Father against whom the said Decree and a Sequestration is had is dead whereupon the Sequestration being granted purely for his Contempt of a Decree which was for a personal duty only
or their Testator could not come sooner than when the Title was cleared Mean profits Decreed tho' a long time since and the Objection raised from the shortness of the former decree is not material to prejudice the Plaintiffs demand for that there could not then be any decree for profits the said Sir James pretending Title as Tenant in Tail Account for the mean profits from the time the right accrewed and that Sir Thomas was but Tenant for life so now the Right being cleared the Plaintiff ought to have an account of the mean profits from the time the Right accrewed and decreed accordingly The Defendant Appealing from the said Decree made by the Lord Chancellor Finch to the Lord Keeper North the Case was heard ab integro and the Lord Keeper on hearing the decree in 1650. and the decree of the Lord Finch read declared that there was nothing in the case but the loss of time and though the Decree in 1650. The mean profits tho' omitted in a former decree decreed now was silent as to the mean profits yet the same ought to be no Objection to the Right and though it was omitted by the Decree in 1650. yet it ought in Justice to have been decreed for the mean profits as well as for the right of the Title it being an accessary to the decree and it ought to be judged nunc pro tunc there being no Bar against it and confirmed the Decree made by the Lord Finch Girling contra Dom ' Lowther al' 34 Car. 2. fo 148. THat Sir Thomas Leigh deceased late Father of the Defendants John Thomas and Woolley Leigh became indebted to Edmond Girling deceased in several Sums of mony by Bonds and the said Girling became bound for the said Sir Thomas for several great Sums of mony against which Securities Sir Thomas gave the said Girling Counterbonds and in Hillary Term 28 Car. 2. Sir Thomas gave a Judgment of 1000 l. to the said Girling for the payment of 530 l. and in Aug. 1669. Sir Thomas made his last Will in writing and thereby devised to the Defendants Sir John Lowther John Currance and Edward Badby Executors of his said Will several Lands Lands and Tenements for the payment of his debts and to be by them sold for that purpose That the Swan Inn in St. Martins Lane being sold there ariseth a Question touching the Mony raised by such Sale whether it were well applied or not The Case being viz. That Sir Thomas Leigh upon his Marriage with Hannah Relfe Daughter of Anthony Relfe whilst he was under Age by Articles previous to the said Marriage with the said Hannah agreed to settle on himself and the said Hanuah his intended Wife and such as they should have between them Lands of 700 l. and in Consideration thereof the said Anthony Relfe was to settle and did settle upon the said Thomas and his Heirs Lands of 200 l. per Annum whereupon Sir Thomas Leigh July 1661. makes a Settlement upon himself and the said Hannah his intended Wife and their first second and other Sons in Tail his Mannor of Addington and other Lands in Addington and several Lands in Com' Surrey and Keut That afterwards in May 1665. Sir Thomas Leigh mortgaged to Mr. Peck for 2000 l. several Lands in Middlesex and Norfolk and afterwards in December 1665. those Lands and the moiety of the Swan Inn in St. Martins and the Reversion thereof were granted to Trustees upon several Trusts which by Deed 15 June 1668. appears to be performed and satisfied and thereupon on the same 15 June 1668. the said premisses were mortgaged to Sir John Lowther for 2500 l. which 2500 l. was raised and paid to Sir John Lowther out of the profits and by sale of the said Swan Inn which was formerly by voluntary Conveyance dated and setled by the said Sir Thomas Leigh upon the two Defendants Thomas and Woolley Leigh for Natural love and affection Voluntary Settlement That Sir John Lowther in April 1679. assigned the said Mortgage by conveying to one Burton and others the Mannor of Thorpe in Surrey and Shoelands and other premisses in Trust for the payment of such of the debts of Sir Thomas Leigh as should any ways incumber or disturb the Purchaser of the Swan Inn which said Lands are sufficient to pay the Plaintiffs debts and the Testators Ingagement being 1331 l. which debt is to be paid the Plaintiff by Decree of this Court The Defendants the Leighs insist That the Mony raised by the sale of the Swan Inn although paid to redeem the other Estate in mortgage to Sir John Lowther ought not to be applied so that the Land ought to be discharged of the Mortgage-mony or of what was paid to redeem the same but the said Lands ought still to be a Security for the said Mony to the use of the younger Children for whose benefit the said Swan Inn was setled and although the said Settlement was voluntary yet the same being a provision for younger Children ought not to be adjudged fraudulent as to a subsequent Judgment which the Paintiffs is or however not as to a subsequent voluntary Devise of their Father under which only the Creditors by Bond come in and therefore as to them the said mortgaged Lands ought to be charged with the said Mony raised by the sale of the said Swan Inn with Interest since it was paid to redeem the said Estate precedent to any benefit any Creditor by Bond can have out of the said Lands This Court declared Voluntary Conveyance though a provision for younger Children not to prevent satisfaction of subsequent Judgments That the said voluntary Conveyance ought not to stand in the way to prevent satisfaction of a subsequent Judgment for good Considerations and that the Monies due on the Plaintiffs Judgment and the Monies raised by sale of the Swan Inn was well applied to discharge the Mortgage on the other Estate whereby the mony due on the Judgment with Interest may be the more speedily raised by sale thereof and the mony raised by sale of the said Inn after the Judgment satisfied with Interest ought to stand secur'd for the benefit of the younger Children Mony applied to take off Mortgages satisfie Judgments and after to pay Bond-Creditors and be raised by sale of the said Estate and by Rents and Profits in the mean time precedent to the other Creditors not on Judgment and after the said Judgment and provision for the younger Children satisfied the residue to be applied to the other Creditors and decreed accordingly Comes Arglas contra Henry Muschamp 35 Car. 2. fo 524. THat Thomas Relief against over-reaching Bargains first Earl of Arglas the now Plaintiffs Father and William Earl of Arglas the Plaintiffs Brother were seised in Fee of the premisses in question and made divers Settlements thereof by which in case of failure of Issue Male of the said William the said Estate should come to
did intermarry with Sir John Lloyd in the Doctors life time with his consent who upon a Settlement made on the said Mary was to have 2000 l. Portion 1500 l. whereof was to be laid out in Lands for increase of Marys Joynture and that she had Issue by him the Plaintiff Ann. That Sir John Lloyd died and the said Dame Mary intermarryed with one Hutchinson without the consent good likeing or privity of the said Doctor Smalwood her Father That in 1683 the said Doctor Smalwood died having by his Will in 1683 made the Defendant James Smalwod and others Executors and thereby devised and settled his Estate real and personal viz. according to his Settlement formerly made he gave his said Daughter Dame Mary all his Lands during her life if his Executor should so think sit and in case they should not to his Granchild Ann Love and in case of failure to his Grandchild Theophania Hutchinson during her life and in case of failure to his Nephew the Defendant James Smalwood for ever And his personal Estate as Mony Books Plate c. to be divided amongst his said Daughters Grandchildren and Nephew James Smalwood at the discretion of his Executors so to have the said 1500 l. which rested in Dr. Smalwoods Hands being part of the 2000 l. Portion Covenanted by Dr. Smalwood to be laid out in Lands by the said Doctor for increase of Mary's Joynture aforesaid to be laid out according to the Doctors Covenants and to have the benefit of the said Settlement in 1672 is the Plaintiff Bill The Defendant James Smalwood pleads and claims a right to the Estate of Doctor Smalwood by his Will and by the said Deed of 1672 the said Dame Mary having by her Marriage with the said Hutchinson in the Doctors life time without his privity or consent broke the Condition by which she was to have enjoyed the Lands in that Settlement and prays the Judgment of this Court the Estate being limited to him as aforesaid And he further pleads and insists That Dame Mary ought not to have any discovery of the Writings of the Doctors Estate because he the said James Smalwood and the other Defendant Woodroff have not yet consented that she should have any part of the Doctors Estate which power was given them by the Doctors Will as aforesaid and whether he and the other Defendant ought to consent as aforesaid submits to this Court But the Plaintiffs insist Lands setled on a Daughter provided she Marry by consent and she Marries by consent after she Marries a second Husband without consent this second Marriage is no breach of the proviso That they admit such proviso in the Deed of 1672 that in case the said Dame Mary should Marry in the life time of the Doctor without his privity consent and liking then all and every the Limitations therein should cease and be void But insist That the Marriage between Sir John Lloyd and Dame Mary was concluded by the Doctor himself as appears by the said Articles and that they married with the Doctors good liking privity and consent according to the said Condition and insist That Dame Mary's second Marriage with Hutchinson was not without the consent privity and good liking of the said Doctor and insist also that the said proviso by Dame Marys first Marriage was fully performed and the Estates in and by the said Settlement granted absolutely vested according to the Limitation declared and contained so as the said second Marriage of Dame Mary with the said Hutchinson if it had been without such consent could not have divested the same and therein crave the Judgment of this Court The Court declared That the first Marriage of Dame Mary being by her Fathers consent her second Marriage though it had been without his consent could be no breach of the Proviso or Conditon in the first Settlement and decreed the Defendants the Executors of Doctor Smalwood to account for all the personal Estate of the said Doctor Monies decreed to be laid out in Land according to Marriage Agreement and the Rents and profits of the real Estate and if personal Estate sufficient after debts to pay the 1500 l. then they are to pay the same to the Trustees which they are to lay out in a purchase of Lands according to the Deed of the 18 Aug. 1683. Com' Winchelsey al' contra Dom ' Norcloffe al' 1 Jac. 2. fo 1026. THat Katherine Act of Parliament for the Settlement of Intestates Estates late Countess of Winchelsey the Plaintiff the Earls late Wife had three Husbands Successively viz. Lister her first Husband by whom she had Issue the Defendant Christopher Lister Sir John Wentworth her second Husband by whom she had Issue Thomas Wentworth since deceased and the Defendant John Wentworth and the Plaintiff the Earl her third Husband by whom she had Issue the said Lady Catherine and the Plaintiff the Lady Elizabeth That the said Wentworth had a Real Estate by discent from his Father out of which after his Fathers death there was payable to or to the use of the said Thomas several Sums of money for Rents Fines and Profits That in 1684. the said Thomas died Intestate leaving no Wife or Child but leaving the Defendant Christopher Lister John Wentworth the Lady Katherine and the Plaintiff the Lady Elizabeth his Brothers and Sisters who being the next of Kin in equal degree his Mother the said Countess dying in his lifetime they by Virtue of the late Act of Parliament for selling Intestate Estates became Intituled to the surplus of the said Thomas his Personal Estate to be equally distributed and divided amongst them viz. to each of them a fourth part thereof that before any Distribution made the Lady Katherine died Intestate and Administration of her Estate was granted to the Plaintiff the Earl her Father who by Virtue thereof and of the said Act of Parliament ought to have the said Lady Katherines fourth part of the said Personal Estate of the said Thomas Wentworth her Brother and the Plaintiff the Lady Elizabeth ought to have another fourth part but the Defendants pretend that part of the said Thomas his Personal Estate was in his Life-time Invested in the purchase of Lands which were Conveyed to him and his Heirs and ought to Discend to the said John Wentworth as his Brother and Heir and the said money ought to be accounted as part of his Personal Estate whereas if any such Purchase were made the same were without his Consent and during his Minority when he had no power to direct the laying out thereof and the Lands in Equity ought to be accounted part of his personal Estate of which the Plaintiff seeks to have their shares The Defendants insist That the Defendant John Wentworth only was of the whole Blood the rest being but of the half blood to him only and leaving the Defendant Dame Dorothy his Grandmother by the Mothers side viz. Mother of the said
to the uses of the Articles To which the Defendant pleaded and demurred insisting the same was obtained on good Grounds and Reasons and farther insisted that since the said Dismission and before the Bill of Review the said Lamb had paid the said 1500 l. with other money unto the Defendant Atwood in Right of the said Ann his Wife who was Administratrix to Richard Kettleby and Ann the Daughter and that in consideration thereof the said Defendant Atwood had made a Settlement equivalent thereto for a Joynture for his said Wife and the Issue Male of their two Bodies with a provision for Daughters and that they had a Son then living and prayed the Judgment of this Court therein Which Plea and Demurrer was argued before the Lord Chancellor Jefferies which his Lordship over ruled and Ordered the Defendant to answer and he would hear the Cause ab origine at which hearing the Defendant Atwood and his Wife insisted That the Plaintiffs demand being only a Remote Remainder in Fee as Right Heir of the Husband was not so valuable in Interest as for a Court of Equity to Decree a purchase to be made for the Sale thereof and to take the money from the Wife and Administratrix to make that purchase when she ought to return the same as Assets or howsoever 1500 l. of the money was her own Portion and belongs to her by her Election within six Months and though according to the strict Letter of the Articles her Husband Richard Kettleby could not be said to die leaving no Issue because he had a Daughter living at the time of his death yet the Daughter dying within the six Months allotted for the Wives Election in case he had died leaving no Issue there was great equity to extend the Construction of that Clause of the Articles so far as to give her back her own 1500 l. portion The Plaintiff insisted That such Remainders in Fee have been considered by this Court and purchases decreed to be made and limited to such Right Heirs and that the 2000 l. in this Case cannot be Assets and in like Cases had been so adjudged at Common Law and in this Case the Articles have expresly provided that the money should go as the Land ought to have gone as if a purchase had been made therewith and as for the pretence of the said Defendant Anns electing 1500 l. her power of electing did never arise nor can her power be enlarged by this Court beyond the express words of the Articles nor is there reason for it in this case in regard the Articles provided that she shall have a Dower besides and the said Ann by virtue of her two Administrations hath a great personal Estate besides the 2000 l. in question This Court declared That the 2000 l. Money to be laid out in Land shall be apapplied as the Land should have been had it been purchased must go as the Lands ought to have gone in case a purchase had been made and yet the Wife had no power to elect 1500 l. part thereof because her Husband died leaving Issue and so her power of election never arose nor did any Circumstances appear to his Lordship in this Cause to induce him to inlarge the Construction of the Articles touching such power of electing beyond the express words thereof and decreed the said dismission to be reversed and that the Defendant Atwood and Ann his Wife do lay out the 2000 l. for purchasing Lands in possession in Fee simple to be setled according to the intent of the Articles And as for the Defendants the Trustees Trustees indempnified in regard they relyed upon the said dismission Signed and Inrolled for their indempnity in paying the said 2000 l. to the said Atwood at his Wife they are indempnified thereby Paggett contra Pagget 3 Jac. 2. fo 2. A Deed of Revocation Blanks filled up after the Sealing and Execution of a Deed yet good and a new Settlement made by that Deed tho' after the sealing and execution of the said Deed Blanks were filled up in the said Deed and the said Deed not read again to the party nor resealed and executed yet held a good Deed. Smith contra Fisher 3 Jac. 2. fo 641. THat Susan Beale by her Will in writing after several Legacies thereby given Money deviled to one for life with Limitations over good gave all the rest and residue of her Estate unbequeathed which consisted mostly in ready money to be put forth to Interest by her Executors and one half of the Interest to be paid to the Plaintiff Ann Cole her Sister during her life and the other half of the Interest unto the Plaintiff Ann Smith Daughter of the said Ann Cole and after her Mothers decease to have all the Interest during her life and if the said Ann Smith died without Issue of her Body then the principal of the Residue should be equally divided between the Defendants Mary Cleever and Elizabeth Farmer The Question is whether the devise over to the Defendant Clever and Farmer as aforesaid was a good devise This Court declared that the said Will was a good Will as to the limitations over to the Defendant Clever and Farmer and decreed the Executors to account accordingly Com' Dorsett contra Powle 3 Jac. 2. fo 148. 599. THis Case is Separate Maintenance where by the Deeds and Agreement before Marriage the Countess of Dorset had an absolute power to dispose of all the Personal Estate she had at the time of her Marriage with the Defendant and the proceed thereof and had by her Will and otherwise well disposed of and appointed the same to the Plaintiff and this Court Ordered the Defendant to confirm the same but as to the Rents and Profits of the Real Estate upon consideration of the several Clauses of the Deed relating to the said Estate and different penning of the same from the other Deeds that concerned the aforesaid personal Estate his Lordship declared that the said Countess had no power to dispose of the same By Indenture Tripertite Dated 28th of June 31 Car. 2. made between the Defendant Mr. Powle of the first part Sir Thomas Littleton and Charles Brett Esquire of the second part and the Countess of Dorsett on the third part reciting That the said Countess was seized in Fee of several Manor Lands Tenements and Hereditaments in England and reciting there was a Marriage intended between Mr. Powle and the Countess it was agreed that if the Marriage took effect the Countess should during the Coverture receive and dispose to her own use and at her own Will and Pleasure of all the Right and Title she had or claimed in the said Manour Lands and Premisses or in any other Manours or Lands of the Countess in England and of all the Rents and Profits thereof so as Mr. Powle his Executors Administrators and Assigns were not to intermeddle nor have any Benefit or Advantage thereby in Law or Equity but
should joyn with the Countess from time to time in the disposing thereof as she should appoint and the Defendant Mr. Powle thereby Covenanted that if the Marriage took effect Mr. Powle his Execuecutors or Administrators without the consent of the Countess in writing would not incumber the premisses or receive the Rents and Profits to their own use but from time to time would upon request Authorize such persons after receiving the same for the Countess's separate use as she should think fit so as he might have nothing to do therewith either in Law or Equity and that upon request he would make reasonable Leases of the premisses for such Considerations and Terms and under such Covenants as the Countess should think fit and gave such Acquittances for the Rents as should be requisite and convenient and at the Charges of the Countess and her said Trustees should Commence and Prosecute any Suit necessary for the Recovery of any part of her Estates and in defence of her Right thereto and that the said Countess might dispose of the premisses and receive the profits according to the true intent and meaning of the said Indenture Tripartite without the Interruption of Mr. Powle his Executors or any claiming under him or them And by another Indenture Tripartite 28 June 31 Car. 2. between the Countess of the first part Sir Thomas Littleton and Mr. Brett of the second part and Mr. Powle of the third part reciting that where as there was a Marriage to be had between Mr. Powle and the Countess and that by agreement she was to have and dispose to her own use and at her pleasure all her Jewels Plate Goods and Chattels both Real and Personal and the benefit thereof so as Mr. Powle his Executors or Administrators were not to intermeddle therewith the Countess by Mr. Powles consent did make a Bargain and Sale to the said Littleton and Brett of all her Jewels Plate Houshold-stuff Money Goods and Chattels Real and Personal upon Trust that they should dispose of the same and the proceed thereof to such persons and such uses as the Countess by any writing or by her Will should appoint so as Mr. Powle might not have any power or interest in Law or Equity to Sell Charge or Dispose of the same or any part thereof and for want of such appointment upon Trust to deliver the same or such part thereof as should be undisposed of by the said Countess to her Executors or Administrators and Mr. Powle by the last Deed covenanted not hinder the same and also that they should be free from all debts and ingagements of the said Powle That Mr. Powle and the Countess intermarried and afterwards the said Countess according to the said agreement and power as long as she lived disposed of all the Rents and profits of her real Estate and without Powle's intermedling That aftewards the said Trustees dying Mr. Powle by Deed with the said Countess transferrd the said Trust to other Trustees and also covenanted not to intermeddle but the said premisses to be solely in the power of the said Countess And it was agreed that the receipts of the Countess should be sufficient for the premisses or the preceed thereof notwithstanding tthe Coverture That the Countess by her self and the Trustees received the rents and profits of the premisses and disposed thereof without Mr. Powle That the said Countess by Deed of appointment in 1682 and by her Will in 1684 whereof she made the Plaintiff the Earl of Dorset her Son Executor to whom she after some Bequests and appointments to other persons Bequeathed and appointed all the rest of her personal Estate and also gave to him all her Monies and Rents and all Arrears of Rents in her Steward and Tenants Hands to all which the Plaintiff the Earl the said Countess being dead is intituled The Defendant Powle insists that as to the Rents and Profits of the Real Estate he claims the same and that he was so far from not intermedling therewith that he would not permit the Stewards to receive the Rents without Warrant from himself and that he passed all the Accounts thereaf and rectified them after the Countess had signed them This Court declared Feme Coverts disposing of her personal Estate according to Agreement at Marriage decreed good But not as to the Rents and Profits of her real Estate There was an absolute Power in the said Countess of disposing all her personal Estate that she was possest of at the time of her Marriage and the proceed thereof and that she had pursuant to such Power well disposed of the same and decreed the Defendant Powell to confirm the said Will and Appointment But as touching the rent and profits of the real Estate upon Consideration of several Clauses of the Deed relating to the said Estate and different Penning of the same from the other Deeds that concerned the personal Estate This Court declared the said Countess had no power to dispose of the same and all the Arrears thereof to be accounted for to the said Mr. Powle THE CASE OF The Duke of Albemarle With the Arguments thereon Com' Mountague al' contra Com' Bath al' 4 W. M. fo 90. THe Plaintiffs Revocation Will. after a Trial at Law directed out of this Court wherein the Point in Issue was Whether a Settlement was well made and executed and a Verdict for the Defendant that it was good and valid in Law They come into this Court to seek Relief upon the Equity reserved against the said voluntary Settlement wherein was a power of Revocation by virtue of a Will afterwards made the Question being Whether in Equity the said Will was a Revocation of the Deed tho' not strictly pursued The Bill was That Christopher Bill late Duke of Albemarle being seised of several Mannors Lands and Tenements in several Counties having married the Duke of Newcastle's Daughter and being possest of a considerable personal Estate frequently declared That he would make ample provision for the Dutchess who then had but 2000 l. per Annum Annuity setled on her for a Joynture by George Duke of Albemarle upon her Marriage with Duke Christopher for the support of her Dignity in case she survived him and that if he should have no Issue Male he would leave to her for her life at least 8000 l. per Annum out of his real Estate and in pursuance of such his Resolutions and likewise for the setling of the Remainder of his Lands upon his dying without Issue on Colonel Monk and others made and published his last Will in writing dated 1 July 1687. Whereby He gives to his Wife Coaches Jewels Plate c. and for advancing her living and support if he have no Issue Male and in full of her 2000 l. per Annum Rent-charge and Dower he gives her his Lands in Essex Stafford Lancaster York Lincoln Surrey Devon Hertford Middlesex Berks and Southampton for her life and if she accept
the same that she shall release the 2000 l. per Annum within Three years after his death or else that Devise to be void The Remainder of his Lands in Berks to Sir Walter Clergyes pur vie and after in Tail Male Remainder to his Cousin Henry Monk in Tail Male Remainder to his own Right Heirs To Bevile Greenvile Son to the Earl of Bath his Freehold Lands in Surrey and Southampton for life and then in Tail Male Remainder to his Cousin Tho. Monck pur vie and then in Tail Male Remainder to his Cousin Henry Monck in Tail Male Remainder to his own right Heirs His Lands in Devon to Colonel Thomas Monck for life and then in Tail Male Remainder to his Cousin Henry Monck in Tail Male remainder to his own right Heirs All his Lands in Ireland to his Cousin Henry Monck in Tail Male with Remainder to his own right Heirs Provided That if he have any Issue all devises of any Sums of Mony except for his Funeral his Father's Monument Alms-houses and Legacies to his Executors shall be void and if he leave any Issue the premisses devised to Sir Walter Clergyes Mr. Greenvile Thomas and Henry Monck and their Issue shall go to his Issue viz. to his Sons successively in Tail Male if Daughters in Tail with Remainders to the said persons as before Provided If he leave Issue Male he deviseth to his Wife as an Additional Joynture to her Rent charge Lands in Devon and Essex for her life and makes the Dutchess during her life and in case of her death the Dutchess of Newcastle Guardians of his Children he shall have And in case it happen that Colonel Thomas Monck or any Heirs males of his Body shall live to come and be in possession of the premisses devised to him he desires they will live at Potheridge the Ancient Seat of the Family and desires his Majesty to grant them the Title of Baron Monck of Potheridge that it may remain in the Family in Memory of his Father and himself and his Service his Father had the Honour to do the Crown in the Restauration and makes the Duke of Newcastle Lord Cheney Jarvis Peirpoint Sir Walter Clergyes Sir Thomas Stringer Henry Pollexfen Esq and others Executors That the Duke gave direction to Henry Pollexfen Esq to make this Will and when drawn was fully approved of by the Duke upon mature deliberation Which Will being in Three parts he carefully lock'd up and after leaving Two parts of his Will to two persons and kept the Third he went to Jamaica That the Duke when in Jamaica heard Colonel Thomas Monck was dead in Holland sent to the Earl of Bathe Sir Tho. Siringer and others to send over for Chripher Monck the Colonels eldest Son to Educate him so as to fit him to bear the Character of one to whom he intended the greatest part of his Estate if he died without Issue In September 1688. the Duke sickned in Jamaica and there again published his said Will and declared that if he died the Box and Will should be delivered to the Dutchess and died in October following That the Dutchess at her Return from Jamaica found that the Earl of Bathe set up another Will dated 3. Aug. 1675. whereby the Remainder of the greatest part of the Estate was given to the Earl of Bathe and his Heirs and likewise a Settlement by way of Lease and Release in corroboration of that Will by which he seeks to avoid and frustrate the Will of 1687. That the Duke sent to the Earl of Bathe for the Will of 1675. if any such to have it delivered to him that he might make another Will That the Will of 1687. was Sealed at Sir Robert Claytons the same day after other Writings had been by him sealed to the Lord Chancellor Jeffreys of some Lands sold to him and that the Dutchess nor any of her Relations ever knew or heard of the said Deeds till after the Dukes death nor known to Sir Thomas Stringer who was the Dukes standing Councel and the Plaintiffs farther insist if there were such Deed yet it ought not to avoid or impeach the said last Will though the power of Revoking the same was not literally pursued yet the same in Equity ought to be taken as a Revocation and the rather for that at the making of the Will the Duke remained owner of the Estate and he lookt upon himself so to be for that he had since the said pretended Deeds sold some part of the Estate to Chancellor Jefferies without any Revocation and the Earl of Bath paid no valuable Consideration and that he ought to be protected in the enjoyment of the personal Estate and the Specifick Legacies devised to her in the Will of 1687. tho' the Will of 75. if any such be was intended by the Duke principally to hinder the discent to his next Heir and the Deeds if such there be were for the same purpose and that tho' the Deed recites to confirm the last Will of 75. yet does in several places controul it and alter it whereby and by the extraordinary strange and unprecedented Declarations Provisoes and Covenants therein the Plaintiff believes the Deeds were never executed by the Duke or if so that he was surprised therein and pray Relief in the premisses To this the Defendant makes Answer Answer and sets forth the Will of 1675. whereby the greatest part of the whole Estate was given to the Earl and his Heirs and sets forth the Considerations of his so doing as Antient Kindred and Esteem between Duke George and the Earl of Bath and several Services and good Offices that he had done the Family and likewise sets forth that being well satisfied with such his disposition of his Estate and finding that he had been often importuned to alter the same and fearing lest the repeated Practises and Arts attempted against such his Disposition might some time or other surprise him into a Compliance Consulted with Sir William Jones and other his Councel how to Obviate such practises and to settle his Estate in such manner as that it might not be avoided although for his ease he should at any time seem to yield to the Sollicitations of his near Relations whereupon in Anno 1681. the Duke makes a Settlement wherein he begins That for the assuring of the Honour Manours c. upon a Person of Honour c. and for the Corroborating and Confirming the said Will of 75. and to the end that no pretended last Will should be set up by any Person whatsoever and for the Natural Affection that he beareth to the Earl of Bath c. grants by Lease and Release several Mannors Lands and Tenements c. some in Possession and some in Remainder upon the Earl of Bath in Fee and so to Walter Clergies c. in which Deed there was this Proviso Proviso That if the Duke shall at any time during his life be minded to make void the said Indenture
on Intayling of a Term for years with Remainders over 229 Remainders succesively in a Deed of Trust being limited and confined to fall within 21 years are good and no Perpetuities 282 Q EStates Devised to be sold for increase of Childrens Portions and a Child is Born since the Will that Child shall have a share 211 Portions to be paid to two Daughters at Age or Marriage one dies before her Portion shall not go to the Administrator but the Heir shall have the profits upon the Settlement 289 Devise by Will and an Agreement about a Portion not intended several sums 35 Where Lands to be charged with Portions or not upon the Construction of a Will 126 On Constructions of a Marriage Settlement and a Will only one Portion decreed and not double 165 Payment Whether payment of Mony shall be applied to discharge Interest of the original debt or towards satisfaction received by Judgment on the same Bond 89 Priviledge from a Parish Office for the Kings Officer grantable out of Chancery as well as Exchequer 197 Power to make Leases if well pursued 157 Prohibition out of Chancery for Arresting in the Marshalls Court for matters arising in Berks 301 R. UPon refusal to accept of Rent no relief in Law or Equity for the Arreares 61 Recognizance entred into by the Wife the day before Marriage set aside and a perpetual Injunction 80 Release pleaded against the Redemption of a Mortgage and allowed 131 Reversion after an Estate Tayl subject to Trust for payment of debts 208 Contingent Remainders Devise to Father for life Remainder to his first Son and Remainder to Trustees for 99 years to support the Contingencies good tho' the Limitation is misplaced 171 A Suit cannot be revived for Costs alone where no Duty is decreed 246 A Settlement with power of Revocation by Will Executed in presence of three Witnesses but one of them did not subscribe his Name yet decreed a sufficient Revocation 214 Proofs in an original Cause not to be allowed on a Bill of Review 18 45 Bill of Reviver dismist for that 't is a long time since the Decree was made and the Plaintiff Rested under it without any complaint 48 Bill of Review for that the Plaintiff can now prove a tender and refusal which he could not prove before dismist 66 Reviver by Bill or Scire facias when proper 67 Where no ordinary Process upon the first Decree will serve but there must be a new Bill to pay Execution of the first Decree by second Decree 128 No Reviver for Costs there being no Decree Inrolled 195 No Defence in case of Abatement before the Decree signed can revive 195 S SEpecial Maintenance 411 feme Coverts disposing of her personal Estate according to Marriage Agreement decreed good but not as to the Rents and Profits of her real Estate 416 A prior Deed of Settlement barred by a subsequent Deed and new provision made for Portions 8 Supplicavit of the Peace on Petition and not on Motion nor any indorsment on the back thereof yet good 68 Want of a Surrender Aided 129 Mony decreed to be paid out of a Sequestered Estate and the Commissioners had power to sell the Term 192 A Decree and Sequestration against one who dies shall not be revived against his Heir or real Estate 244 T DEed in Trust to pay debts tho' the Creditors are not parties and no certainty of debts therein appearing yet yet good against an after Purchasor who had notice of the Trust 31 An old Trust continued upon a new Lease or Patent 60 No Tenant right against the Crown ibid. Mortgagee or Trustee renewing a Church Lease the cesty que Trust relieved ib. Where Executor shall have a Trust and where not 78 After a Statute acknowledged and a Mortgage the Conisors Trustees renew Leases in their own Names yet decreed lyable to the Statute 213 Trust assigned Trust determined 115 c. a general Trust and not a fixed Trust 141 2000 l. Allowed a Trustee for charges and expences in managing the Trust 158 Springing Trust 233 Difference between a Trust and a Legacy 288 Term iâ— Gross and Term to attend the Inheritance 233 Trayal at Law directed within a precise time 124 U Will vid. Legacies DEvise of Mony to be paid at a day to come Devisee dies before the day yet it shall be payable to the Administrator 25 Land devised on Condition the Devisee Marry with consent the Limitation over Devisee Marries without consent she shall not be relieved but the Land decreed to the Remainder man 28 Clause in a Will If any Legatee shall oppose or hinder the Execution of the Will then such persons to lose the Legacy a Suit for the Legacy is no forfeiture 105 Construction upon the words of a Will about a double Legacy 111 Construction upon the words of a Will about the profits of Land and Trusts 117 118 Devise of Goods to J.S. for 11 years Remainder over J. S. decreed to deliver the Goods after the 11 years 137 Devise the residue of his Estate amongst his Kindred according to their most need how to be expounded 147 By the general words of a Will I Devise all my Goods Chattels and Household-Stuff in and about my House to J. S. ready Mony in the House shall not pass to the Devisee she having a Legacy 190 A Deed of Trust no Revocation of a Will Estate Devised to be sold for encrease of Childrens Portions and a Child is Born since the Will that Child shall have no share 211 Devise of a Plantation in Barbados 250 Executory Devises 275 Vide Perpetuities A Will and after that a Mortgage the Will is republished it s a good Will and not revoked 299 Lands devised to be sold and none expressed to sell the Executors shall sell 304 Mony devised to one for life with Limitation over good Limitation 410 One of the Plaintiffs a Witness 32 W Wast Injunction against Plowing or Burning of Pasture 94 Y THe Custom of the Province of York as to the distribution of Decedents Estates 258 FINIS