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
the premisses as aforesaid for that Mary sued her Mother and had her portion out of the personal Estate and though the Defendants Father might intend to give the Plaintiffs Father the premisses and sealed a Deed for that purpose yet he altered his Mind and never perfected it and there was no Consideration for his so doing And the Defendant insists He ought to enjoy the premisses for that by the Plaintiffs own shewing his Title is defective and therefore ought not to receive any countenance in a Court of Equity against the Defendant who is Heir at Law to his Father and Grandfather and comes in and ought to have the Aid of the Court to protect his Title But the Plaintiffs Council insisted That the Defendants detaining of the said Deed is a Fraud and the Consideration of making the said Deed is valuable Defect of Livery and Seisin aided in Chancery and there is no defect therein but want of Livery and Seizin which defect this Court hath often supplied when no Fraud appears in gaining the Deed. This Court the said Deed appearing to be fairly executed by the Defendants Father and that there was no defect therein save only the form of Livery and Seizin and made on such valuable Consideration as Marriage decreed the Defendant to execute Livery and Seizin in the said Deed and make farther assurance of the said premisses to the Plaintiff and his Heirs and the Plaintiff is decreed to enjoy the same against the Defendant Barker contra Hill 33 Car. 2. fo 278. THe Plaintiff having Contracted with the Defendants Father for the purchase of a Copyhold Estate Upon a Contract for Copy-hold Estate and purchase Mony paid the Bargainor dies before Surrender his Heir decreed to surrender the Plaintiff paid the purchase Mony and the Defendants Father agreed to surrender the premisses at next Court and said He had made a Surrender lately to the use of his Will which would enure to the benefit of any Purchaser but before next Court day and any Surrender made the Defendants Father died so the Bill is to have the Defendant his Son and Heir to confirm the Plaintiffs purchase by Surrender or otherwise as this Court shall direct This Court decreed the Defendant when he came of Age to surrender effectually the premisses to the Plaintiff and the Lord of the Mannor presently to admit the Plaintiff Tenant to the premisses Bonnington contra Walthall 33 Car. 2. fo 37. THe Defendant Walthall claims an Annuity of 100 l. per An. Annuity and Interest out of the Estate in question ever since August 1642. with Interest by virtue of a Deed of that date made by himself to Mr. Serjeant Willmot and others whereby it is appointed that the Trustees in the said Deed should dispose of the Monies by them raised by profits and sale of the premisses for payment to the said Defendant and his Assigns during his life and the life of Peter Bonnington the yearly Sum of 100 l. and the said demand of the said 100 l. per Annum and Interest being a Matter of great value and moment in the Cause it is referred to the Judgment of the Court whether all or how long the said 100 l. per Annum shall or ought to be allowed in this point as also the original Cause which was heard 19 Nov. 1679. coming now to be heard again The Plaintiff insisted That the 100 l. per Annum if it was created the same determined by the death of Peter Bonnington But the Defendant Walthall insists to have Allowance for the said Annuity of 100 l. and Interest for the same for 40 years past whereas the Plaintiff insists That the 100 l. per Annum never was nor ought to be allowed to the Defendant for that the Deed of August 1642. under which the Defendant claims the said 100 l. per Annum the same was to be paid in the first place before debts and there being a debt due to one Chambers which the said Defendant brought in against which debt if the said Annuity had been real the Defendant would have opposed the payment of his said 100 l. per Annum being to be paid in the first place and the Defendant not demanding the said Annuity in 40 years and suffering debts to be paid before it it ought to be adjudged a Trust for Peter Bonnington and the rather for that no Consideration appears for such Annuity The Defendant insists That the Plaintiff admits it a Trust and seeks Relief only for the Surplus after Trusts satisfied and determined and this Trust being Continuing the same with Arrears and Interest ought to be paid to the said Walthall This Court on reading the said Deed Annuity not being demanded in 40 years time conceived to be a Trust saw no Consideration for granting the said Annuity and it never being demanded this Court conceived it was a Trust for Bonnington and would not charge the Estate therewith and decreed the Estate to be discharged thereof Ring contra Hele 33 Car. 2. fo 270. THe Plaintiffs Rings Bill is for the Writings and Estate of Sir Henry Hele which he claims by virtue of an Agreement made by the said Sir Henry and him wherein it was agreed that the said Sir Henry should settle his Lands in Wigborough and Bridges in Com' Sommerset on himself for life after to the Heirs of his Body with power to make his Wife a Joynture of Wigborough and to grant Estates thereout for three lives with a Remainder to the Plaintiff Ring and the Heirs of his Body if he Survived and Sir Henry died without Issue with Remainder to Sir Henry's right Heirs with power to Sir Henry to sell Pooles Tenement part of the premisses and Sir Henry was forthwith to suffer a Recovery to dock the Intail of the premisses Consideration and in consideration thereof the Plaintiff Ring was to settle his Estate in Dorset and Sommerset to the use of himself in Tail with Remainder in Tail to Sir Henry Hele with Remainder in Fee to the Plaintiff and that if either party leave Issue to be at liberty to make new dispositions as he pleased That Sir Henry imployed one Chubb and Patten to assist the Plaintiff Ring in Surveying Sir Henry's Estate and after both the Plaintiff Ring and Sir Henry went to Counsel who advised a Deed of bargain and sale of the said Estate from Sir Henry to the Plaintiff Ring which was executed between the said Sir Henry and the Plaintiff Ring and Inrolled and bears date the 26 of March 1673 That before the said Recovery the Plaintiff Ring prepared another Deed dated the 6th of May following to lead the uses thereof according to the said Agreements and a draught of a Settlement of the Plaintiff Rings Estate on Sir Henry both which being perused and approved by Sir Henry were also executed and the Deed to lead the uses of the Recovery recited the said Agreement and Inrolled Deed to make the Defendant
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
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
hundred Pounds and Damages Rowley contra Lancaster 21 Car. 2. fo 993. THat Matthew Lancaster bequeathed to John Creeke 100 l. thus viz. Will. 50 l. Devise of Mony to be paid at a Day to come Devisee dies before the Day yet payable to his Administrator in one Month after the Expiration of his Apprenticeship and the other 50 l. within one whole year after the Expiration of the said Apprenticeship and made the Defendant Executor That the Apprenticeship expired 29 Sept. 1664. but John Creeke dying before the Legacy was paid the Defendant refuses to pay it to the Plaintiff the Administrator of the said John Creeke The Defendant insists That he paid the 50 l. due within a Month after the Expiration of the Apprenticeship and that the said John Creeke died before the whole year after the Expiration of his Apprenticeship was expired and therefore the other 50 l. was not due to the Plaintiff This Court being assisted with Judges were clear of Opinion That the said Legacy was Debitum in praesenti solvend in futuro and decreed the said 50 l. to be paid to the Plaintiff with damages Fry contra Porter 21 Car. 2. fo 568. THat the Earl of Newport Will. deceased by his Will devised to the Plaintiff the Lady Ann the Messuage called Newport House with the Appurtenances thus viz I do give and bequeath unto the Lady Ann Countess of Newport my Dear Wife all that my House called Newport-House and all other my Tenements and Hereditaments whatsoever in Middlesex for her Life and after her decease I do give and bequeath the said House and all other my Tenements and Hereditaments as aforesaid to my Grandchild the Lady Ann Knowles the Daughter of Nicholas Earl of Banbury by the Lady Isabella my late Daughter and to the Heirs of her Body lawfully to be begotten Provided always and upon Condition that my said Grandchild the Lady Ann Knowles do marry with the consent of my said Wife and of Charles Earl of Warwick and Edward Earl of Manchester or the Major part of them And in case the said Lady Ann Knowles do and shall marry without the consent of my said Wife and the Major part of my Trustees aforesaid or shall happen to depart this Life without any Issue of her Body then I will and bequeath all the said premisses unto my Grandson George Porter Son of my deceased Daughter the Lady Ann late Wife of Thomas Porter Esq and to his Heirs for ever The Bill is to be Relieved against the Forfeiture of the said Estate for not performing the said Condition in the Will and Marrying against the consent of the Trustees and the Mother Yet the said Mother was told That the Plaintiff was about to marry and said nothing to the contrary whereupon the Plaintiff married and hath Issue The Plaintiff insisting That if any Error were committed in Marrying it was through Ignorance and not Obstinacy she the Plaintiff being very young and knew not of the Proviso or Condition in the said Will and it would be very unreasonable to make the happiness of the Plaintiff to depend upon the consent of Strangers in point of Marriage to put it into their power to keep her during her life either from Marrying or from her Estate and thereby make them Masters of her Affection or Fortune and to disinherit her and her Children But the Defendant insists That the Reason of inserting the said Proviso into the said Will was that the Plaintiff the Lady Ann might be disposed of in Marriage without disparagement and therefore that she should marry with the consent of the said Countess and the two Earls or the Major part of them and of that other Clause viz. That if she married without such Consent then he gave the said House and Premisses to the said Defendant George Porter the Infant and his Heirs for ever and that the said Lady Ann having Married a person very unequal to her Fortune and without such Consent as aforesaid having little or no Estate had made a wilful breach of the said Proviso or Condition in the said Grandfathers Will Lands devised on Condition the Devisee marry with consent and limitation over Devisee marries without Consent she shall not be relieved but the Land decreed to the remainder Man and the said George Porter claims the said House to him and his Heirs by virtue of the said Condition and Limitation over to him by the said Will the construction whereof is to be made out of the Will it self and not otherwise and the said Lady Ann had notice of the said Will before marriage there being discourse of it by the Trustees to her and so the Lady Ann ought not to be relieved against the said Forfeiture or Limitation aforesaid This Court with the Judges and on perusal of Presidents are clear of Opinion and fully satisfied That the Plaintiff ought not to be relieved against the said Forfeiture and that the same was such as ought not to be relieved in Equity and dismist the Plaintiffs Bill Vide this Case in Mod. Rep. p. 300. with Councels and Judges Arguments seriatim Shalmer contra Tresham 21 Car. 2. fo 560. THe Bill is to discover the Deeds of several Lands and whether they were not made in Trust and whether the Debt demanded by the Plaintiff were not mentioned in a Schedule thereunto annex'd The Defendant pleaded Bill to discover Settlements in Trust Plea That the Defendant is a Scrivener and had taken Oath not to discover the Secrets of his Clients Overruled That he was a Scrivener by Profession and hath taken the accustomed Oath that Scriveners do before they are made Free in London whereby he is obliged not to discover the Secrets of those persons business that employ him in that Trade without their leave and that he was employed by and assisted Sir John Langham in the purchasing of the said Lands and the Writings concerning the premisses he drew and hath the Keeping thereof by the said Sir Johns Direction and so ought not to discover the said Writings contrary to his Trust nor any thing relating to this Matter This Court declared That the Oath of a Scrivener doth not oblige from a discovery more than the Oath of any other Free man of London And if it had been in the case of a Counsellor at Law the said Plea had been Insufficient in this case and Overruled the Plea saving he is not to Answer to whom he paid the Purchase Mony Alford cont Pitt 21 Car. 2. fo 181. THe Plaintiffs Suit is Demurrer Remedy at Law Award to have the benefit of an Award To which the Defendant demurred and says That the Plaintiff ought to take his Remedy at Law This Court Overruled the Demurrer Langton al' contra Tracy Astrey 21 Car. 2. fo 376. THe Bill is to have the several Debts due to the Plaintiffs being Creditors of the Defendant Roberts paid The Case is viz. That Thomas
from this Defendant all her Lands and personal Estate which the Defendant had given her power to do and she died and for Non-payment of the said 400 l. per Annum the Defendant entred upon the Lands liable to the payment thereof and the Defendant hopes the said Decree shall not be Reversed The Plaintiff insists That the Title in Law in the Ladies Estate was in Trustees before her Marriage with the Defendant and so agreed to be continued without his intermedling therewith he bringing no Additional Estate to the said Lady and that there was no Fine levied to the Trustees or otherwise of her Estate of Inheritance Revocation of Uses and that the Uses upon the Recoveries were with power of Revocation in the Lady alone and that pursuant to such power by Deed 14 Car. 1. she Revoked the same and setled the same in Trust for such persons and their Heirs as she by her Will should appoint and that the said Tripartite Indenture and Decree did not discharge the Trust nor take notice of the Recoveries and that the said Lady in 1659. did appoint that her Trustees upon the said Recoveries shall convey part of her Land to the Plaintiff Solmes's Father and the Plaintiff Terrell and the rest to her Heir at Law and that in 1650. the said Land came first to be charged which was after the Ladies death and presently after there appeared Infancies which was the reason the said Decree was not sooner impeach'd This Court being assisted with the Judges Bill of Review dismist for that its a long time since the Decree was made and the Plaintiffs rested under it without any Complaint taking into Consideration the length of Time since the Decree was made and how long they were resting under it without any Complaint and that the Heirs have a benefit by the Ladies separate power of disposing who disposed accordingly by her Will. This Court with the Judges declared and are of Opinion that the said Decree grounded on the Tripartite Indenture 14 Car. 1. was and is a good Decree and ought to be performed and dismissed the Bill of Review White cont Ewens al' 22 Car. 2. fo 237. THis is upon an Appeal from a Decree Appeal from a Decree the Case being That Dame Ann Brett Relict of Sir Alex. Brett having a Joynture in the Manors and Lands of Whitstanton and Alexander her Son having on the Marriage with Elizabeth the Daughter of Sir William Kirkham agreed to settle 250 l. per Annum Joynture on the said Elizabeth but being disabled to do it by reason of Dame Anns Joynture he being seised only of 120 l. per Annum in Whitland and the Reversion of Yarkcombe the said Alexander agreed with the said Dame Ann That his Heirs Executors or Administrators should pay yearly after his death to Sir Humfry Lind and George Brett 250 l. per Annum during the said Dame Anns life if the said Elizabeth should so long live and thereupon the said Dame Ann Joyned with the said Alexander in a Grant of a Rent-charge of 250 l. per Annum out of Whitstanton for the Joyture of Elizabeth and Alexander 12 Jac. 1. demised Whitland and Tarkcombe to Lind and Brett the said Trustees for an hundred years to commence immediately after such time as the Heirs Executors or Administrators of Alexander should fail to pay the said 250 l. per Annum to the said Trustees during the life of the said Elizabeth That 15 Jac. 1. the said Alexander died and there being a failure of payment of the 250 l. by the Children Executors c. of the said Alexander to the said Elizabeth or to the Trustees for the use of the said Dame Ann the said Dame Ann paid the same out of Whitstanton and thereby the said Lease of 100 years of Whitlands and Yarkcombe did commence and thereupon she entred and received the Profits of Whitlands and the said Dame Ann paid the 250 l. during the life of the said Elizabeth That the said Alexander leaving three Children viz. Robert Mary and Ann wholly unprovided for and by Agreement the said Dame Ann was to pay 80 l. per Annum for the said Childrens Maintenance from the death of the said Elizabeth their Mother and that the said Dame Ann and her Trustees should assign the said Lease of 100 years to the said Children when at Age. That 17 Jac. 1. the said Lease was assigned to the Children to commence from 1636. that the said Dame Ann paid the said 80 l. per Annum maintenance which with 1750 l. she had paid to the said Elizabeth amounting to more than the Value of the said Lease of Whitlands whereof she received the Profits till about 1636. the said Mary one of the Children being dead and that the Defendant Ewens having married Ann the other Daughter they and the said Robert Brett the Son held the said premisses as Joynt-tenants by virtue of the said Lease but the said Robert Brett receiving more of the Profits than his share the Defendant Ewens and his Wife sued out a Writ of Partition in 1654. Partition a Moiety was delivered to the Defendant Ewens and Judgment given that the same should be held in severalty and the Defendant Ewens 12 Car. 2. for 132 l. Fine and 20 l. per Annum demised part thereof to the Defendant Nurse who assigned to the Defendant Rutland That the Plaintiff White insisting That Robert Brett acknowledged a Judgment to Richard White in 1644. extended the Defendants Moiety and brought an Ejectment and got a Verdict by surprize since which the Defendant brought an Action and obtained a Verdict whereupon the Plaintiff exhibited this Bill and hath stayed the Defendants by an Injunction To have an account of the Profits received and a Lease 12 Jac. 1. being 20 years since is contrary to the Limitations and Rules both at Law and Equity The Plaintiff insists He is now in the place of the said Robert but in a better condition his said Judgment under which he claims being long since Extended in the life time of the said Richard White and Robert Brett and before any Action brought and if the said Lease be satisfied the same ought to be set aside And to take off the length of Time insists That by a Decree made in the Court of Wards in 1640. the Defendants were to account with the said Robert Brett and the Plaintiffs Father Richard White really lent the said Mony for which the Judgment was got and in 1646. on Extent had a Moiety of Whitlands delivered and that notwithstanding the Lease to the three Children the Lady Ann had possession of Whitlands till 1637. The Defendants insist That the Lady Ann paid 1750 l. and 80 l. per Annum during the Minority of the Children which is more than the Value so look'd on her self an absolute Owner and disposed of the said Lease whereof the said Robert had a Moiety Lease to commence after failure of payment
to the Administrator This Court declared And the benefit of the Trust belongs to the Executor or Administrator That both in Law and Equity the benefit of the Trust in such case doth belong to the Executor or Administrator but the Plaintiff Hunt having married the said Plaintiff Mary and claiming in right of her who is Administratrx to her former Husband Edward Palmer the Court thought it hard that by virtue of the said Administration she should carry away the Estate to her second Husband and thereby strip the Infant thereof from whose Father the Estate first moved and it not appearing that the Ecclesiastical Court when they granted the Administration took any Consideration for a distribution to be made for a provision for her this Court would consider of the Case and also of the Limitation and Consideration of the said Deed and deliver their Opinion This Court being assisted with the Judges it appearing that the Interest and Estate of the Terms and the Trust and Benefit thereof is by the death of the said Edward Palmer and his Mother come to the Plaintiff Mary for her life and there being but 30 years of the said Term to come and in regard the Ecclesiastical Court cannot make a distribution of the remainder of the Terms not knowing but that the said Mary may live till the Expiration thereof This Court directed the Defendant Jones to assign and transfer the premisses and all his Interest therein The Trustee decreed to assign to the Admistratrix c. in the said Terms to the Plaintiff or such as they should appoint Darrell contra Whitchot 20 Car. 2. fo 516. THe Plaintiff had a Trust in a Lease of a Coal Farm by Patent from the late King Trust which Lease was afterwards renewed by the King and other Trustees named therein and the Defendant being one of the Trustees insists he was a joynt Patentee for the valuable Consideration of 500 l. But the Plaintiff insists The Defendant comes in as the Plaintiffs Trustee and not to be subject to the same Trust in the New Lease as he was under the Old Lease But the Defendant insists The New Patent was to the New Trustees for Service done by them to this King and this Defendants 500 l. and this Defendant was not Trustee for the Plaintiff but was in for his own use which Patent this Defendant had pleaded and was allowed Yet the Plaintiff insisted An Old Trust continned upon a new Lease or Patent No Tenant Right against the King There was a continued Trust and the Defendant and the King declared he had a respect for the Old Tenants and the Defendant coming in under the Tenants Interests ought to be in Trust for the Plaintiffs and that tho' there be no Tenant Right against the King yet the King did consider the Tenants and that this Case is but the same with that where a Mortgage or Trustee renews a Church Lease Mortgagee or Trustee renewing a Church-Lease the Cestuy que Trust relieved Bill dismist in which Cases this Court had given Relief This Court with the Judges declared their Opinion That there was no ground at all to Relieve the Plaintiff and so dismissed his Bill Episcopus Sarum contra Nosworthy 23 Car. 2. fo 720. THis Case is touching a Rent of 67 l. per Annum reserved on a Lease of Lands made by John late Bishop of Exon to the Defendant Arrears of Rent and the Plaintiff by his Bill says the Defendant never paid the said Rent to the Plaintiff nor any part thereof during all the time he was Bishop of Exon which was for 6 years whereby a great Arrear is incurr'd and due to the Plaintiff from the Defendant for which the Plaintiff seeks Relief The Defendant insists That he directly tendered the said Rent to the Bishop while he was Bishop of Exon but he refused the same having an intention to impeach the said Defendants Estate and now the Plaintiff is Translated to another See and so he ought not in Law or Equity to demand the said Arrears but ought to be debarred from receiving the same by his refusal as aforesaid His Lordship was clear of Opinion that by Law the Plaintiff could not recover the said Arrears but how far the Plaintiff was relievable in Equity was the question and his Lordship ordered Presidents to be produced where there hath been a Just duty but no Legal remedy and ordered a Case to be stated It appearing that the Plaintiff Upon refusal to accept of Rent no Relief in Law or Equity for the Arrears while he was Bishop of Exon would not accept the said Rent his Lordship with Judges assisting him were clear of Opinion That there was no ground in Equity to give the Plaintiff any Relief and dismist the Bill Barthrop contra West 23 Car. 2. fo 744. THe Plaintiffs Suit is to have the benefit and equity of Redemption of Leases mortgaged Assets and other Trust Estates made liable for the payment of his debt being on Judgment for 2000 l. and to have a voluntary Deed of Trust set aside as against the Plaintiff This Court decreed the Plaintiff to have the Equity of Redemption to be liable Equity of Redemption Assets and as Assets to satisfie his said debt of 2000 l. and set aside the said voluntary deed of Trust and all Trust Estate and Surplus thereof after preceding debts paid to be Assets in Equity for the payment of the Plaintiff Hooker contra Arthur 23 Car. 2. fo 523. THe Defendant having recovered damages for breach of a Covenant in a Lease at Law but the Plaintiff insists That there is not so much damages due as the Defendant hath sworn in his Answer therefore the Plaintiff hopes this Court will reimburse him what is overpaid to the Defendant This Court declared they would not try nor ascertain the damages in this Cour The Court of Chancery will not try or ascertain damages recovered at Law but ordered the parties to Law on the Covenant Domina Kemp contra Kemp 23 Car. 2. This is on a Case stated viz. THat upon Articles of Agreement between Sir Robert Kemp and Thomas Steward Devise the Plaintiffs Father upon the Marriage of Sir Robert with the Plaintiff it was agreed 500 l. Marriage portion should be paid unto Sir Robert or his Executors and in consideration thereof the said Sir Robert should settle a Joynture of 200 l. per Annum on the Plaintiff his wife and if the said Sir Robert should dye before such Joynture settled then he was to have Lands chargeable with the Plaintiff Dower which should fully recompence the 200 l. and that Sir Robert by his last Will devised to the Plaintiff a Rent-charge of 200 l. for her life to be issued out of the Mannor of Spenishall and Lands thereto belonging and of certain Farms called Lininlts and Mortimore and Ravels and the Frywoods in full satisfaction of the said Articles and all
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
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
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
Cutler 30 Car. 2. fo 285. THe Testator deviseth Lands to be held by his Executors Will. Lands devised to be held by Executors till his Son attain 22 years Son dyes before 22 Executors decreed to hold the Lands till the said 22 years till the Testators Son attained 22 years of Age for maintenance of the Executrix and her Children that the said Testators Son dyed before 22 years of Age. This Court decreed the Executrix to hold the Lands against the next Heir until the said Sons Age of 22 years as if the said Son had lived to 22 years and the Plaintiffs debt on Bond to be paid by the next Heir or the reversion to lye liable and charged therewith Jolly contra Wills 30 Car. 2. fo 523. THat Roger Garland Elder Brother Will. Devise of Goods to J. S. for 11 years the remainder over J.S. decreed to deliver the Goods after the 11 years by Will did give unto John Wills the Defendants late Husband the use of all and singular the Goods Plate c. whatsoever then in his House for Term of 11 years from his death and after the 11 years expired he gave the same to his two Nephews Robert and Roger Garland and to his Niece Elizabeth the Plaintiff to be equally divided amongst them and after the 11 years the said Wills was to deliver them to the Plaintiff The Defendant Wills insists that by the bequest of the said Goods for the 11 years she and her Husband to whom she is Executrix are well intituled to the property of them and that the Devisour is void in Law and Equity This Court decreed the Defendants Will to deliver the goods to the Plaintiffs to be divided according to the Will the said 11 years being expired German contra Dom Colston 30 Car. 2. fo 741. THis Court decreed Legatees to refund to make up Assets that in case hereafter any Debt of Sir Joseph Colston should be discovered and recovered against his Executors the Legatees of Sir Joseph Colston are to refund in proportion what they have received for or towards their Legacies to make up Assets for satisfaction thereof Cotton contra Cotton 30 Car. 2. fo 71. 282. THat Nicholas Cotton being seized in Fee of Copyhold Devise and Free hold Lands in Middlesex and Surry of 500 l. per Annum in 1676. dyed without Issue wherebythe same descended to the Plaintiff as Couzen and Heir to the said Nicholas but the Defendant Katherine Cotton pretends that the said Nicholas Cotton made his Will in Writing 25 years since viz. in 1650. having first surrendred the said Copyhold Land to the use of his Will and bequeathed the same to the said Defendant Mrs. Katherine Cotton his Relict and her Heirs but if such Will were the said Nicholas purchased some Lands since which descended to the Plaintiff and that the said Nicholas a little before his death contracted with Sir Thomas Lee and his Trustees for certain Copyhold and other Lands in Sunbury and was to pay 1110 for the same and paid most of the Mony in his Life-time and had possession The Defendant Mrs. Cotton insists that Nicholas Cotton her late Husband deposited in the Hands of the said Sir Thomas Lee or his Trustees 600 l. designing to purchase the said Land in Sunbury but her said Husband Cotton was to have interest for the said Mony and he only rented the said Sunbury Lands and not purchased them because a good Title could not appear but insist that after the death of her Husband she purchased the premisses and paid 320 l more then the 600 l. paid into the said Sir Thomas Lee's Hands and that her Husband by the said Will devised to her all his Real and Personal Estate and made her Executrix This Cause being now heard by Mr. Articles for a purchase and 600 l. paid but interest was paid for it till the Conveyance executed contractor dyes before any conveyance the 600 l. was part of his personal Estate Justice Windham who on reading the Articles between the said Nicholas Cotton and the said Sir Thomas Lee whereby the said Nicholas Contracted with him for the purchase of his Free and Copyhold Lands in Sunbury in Fee simple for 920 l. is of Opinion that the said Nicholas dyed before any Conveyance made by the said Sir Thomas Lee of the said premisses to the said Nicholas and the said Sir Thomas paying Interest for the said 600 l. and the said Nicholas paying Rent for the said premises the said 600 l. at the death of the said Nicholas was part of his personal Estate and as to that 600 l. could not relieve the Plaintiff but difmist the Bill And as to the Morgage made to Perkins by the said Nicholas and the Defendant his Relict it appearing that part of the Morgaged Lands was before that Morgage made Equity of redemption to whom belongeth setled on the said Nicholas and Katherine in Joynture or otherwise so as the same came to her as Survivor this Court is of Opinion that the Equity of Redemption belongs to her as survivor and not to the Plaintiff But as for the other part of the Mortgaged premisses and other matters in the Plaintiffs Bill for which he seeks relief as Heir The question being whether any republication were of the said Nicholas his Will Republication of a Will and whether the same Lands do belong to the Plaintiff as Heir or to the Defendant Katherine as Devisee by force of the said Will. This Court referred that point to a Tryal at Law upon this Issue whether the said Nichelas Cotton did by his said Will devise the said Lands in Shepperton in the Defendants answer mentioned to be purchased by the said Nicholas Cotton of one Rowsell in Fee in 1659. to the said Katherine or not A Tryal at Law having been had upon the point aforesaid a Special Verdict was by the Lord Chief Justice North's direction sound Lands decreed to the Devisee and on a Solemn Argument before all the Judges of the Common Pleas they unanimously gave Judgment for the Defendant that the Lands in question did belong to the Defendant Katherine as Devisee by the said Will. This Court confirmed the Judges Opinion Civil contra Rich 30 Car. 2. fo 338. THat Sir Edwin Rich made his Will whereby he after some Legacies gives and Bequeaths all the residue of his Estate both real and personal to Sir Charles Rich his Heirs and Assigns for ever and maks him Executor of his Will and in his Will says he left his Estate as aforesaid in Trust with him wherewith to reward his Children and Grand-children according to their demerit This Court declared A general Trust in a Will for Children and not a fixed Trust to create a certainty of right That as to Sir Edwins Estate taking the words of the Will of the said Sir Edwin as they were they could amount to no more than a general Trust in Sir
Charles to reward such of his Children and Grand children as they should demerit and as Sir Charles should think fit and not an absolute fixed Trust to create a certainty of right or in terest as to any certain Proportion in any of the Children or Grand children much less in the Plaintiff Civil Rich who demands the greatest part of the Estate and that it was in the Grandfathers power to give the said Estate or what Proportions thereof as he pleased to any of his Children or Grand-children but whatever of the real Estate of Sir Edwin was disposed or setled by the said Sir Charles by act Executed in his Life time or was devised or given by the Will of the said Sir Charles the Plaintiff not to be releived but dismist the Bill Boeve contra Skipwith 30 Car. 2. fo 140. THe Bill is a Suplemental Bill A Supplemental Bill for a further discovery to have a further discovery from the Defendant by way of Evidence for the better clearing the Matters depending on the Account which the Defendant hath not answered in the former Cause The Plaintiff pleaded the former Bill to which the Defendant answered and the Cause heard and the Account directed This Court ordered the Defendant to answer to all Matters in this Bill not answered to in the former Cause but the Plaintiff not to reply nor to proceed further Dom. Grey al' contra Colvile al' 30 Car. 2. fo 397. THe Plaintiff the Lady Greys Bill is to be relieved for a debt of 1500 l. and Interest on Bond Lands purchased in Trust decreed Assets to to pay Judgment wherein John Colvile did bind himself and his Heirs to repay the same unto the Plaintiff her Executors and Assigns that the same might be paid out of the Lands which were purchased by the said John Colvile with his own proper Mony in the names of himself and the Defendants Wife to hold to them two for their lives and then to the Heirs of Colvile and the rest were purchased in the names of the said Defendants Morriss and Saunders in Trust for the said John Colvile and his Heirs That soon after and before the 1500 l. was paid the said John Colvile died and the right and equity of the premisses during the life of the said Defendants Wife is in Josia Colvile and the Reversion in Fee after the death of the said Wife will descend to the said Defendant Josia Colvile as Son and Heir of the said John Colvile and the profits are received by him or for his use that the said John Colvile dying intestate Administration is granted to Dorothy his Relict who pleads she hath no personal Estate whereupon the Lady Grey commenced a Sute at Law by filing an Original for her said debt against the Defendant Josia as Son and Heir of the said John Colvile and hath got Judgment thereon to have satisfaction for the said debt out of the Reversion of the Lands of John which descended in Fee to the said Defendant Josia Colvile and ought to have satisfaction accordingly but the said Defendant Josia pretendeth he hath nothing by descent in present but the Reversion of the Lands purchased in the names of John Colvile and his Wife after the death of his Wife whereas he and the other two Defendants were only Trustees for John Colvile and his Heirs and their Trust being now come to the Defendant Josia they are liable as Assets in equity for satisfaction of the Plaintiffs debts and the Plaintiff ought to be let into the immediate Possession and the said Josia also insists That the premisses are incumbred by a former Judgment of one Lease for 800 l. and the Plaintiffs Creditors and other the Creditors in their Suit seeking relief against the same Defendants upon the same Trust and Equity and to have their debts paid out of the said Lands they insisting they are Creditors by Judgment grounded on Original of the same day and date with the said Lady Grey and ought to be satisfied in equal degree and time The Plaintiffs Creed and the other Creditors insist Judgments to Attach Lands according to priority of Originals That they for so much as the Estate in Law of Wise is in the Heir that their Judgments ought to Attach the Lands according to priority of Originals and tho' the said Leke have obtained a Decree prior to the Creditors in these Suits yet the same is to be subject to the direction of this Court and ought not to take place but according to the Date of their Originals This Court it being admitted by all that the Original on which the said Lekes Judgment is grounded is prior to all the other Creditors Originals and that the Plaintiff the Lady Grey and Creeds Originals are next in priority and bear the same date one with another and ought next to be satisfied with other Judgments who Originally bear the same date declared that the Estate purchased in the Names of the Defendants Wise as aforesaid was a Trust for life attending the Reversion and so liable to make the several Plaintiffs Satisfaction for their Debts and should be enjoyed by the Plaintiffs against the said Wise and Josiah Colvile the Heir and the Court decreed that if the Estate of Wise as aforesaid were not sufficient then the said Reversionary Lands purchased in the Names of the said Morris and Sanders after the death of Sir John Tufton who hath an Estate for life in the said Lands should go towards Satisfaction of the said Debts Carr contra Bedford 30 Car. 2. fo 64. THe Bill being Will. that Edmund Arnold having no Child by his Will whereof he made the Defendant Bedford Executor gave several Legacies to several persons and uses and gave all the rest and residue of his Moneys and Personal Estate after Debts paid to and amongst his Kindred according to their most need to be distributed amongst them by his Executors saving such Legacies as should by his Will or any Codicil further dispose of and the Testator afterwards by Codicil gave other Legacies and desired that a care and regard should be had to the Plaintiff John Buncher The Defendant the Executor insists that he not knowing to what degroe of Kindred the bequest of the said residue ought to extend he had annexed two Schedules of Remorest Kindred and is advised until their several Claims were examined and setled by this Court he could not safely make a distribution This Court taking into consideration Devise after Debts and Legacies paid the Residue amongst his Kindred according to their most need this to be extended according to the Act for better Settlement of Intestates Estates to what degree of Kindred the Testator's bequest of the residue of his Personal Estate to his Kindred of most need could extend that the Act of Parliament for better setling Intestates Estates was the best Rule that could be observed as to the Limiting the extent of the word Kindred and
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
and paid unto them and secured unto them by the Defendant Charles the only Son and Heir of the said Sir William The Defendants Charles Elizabeth Mary Brook and Abigal Hodges insist that Sir William in his Life time upon his second Marriage with the said Plaintiff Dame Jane the Defendants Charles Elizabeth and Mary Brooke being the Issue of the said Sir William by a former Venter by deed setled a great part of his Estate in Trust for the said Dame Jane as her Joynture wherein provision was made whereby the said Plaintiff Jane his Daughter was to have 3000 l. out of his Estate for her Portion and that Sir William declared he intended her no more and that the Defendants Elizabeth and Mary Sisters of the whole Blood to the Defendant Charles should have their Portions out of his Estate made equal with the portion provided for the Plaintiff Jane the Infant as aforesaid and that the 9000 l. to be raised by the Defendant Charles was for all his Sisters Portions including the said Plaintiff Jane the Infant but over and above the said 3000 l. provided for her by the said Settlement and hope this Court will not think it reasonable that the Estate of the Defendant Charles shall be charged with the payment of 6000 l. for the Plaintiff Janes portion which Sir William never intended to be above 3000 l. and insists that the Plaintiff Jane being Sister by the second Venter ought not to have two 3000 l. and they but one 3000 l. who are Sisters of the whole Blood to the said Charles and insist that the said Will was only in affirmation of the said Settlement and that the said Sir William had no great Fortune with the said Dame Jane The Plaintiff Dame Jane and Jane her Daughter insist that by the said Settlement on Marriage with Dame Jane to Sir William there was a provision for Issue Males and if more then a provision for 3000 l. for Issue Females by which the Plaintiff Jane the Daughter claims 3000 l. And then Sir William by his Will devising 9000 l. to be raised out of his Lands for his Daughters Portions viz. 3000 l. apiece not excluding the said Jane she is as much thereby intituled to a third part of the Estate devised as her Sisters are to 3000 l. apiece and there was a good Reason for such double Portion for Jane the Daughter in respect the said Dame Jane did bring to Sir William 500 l. per Annum Joynture and 1000 l. in Mony and although Dame Jane had before her Marriage a separate Maintenance of 250 l. a year out of the said 500 l. per Annum yet it was paid to and received for the use of the said Sir William and Sir William often declared it should be made up to her Child or Children This Court on reading the Marriage Settlement and Will Upon the Construction of a Marriage Settlement and Will only one Portion decreed of 3000 l. and not 6000 l. by which it appeared that the said Will did operate as well upon those Lands in possession as those in Reversion declared there was no proof of any Intention of Sir William the Father to make a double Portion for Jane his Daughter by a second Venter and therefore the Plaintiff Jane the Daughter ought to have but one 3000 l. but that she ought to have it in the first place whether the Lands in present possession devised and the said Reversion which are liable to the said Will be sufficient or not to raise the whole 9000 l. viz. 3000 l. to the Plaintiff Jane and 6000 l. to the Defendant by the first Venter and decreed accordingly Stewkley contra Henley 31 Car. 2. fo 567. THat Sir John Trott deceased Will. being seised in Fee of a Rent charge of 200 l. per Annum but subject to a Redemption on payment of 3400 l. by his Will in 1670. devised the said Rent to Trustees and their Heirs and all benefit thereof on Trust that they should suffer Katherine his Daughter then the Plaintiffs Wife and since deceased her Heirs and Assigns to receive the same to her and their own proper use That shortly after the Grantor of the said Rent charge redeemed the Rent-charge by payment of the 3400 l. to the Plaintiff Stewkley and his said Wife Dame Katherine whereupon they came to an Agreement by Deed touching the said 3400 l. viz. as to 1400 l. thereof should be paid to the Plaintiff he conveying Lands to Trustees to answer the Interest of the said 1400 l. to the said Dame Katherine his Wife in such manner as the said Rent-charge was payable by her Fathers Will and with further power of Appointment in Dame Katherine to direct the payment of any part of the said 1400 l. by her Deed or Will or other Writing under her Hand and Seal to the Plaintiff or Children of the Plaintiff and the said Dame Katherine and as to the remaining 2000 l. it was agreed it should be put out at Interest which Interest and such part of the Principal as the said Dame Katherine should by Writing under her Hand and Seal was to be paid by the Trustees as he should appoint and for want of such Appointment or as to so much as should not be appointed in case she did not survive the Plaintiff her Husband then to her Heirs and Assigns in such manner as the said Rent-charge of 200 l. per Annum was demised to her as aforesaid which 2000 l. was put out accordingly That about 1679. Dame Katherine died without making any demise or appointment at all she knowing the Defendant Charles Stewkley her Son was well provided for so to have the said 3400 l. out of the Trustees hands is the Plaintiffs Suit The Plaintiff insisting A Rent-charge in Fee subject to Redemption devised the Mortgage-Mony is paid Decreed the Administrator to have it and not the Heir That the said 3400 l. was a Personal Estate or a Chose en Action belonging to the said Dame Katherine and so belongs to the Plaintiff as her Administrator But the Defendant the Trustees and the Heir insist That the said Mony belongs to the Heir the said Dame Katherine making no Appointment thereof This Court declared That the Matter in demand was originally a Mortgage and if it had not been Redeemed in the Ladies life time it would have gone to her Administrator and the Lady having made no Appointment other than the said Deed as to the 1400 l. and having only appointed that the 2000 l. should go as the Rent charge of 200 l. per Annum by Sir John Trotts Will should have gone which being once a Personal Chattel and not descendible the operation of Law could not be controlled but that it ought being a Personal Estate to go according to the course of Law to the Plaintiff he being Administrator the rather for that the Heir is amply provided for otherwise his Lordship declaring that the Lady Stewkley
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
Tenant to the Precipe and Sir Henry declared the said Recovery to be to the uses in the said Agreement and the Plaintiff Ring by his said Deed Covenants with the said Sir Henry to stand seized of the Parsonage and other Lands in Yeovel in Com' Somerset and also in Com' Dorset being all the Estate he was then seized of in Fee in the said Counties and settles them to the uses in the said Agreement Agreement That the said Sir Henry declared himself well satisfied with what he had done and paid the charges of the Writings That the Plaintiff Ring two years after had Issue Male and Sir Henry after married and died without Issue and without making any Joynture or suffering any other Recovery and doing any other act but selling the Inheritance of one Farm so the premisses came to the Plaintiff Ring who entred but the Defendant Hele the only Son of Richard Hele who was Uncle of the said Sir Henry wrought on Sir Henry to make a Will and to Devise the Estate to the Defendant Hele and his Heirs which Devise the said Sir Henry would not make The Defendant insists That the Settlements on the Plaintiff Ring were Forged and that the said Ring never made any Settlement of his Estate on the said Sir Henry or if he did that nothing passed thereby but only by way of Covenant to stand seised and that if the Plaintiff Ring hath got any such Deed to lead the uses of the said Recovery he got it by Fraud and that if there was such a Deed of May 1673 which was after the Recovery to declare the uses thereof it would not alter that of the 26 of March for that the Plaintiff is a Stranger in Blood to the said Sir Henry and it doth not appear that any Inrolment or due Execution was made of the Plaintiffs Rings Settlement so that the pretended Deeds on both sides are void and not to be supported in a Court of Equity but the Plaintiff Ring may bring an Action at Law where it is proper to be tryed and where the Defendant having a good Title under the Will of Sir Henry will make his defence The Plaintiff insisted That the Defendant objected two matters against the Plaintiff Rings demands viz. Forgery and Fraud and if he will insist on the Fraud he must admit the Deeds to be executed and the Defendant admitting de bene esse the Deeds to be executed and to insist only on the Fraud and Circumvention This Court inspecting the said Deeds declared there was great suspition of the reality of the said Deeds but taking into consideration the inequality of the said Estates in the value though not material in this case yet it was a strong presumption that the said Sir Henry Hele did not knowingly leap into such a bargain and then the inequality of assurances is as bad the said Sir Henry Heles Settlement on Ring being a legal Estate Consideration and mentioned to be in consideration that Ring had made a good Settlement of his Estate which he had not the same being void in Law and not to be made good by Equity and the subsequent inconsistent Acts of offering the Estate to be sold and Rings negotiating the affair were above all the rest bad and apparent Badges of Fraud and Circumvention in Ring Badges of Fraud in obtaining the said Deeds from the said Sir Henry Hele and it is remarkable in the Case that Sir Henry by his Will devised his Estate to the Defendant Hele a little before his death This Court therefore dismissed the matter of Rings Bill but upon Heles Bill decreed the Agreement of April and the two Deeds of May 1673 obtained by the said Ring from Sir Henry be for ever hereafter damned and set aside and Ring to reassure to the Defendant Hele and a perpetual Injunction not only to stay all Suits at Law touching the premisses but also for quieting the said Hele in the Posession Com' Craven al' contra Knight al' 34 Car. 2. fo 732. THe Bill is that the Defendant Geo Bankrupts as to partners Widdows being indebted to the Plaintiffs became bound to them in several Bonds and the said Widdows and the Defendant Berman for several years past were Copartners and Widdows by Articles of Copartnership was intituled to two thirds of the whole Stock and the Defendant Berman to one third That the said Widdows and Berman the 25 of August last became Bankrupts and a Commission of Bankrupsy awarded against them the Commissioners of Bankrupts assigned all the Estate of the said Bankrupts to the Defendant Wright and others and refuse to let the Plaintiffs Creditors of Bankrupts to come in and intend to divide the said Estate amongst the Joynt Creditors of Bankrupts by reason whereof the Plaintiffs debts will be utterly lost The Defendants insist Joynt debts to be paid out of the Joynt Stock it was agreed by Indenture of Copartnership that all such debts as should be owing on the joynt account should be paid out of the Joynt Stocks and at the end of the Partnership each Copartner take and receive to his own use his share of Joynt Stock and the Joynt Stock and Trade should not be charged with the private or particular debts of either of the said Partners but that each should pay their private debts out of their particular Estate not included in the said Joynt Stock that if both the said Partners should be living at the end of the first three years of the six years that the said Berman should come in Joynt-Partner accordingly and during the Joynt Trade the said Copartners became Joyntly indebted to the other Defendants Wright c. in 6000 l. and that Widdows became indebted to the Plaintiff as aforesaid without the consent of Berman and the Moneys due on the said Bonds was not brought into the account of that Joynt Stock and the said Widdows was only a Surety and received none of the Moneys and the Defendants insist that the Joynt Creditors ought to be first paid out of the Estate in Partnership and that the Commissioners have no power to grant the Joynt Estate to pay the Plaintiffs they being separate Creditors of Widdows and if a Surplus of the Joynt Estate after the Joynt Creditors be paid then the Plaintiffs can have but a Joynt Moiety of such Surplus towards their Satisfaction the said Bermans Moiety being not liable to pay the said Widdows separate debts and the debts then claimed were the proper debts of the said Widdows and that after all the Joynt debts are paid there will be an Overplus so that thereby the said Berman will be discharged and have Money paid to him but if the Plaintiffs and other separate Creditors of Widdows be admitted to the Joynt Estate there will not be sufficient to pay the Joynt Creditors so thereby not only Bermans Estate will be applyed to pay Widdows debts Separate Creditors but will be liable to the
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 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
the Plaintiff and the Heirs Males of his Body That Thomas the Plaintiffs Father died leaving Issue Male only Earl William and the Plaintiff and Earl William is dead leaving Issue Male only the last Earl Thomas the Plaintiffs Nephew and the said last Earl Thomas upon his marriage with his now Wife levied a Fine and suffered a Recovery but not with intent to defear the Remainder to the Plaintiff but only to settle a Joynture and several Deeds were executed leading the Uses by which there was a Remainder in Fee reserved for the Plaintiff for want of Issue Male of the last Earl Thomas and the said last Earl Thomas to the intent the Reversion of the premisses should come to the Plaintiff and the Heirs Males of his Body did for 300 l. convey the said premisses to the use of the last Earl Thomas for life and in case of failure of Issue male of his Body to the Plaintiff and the Heirs males of his Body with Remainders over That Earl Thomas the Plaintiffs Nephew coming over into England and getting acquaintance with the Defendant Muschampe and being in want of Mony the said Muschampe lent him 100 l. and for Security he prest the said Earl to make it out of his Estate in Ireland and the said Defendant having the drawing the Security brought the said Earl some Writings ready to be executed of which the said Earl had no Copies or Counterparts neither did he give time to peruse the same and the said Earl relying on the Defendants Integrity Sealed the same believing the said Security to be void on payment of the said 100 l. as the Defendant affirmed it should but the said Deeds being made to settle on the Defendant a Rent charge of 300 l. per Ann. to his own use which being done by Fraud there ought to arise a Trust which ought to go and be enjoyed by the Plaintiff according to the aforesaid Settlement made on the Plaintiff and the Plaintiff is willing to pay the Defendant whatsoever Sum of Mony he hath really lent or paid to the said last Earl Thomas with Interest The Defendant insists That the said last Earl Thomas by Deed in 1675. for 300 l. per Annum and other Considerations granted to the Defendant a Rent-charge of 300 l. per Annum without any deduction to be issuing out of the Estate in Ireland to be held by the Defendant and his Heirs and to commence at such of the Feasts as should first happen after the death of the said last Earl of Arglas without Issue male with power to distrain and a Proviso That if the said last Earl should during his life time have or at his death leave Issue male which do attain to the Age of 21 then the said Grant to be void and of the said 300 l. there was at one entire payment 180 l. paid to the said last Earl and the Defendant hath a Receipt for the said 300 l. and says the Deed was fairly executed and made without any fraud or practice and insists That the said Grant of a Rent-charge was on a Contingency so uncertain that 300 l. was a sufficient Consideration for the said Grant which 300 l. was paid thus viz. 100 l. after the Agreement and before the Conveyance of the said Rent charge and 184 l. to the said Earl the same day the Conveyance was executed and the said Mony was paid as Purchase-mony and not as Mony lent and the said Earl approved of the said Conveyance though he had no Copy and after the said Defendants purchase of the Rent-charge and since the exhibiting of this Bill the said Earl Thomas hath given the Defendant a general Release under Hand and Seal wherein is declared that the Bill is exhibited against the Defendant contrary to the said Earls direction and disallowed all further proceedings thereon against the Defendant This Court upon reading the said deeds and several presidents in this Court as well in the Reigns of Queen Elizabeth King James King Charles the first as in his now Majesties Reign where relief hath been given against Over reaching Bargains and Contracts made by young Heirs and taking into consideration the Circumstances of this Case it appeared to him That Thomas Earl of Arglas at the time of this bargain was very young and of an easie nature and had forsaken his Wife and Friends and came to London where he lived in Riot and Debauchery and for the supply of his Expences therein was this bargain made wherein it doth not appear he took the Advice of any Friends or Councel but relyed wholy on the Defendant That the consideration of this grant is very small being but one years purchase for a Rent-charge in Fee-simple which is now hapned in possession and the over-value be it never so great is not of it self sufficient ground to set aside a bargain Fraud or not or whereupon this Court can presume fraud Yet it is a great evidence of fraud where there are other Circumstances concurring as there is in this Case And whereas the Defendant insisted that the Contingency of the death of a young Man without Issue Male was so great that it cannot be esteemed an over-value such a Reversion not being worth one years purchase His Lordship declared He looked upon it as an Artifice of the Defendant for it was easie to perswade the Earl Thomas who could not judge of his own defects that the Defendant had the worst of the Bargain Whereas it is not likely the Defendant would have made it but that he thought Earl Thomas would in a short time destroy himself by his Vitious and Debauched course of life and his Lordship was of Opinion the Defendant had Circumvented the Earl Thomas in this bargain and concluded upon the whole matter that the Plaintiff ought to be relieved in this Court A proper Bargain tho' over-reaching especially upon a Contingency relieveable but not to the damage of the bargaince and the Release made by Earl Tho. without any consent after the Settlement made upon the Plaintiff ought to be no Bar thereunto but in as much as his Lordship found by the presidents that in such cases This Court doth not turn any loss upon the Defendant but only correct the Excess and Extravagancy of such bargain Therefore his Lordship thought fit the 300 l. should be restored to the Defendant with consideration for the same at 6 l. per Cent. and on payment thereof the Defendant to convey the said Rent-charge of 300 l. per Annum and all his Title Interest and Demand in the premisses to the Plaintiff and granted a perpetual Injunction not only to stay all proceedings at Law but for quieting the Plaintiff his Heirs c. in the possession of the premisses Langton contra North al' 35 Car. 2. fo 95. THat Sir Robert Gouning Deceased Marriage Settlement being Seized of Lands and a great Personal Estate upon a Marriage to be had between him and the Defendant
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
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
should Marry in his Fathers life time then he should from such Marriage during his Fathers life pay the Defendant Interest for the 2500 l. And the Defendant insists That if the said Plaintiff dyed before his Father the Defendant had lost all his Mony This Cause being first heard by my Lord Finch 9 Feb. 33 Car. 2. who then upon reading the said Defezance declared That as this Cause was he could not releive the Plaintiff otherwise then against the penalty and decreed the Plaintiff to pay to the Defendant 2500 l. with Interest This Cause was Re-heard by my Lord Chancellor Jeffreys the Plaintiff insisted That he had by order of this Court 5300 l. upon the said Judgment and that the late Lord Chancellor and Lord Keeper had frequently releived against such fraudulent and corrupt bargains made by Heirs in their Fathers life time and that there was not any real difference where the contract is for Mony and where it is for Goods This Court on reading the Defezance declared it fully appeared The Heir relieved against a concontingent contract made in his Fathers life time because it seemed unconscionable That these Bargains were corrupt and fraudulent and tended to the destruction of Heirs sent hither for Education and to the utter Ruin of Families and as there were new Frauds and subtle contrivances for the carrying them on so the relief of this Court ought to be extended to meet with and correct such corrupt Bargains and unconscionable practices and decreed the former order to be discharged and the Plaintiff to be restored to what he hath paid over and besides the Principal Mony and Interest Durston contra Sandys 2 Jac. 2. fo 108. THat the Defendant being Patron of the Rectory of Messenden in Com' Gloucester The Parson relieved against a Bond given for Resignation and the former Incumbent having Resigned the same the Defendant told the Plaintiff he would present him to the said Rectory worth about 100 l. per Annum and the Plaintiff coming to the Defendant for the said Presentation the Defendant drew a Bond of 300 l. penalty with Condition That the Plaintiff should resign the said Rectory at any time within six Months Notice which the Plaintiff sealed and thereupon the Plaintiff was Instituted and Inducted and was ever since a constant Resident on the place and hath been at charge of Repairs and the Plaintiff demanded Tithes of the Defendant who refuses to pay the same but gave the Plaintiff Notice to resign who Resigned the said Rectory into the Hands of the Bishop of Gloucester but the Bishop refused to accept the said Resignation and ordered the Plaintiff to continue to serve the Cure declaring That he would never countenance such Unjust practices of the Defendant but ordered his Register to enter it as an Act of Court That the Plaintiff had tendred his Resignation and that the said Bishop had rejected it That the Defendant Arrested the Plaintiff on the said Bond for not Resigning so to be relieved against the said Bond is the Plaintiffs Suit The Defendant insisted That the Plaintiff demanded more than his just due for Tithes whereupon the Defendant refused payment and that the Defendant requesting the Plaintiff to resign according to the Condition of the said Bond the Defendant Arrested him which he hopes is Just for him to do and that this Court will not hinder the prosecution and that the Plaintiff hath no colour of Relief in this Court against the said Bond and insist That the Reason of his Arresting the Plaintiff on the said Bond was his Non-residence and litigious Carriage to the Parishioners This Court declared That such Bonds taken by Patrons from their Clerks to Resign at pleasure may be good in Law yet ought to be enjoyned and damned in Equity whensoever they are used to any ill purposes And the Defendant making ill use of the said Bond his Lordship decreed That a perpetual Injunction be awarded against the Defendant to stay proceeding at Law upon the said Bond. Knight contra Atkyns 2 Jac. 2. fo 604. THat the Plaintiff is Brother and Heir as well of John as Benjamin Knight Marriage Agreement to have Monies laid out in Lands for a Joynture to such uses the Remainder to the use of the right Heirs of the Husband The Mony is not laid out the Husband dies without Issue the Mony decreed to the Plaintiff being right Heir and also Executor of the said Benjamin and the said John Knight being seised of a Plantation in Barbadoes of 1000 l. per Annum by his Will declared his debts to be paid and gave several Legacies and made his Brother Benjamin sole Executor and gave him the residue of all his real and personal Estate and the said Benjamin proved the Will and afterwards a Treaty of Marriage was between the said Benjamin and Sir Johnathan Atkyns on behalf of Frances the Daughter of Sir Jonathan upon which Treaty it was agreed that Sir Jonathan should give the said Benjamin 1500 l. as a Portion with the said Frances and for a Joynture in case Frances survived Benjamin was to add 1500 l. and the said Sums to be laid out in a purchase of Lands to be setled upon Benjamin and Fraâ—â—â—s for life and for a Joynture for Frances in lieu of her Dower and after their decease to the Issue between them and for want of such Issue to the right Heirs of the said Benjamin and until such purchase the said respective Sums of 1500 l. to be paid into the hands of the Feoffees and the increase thereof to the uses aforesaid but in regard such a purchase could not be speedily found out Sir Jonathan and Benjamin became mutually bound to each other by Bonds of 3000 l. penalty with Condition reciting That there being suddenly a Marriage to be had between the said Benjamin and Frances and for setling a future Maintenance upon Frances in case she survived and upon the Issue between them If therefore Sir Jonathan his Heirs Executors c. should pay as a Marriage portion with the said Frances into the hands of two Feoffees to be joyntly appointed between them 1500 l. which with the like Sum to be paid by Benjamin was to be laid out upon good Security real or personal and the increase thereof for the uses aforesaid and in case the whole was not provided within a short time then so much as either party should deposit and the Remainder with all convenient speed then the said Bonds to be void That such provision was sufficient and in full of any Dower the said Frances might have to Benjamin's Estate That no Feoffees being appointed the 1500 l. still remains at Interest in Sir Jonathans hands And the said Benjamin for payment as well of his own as his Brother Johns debts and legacies and to oblige his real and personal Estate for performance of the Marriage Agreement did by Deed in 1681. convey unto Trustees all his Plantations Houses
c. upon Trust to himself for life and after his death to satisfie the said Bond of 3000 l. for payment of 1500 l. to Sir Jonathan for the future Maintenace of the said Frances according to the said Marriage Agreement and in full of Dower and to do all things according as he by his last Will should direct That the said Benjamin by Will 10 Dec. 1681. therein reciting the Condition of the said Bond gave his Wife 1000 l. unpaid of Sir Jonathans Bond and his Trustees to pay 1500 l. with 500 l. he had received of Sir Jonathan in part of his Wives portion which Sums made in all 3000 l. and was to be laid out in a purchase of Lands to be setled to the uses aforesaid and made Hulkot and Fowler Executors in Trust to manage for the Plaintiff whom he made his sole Executor who afterwards took upon him the Execution of the said Will and claims the said 3000 l. to be laid out in Lands to be setled according to the said Marriage Agreement which was in case Benjamin died without Issue the said Lands so to be setled were to come to Benjamins right Heirs and the Plaintiff is Instituted as Heir and Executor of Benjamin The Defendant Pierce confesses the Marriage Agreement and Bonds as in the Bill and that the Marriage between the said Henry and Frances took effect and the said Benjamin is since dead and that since his death the said Defendant Pierce hath married the said Frances and is thereby intituled to the benefit of the Bond entred into by the said Benjamin to Sir Jonathan and the Monies due thereon and to the Third part of Benjamins Lands The Plaintiffs insist That the said Frances dying without Issue the Mony in Sir Jonathan Atkyns his hands ought now to be paid to the Plaintiff This Court upon reading the said Bond and Condition and the Deed and Will of Benjamin declared That by the Marriage Agreement and Condition of the Bond it was very clear that the said Frances having no Issue by the said Benjamin could only have an Estate for life or the Interest of the Mony for her Maintenance and that the Plaintiff is well intituled to have the said 3000 l. paying the Defendant Pierce Interest for the 1500 l. which the said Benjamin the Plaintiffs Testator was bound to lay out and decreed accordingly Kettle by contra Lamb 2 Jac. 2. fo 1064. THat on a Treaty of Marriage between Richard Kettleby the Plaintiffs younger Brother Monies to be laid out in Lands for a Joynture by Marriage Articles and the Defendant Ann now Wife of the Defendant Atwood Articles were entred into and made between Thomas Laud Father of the Defendant Ann of the first part and the said Richard Kettleby of the second part and the Plaintiff and others Trustees of the third part whereby the said Lamb Covenanted to pay 1500 l. to the said Trustees as a Marriage-portion with the Defendant Ann his Daughter and the said Richard Kettleby Covenanted to pay 500 l. more which being 2000 l. was agreed to be laid out in the purchase of Lands to be setled upon the said Richard for life and after on the said Trustees and their Heirs during the life of Richard to preserve the contingent Remainders and after to the use of the said Ann his Wife during her life for her Joynture and after to their first and so to their seventh Son of their two Bodies and their Heirs successively and for want of such Issue to the Daughters and for want of such Issue to the right Heirs of the said Richard Kettleby for ever and that by the said Articles it was agreed that before such purchase could be made the said Trustees should place out at Interest the said 2000 l. and from time to time pay over the Interest to such person to whom the Lands are intended to be purchased was limited as if the same had been purchased and setled accordingly and there was a Proviso in the Articles That if the said Richard died before a purchase should be made leaving no Issue of his Body on the Body of the said Ann his intended Wife and Ann survived him that in that case the 2000 l. or so much thereof as was not laid out in Lands should either be laid out in the purchase of Lands to be setled upon the said Ann for life with Remainder to the right Heirs of Richard or else Three parts thereof the whole to be divided into Four parts of such Moneys as should be paid to the said Ann her Executors c. at her Election so as she made such Election within six Months after the said Richards death otherwise at the Election of Richards right Heir That afterwards the Marriage took effect and 1500 l. of the 2000 l. placed with the said Lamb by the Trustees who paid the Interest thereof to the said Richard Kettleby during his life and before the Mony was laid out in a purchase Richard died Intestete leaving Issue one Daughter named Ann who likewise died in a Month after the said Richard whereupon the Right of the 2000 l. or Lands to be purchased therewith after the death of Ann the Wife accrued to the Plaintiff Edward Kettleby as right Heir of the said Richard Kettleby so to have the 2000 l. invested in Lands and setled according to the said Articles for the benefit of the Plaintiff is the Plaintiffs Suit The Defendant Atwood who hath married the said Ann the Relict of the said Richard Kettleby insists That the said Ann his Wife is Administratrix to Richard her first Husband and the said Ann her Daughter and thereby well intituled to the personal Estate and that according to the Proviso in the said Articles the said Ann had made her Election to have 1500 l. of the 2000 l. to be at her own disposing and that she was well intituled to the other 500 l. as Administratrix to Richard and Ann her said Daughter and that the Marriage Articles being meerly for the benefit of the said Defendant Ann Atwood and her Issue and the Plaintiff no way intituled under the Consideration thereof there was no ground in Equity to compel a performance so as to give the Plaintiff the Defendants portion This Case being heard by the Lord Keeper North he declared That the 2000 l. did belong to the Administratrix of the said Richard Kettleby and ought not to be setled upon his Heir and dismissed the Plaintiffs Bill which dismission being signed and inrolled the Plaintiff brought his Bill of Review against the said Defendants and for Error Assigned that whereas it was declared by the said Lord North that the 2000 l. did belong to the Administratrix of Richard Kettleby and not to be setled upon his Heir That the same ought to be Decreed to be laid out in Land to be setled upon the said Ann only for life Remainder to the Plaintiff as Right Heir of Richard and his Right Heirs for ever according
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
284 Middleton conta Middleton p. 377 Com' Montague contra Com' Bathe p. 417 N NEwton contra Langham p. 108 Newport contra Kinaston p. 110 Nowell contra Robinson p. 248 Nodes contra Batle p. 283 Norton contra Mascall p. 304 O OLiver contra Leman p. 124 P POtter contra Hubbert p. 85 Plummer contra Stamford p. 106 Prigg contra Clay p. 187 Dom ' Pawlet contra Dom ' Pawlet p. 286 Pullen contra Serjeant p. 300 R DOm ' Read contra Read p. 19 Rowley contra Lancaster p. 24 Ramsden contra Farmer p. 115 Ray contra Stanhope p. 157 Raymond contra Paroch ' Buttolphs Aldgate p. 196 Rose contra Tillier p. 214 Ring contra Hele p. 221 S SMith contra Holman p. 23 Shalmer contra Gresham p. 29 Stowell contra Botelar p. 68 Com' Sterling contra Levingston p. 75 Sutton contra Jewke p. 95 Stickland contra Garnet p. 97 Sowton contra Cutler p. 108 Salter contra Shadling p. 117 Still contra Lynn p. 120 Stawel contra Austin p. 125 Stewkley contra Henley p. 166 Saunders contra Earle p. 188 Sale contra Freeland p. 212 Stapleton contra Dom ' Sherwood p. 255 Skinner contra Kilby p. 491 T TOlson contra Lamplugh p. 43 Thorne contra Newman p. 71 Tregonwel contra Lawrence p. 94 Twyford contra Warcup p. 106 Turner contra Turner p. 154 Trethervy contra Hoblin p. 172 Tucker contra Searle p. 173 Thompson contra Atfield p. 216 Turner contra Crane p. 242 W WIndham contra Love p. 14 Wiseman contra Foster p. 22 White contra Ewens p. 49 Warren contra Johnson p. 69 Wallop contra Dom ' Hewet p. 70 Wall contra Buckley p. 97 Winchomb contra Winchomb p. 101 Woolstenholme contra Swetman p. 129 Warwick contra Cutler p. 136 Warner contra Borseley p. 151 Windham contra Jennings p. 247 Woodhall contra Benson p. 290 Com' Winchelsey contra Dom ' Norcliff p. 365 Whitmore contra Weld p. 382 Whitlock contra Marriott p. 386 Y YAte contra Hook p. 39 Books lately Printed for John Walthoe in Vine Court Middle-Temple AN Exact Table of Fees of all the Courts at Westminster as the same were by Orders of the several Courts carefully Corrected and diligently Examin'd by Records and Ancient Manuscripts by the Persons following Viz. The CHANCERY by Sir Miles Cooke Samuel Keck Esq and others The KINGS-BENCH on the Plea-side by W. Turbill and Nicholas Harding On the Crown-side by R. Seyhard and Richard Horton The COMMON-PLEAS by W. Farmerie Silv. Petyt and H. Clift The EXCHEQUER On the Plea-side by R. Beresford Tho. Arden c. On the Equity-side by Butler Buggins Esq Very useful and necessary for all Attorneys Solicitors and Entring-Clerks and indeed for all Persons that have any Business of moment To which is added a Table for the ready finding out the Fees belonging to each Office 2. Reports of Cases Taken and Adjudged in the Court of Chancery in the Reign of King Charles the First and to the 20th Year of King Charles the Second Being Special Cases and most of them decreed with the Assistance of the Judges and all of them referring to the Register-Books Wherein are setled several Points of Equity Law and Practice To which are added Learned Arguments relating to the Antiquity of the said Court its Dignity and Jurisdiction 3. Observations Historical and Genealogical in which the Originals of the Emperor Kings Electors and other the Sovereign Princes of Europe with a Series of their Births Matches more Remarkable Actions and Deaths As also the Augmentations Decreasings and Pretences of each Family are drawn down to the Year 1690. 4. The Law of Obligations and Conditions or an acurate Treatise wherein is contained the whole Learning of the Law concerning Bills Bonds Conditions Statutes Recognizances and Defeazances as also Declarations on Special Conditions and the Pleadings thereon Issues Judgments and Executions with many other useful Matters relating thereunto digested under their proper Titles To which is added a Table of References to all the Declarations and Pleadings upon Bonds c. now extant 5. A compendious and acurate Treatise of Fines Fines upon Writs of Covenant and Recoveries upon Writs of Entry in the Post with ample and copious Instructions how to draw acknowledge and levy the same in all Cases Being a Work performed with great Exactness and full of Variety of Clerkship The Third Edition enlarged REPORTS AND CASES Taken and Adjudged in the COURT of CHANCERY In the REIGN of King CHARLES II. Every contra Gold 20 Car. 2. fo 921. THE Bill is to be Relieved for two Legacies of 1500 l. apiece which the Plaintiff claims as Administratrix to her Daughters Susanna and Martha Every given and secured to them by several Conveyances and by the last Will of William Every their Grandfather The Case is viz. Portions raised by Deed. That the said William Every the Grandfather in consideration of a Marriage between William Every his Son and the Plaintiff Martha a Daughter of Sir John Pool by Deed 22 April 7 Car. 1. did provide That if William his Son should die without Issue male by him on the body of the said Plaintiff Martha and should have two Daughters by the Plaintiff Margaret then living or if the said William should fail to have issue Male which should be living until the same Daughters should respectively attain 18 years of Age or be married that then the Recoveror therein named should stand seised of the Premisses to the use of the Recoverors and their Heirs for the raising 1500 l. apiece for the Portions of the said Daughters and 20 l. a piece per annum for each of their Maintenance in the mean time to be paid at their respective Ages of 18 years or days of Marriage which should first happen and if either of the said Daughters should die before that Age or Marriage the Portion of her so dying to be distributed to the Survivor and if all the said Daughters should die their Portions not paid or payable then the same should be paid to the next Heir of William Every the Grandfather That William Every the Son New Provision by a second Deed and a Will thereupon had Issue by the Plaintiff one Son named William and two Daughters the said Susan and Martha and by Deed of Bargain and Sale and Release thereupon both dated in December 1651 in which Release so much of the Tripartite Indenture as relates to the Daughters Portions is recited William Every the Grandfather Conveys to Gold Doble and Holloway and their Heirs Lands in Somersetshire to the use of William the Grandfather for life and after to Gold Doble and Holloway for 200 years with other Remainders over upon Trust out of the Profits or by granting Leases or Estates to pay his Debts first and then for raising to and for the said Susan and Martha so much Mony as should supply and advance their respective Portions to them severally thereafter to be given by William
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
of the said Testator Joseph Jackson This Court upon reading the said Deeds and Will Mortgage-Mony payable to the Executor and not to the Heir by several good circumstances in the Conveyances conceived that there was no question in the Case but that the said several Sums of 2000 l. and 500 l. being the Mortgage-mony ought to go not to the Heir but to the Executors and to be accounted part of the Testators personal Estate he having by his Will given his real Estate by Name to his Heir besides his Portion of 2000 l. and one 4th part of the Overplus of his personal Estate the rather for that it was not in the power of the Heir to discharge the Judgment or the Mortgage and the Moneys by the several Provisoes being made payable to the Executor and not to the Heir and the Original Mortgage being but for years though altered by Act in Law and the Testator having by Will charged the Lands devised to his Heir to supply the deficiency if the personal Estate should not be sufficient Whereas if he had not taken the Mortgages to be part of his personal Estate he would have supplied the same out of the Mortgages and decreed Sir Thomas Hooke to Redeem and he pay the Plaintiffs the Executors the Mortgage-Mony with Interest Tolson contra Lamplugh 21 Car. 2. fo 786. THe Plaintiff prays liberty to make use of Depositions taken in a former Cause wherein Henry Tolson Depositions taken in a former Cause made use of the Plaintiffs late Father deceased was Plaintiff against Abraham Molline and his Wife and Mr. Winstanley Defendants The Defendant Lamplugh insisted That there is no colour or ground for the using the said Depositions taken in the Cause wherein the said Henry Tolson was Plaintiff at the Trial directed those Depositions being taken in a Cause whereto neither of the Defendants the Lamplugh's are parties and there is more difference of the Title between the Defendants the Lamplugh's and Mr. Moline and Winstanley than between the said Lamplugh and the Plaintiff Tolson The Plaintiff Tolson insisted That the Defendants the Lamplugh's claimed and derived their Title under Mr. Moline and his Wife and Winstanley and so the said Depositions ought to be used at the Trial which the Defendant denied This Court declared That the Depositions in the said former Cause ought to be used against the now Defendants the Lamplugh's unless they claim under the said former Defendants but if they do then the said former Depositions ought to be admitted as Evidence against them Hunton contra Davies 22 Car. 2. fo 386. THE Bill is for 500 l. Remainder of 2900 l. which Mr. Hugh Ordley was to pay for the purchase of Land to the Plaintiffs Father which 500 l. was decreed to be paid to one Castle in 1637. for the use of the Plaintiff which 500 l. and Interest comes to 1184 l. and to have the Defendants the purchasors of the Land to pay it To which Bill the Defendants Bill for Remainder of purchase-Mony Defendant pleads it is 33 years since and never any Suit for it but the Land enjoyed and former parties concerned dead per Cur ' a good Plea the Executors of Ordley pleaded That Mr. Ordley lived in London till 1662. and the Plaintiff might have had remedy against him and it being a debt 33 years since and no Suit commenced against Ordely in his life time nor any till now and the Lands enjoyed by others now and the Defendants the Executors have nothing to shew for the payment and Case and all former parties concerned therein being dead and therefore after all this time the Defendants hope this Court will not suppose that the said Mony is unpaid or that the Defendants ought to be charged therewith and the Defendants being Executors and Strangerr to all the Matters aforesaid This Court held the Plea and Demurrer good Malpas contra Vernon 22 Car. 2. fo 360. A Bill of Review Bill of Review to Reverse a Decree whereby the Plaintiff is decreed to pay more Mony than by his Agreement on his Purchase he was to pay This Court declared That without a special Agreement at the time of the purchase for payment of the debt claimed by the Defendant the Plaintiff ought not to be oblig'd by the Decree to pay the Defendants no such Agreement appearing by the Decree or any Proof offered at the Hearing The Defendant insisted That by the Proofs there is an Agreement proved whereby the Defendant amongst other Creditors was to be satisfied his debt Now the Point being No new Proofs admitted upon a Bill of Review upon a second Agreement whether any special Agreement was made for the purpose aforesaid and the Court had declared no new Proofs could be admitted in the Cause this Court Ordered by consent That the Cause be heard on the said point of Agreement on the old Proofs and no other Comes Castle-Haven contra Vnderhill 22 Car. 2. fo 106. THis is a Bill of Review Bill of Review to Reverse a Decree in 12 Car. 1. wherein the now Defendant was Plaintiff against the Lady Vice Countess of St. Albons his Wife and others Defendants The points of Error were That the Decree was grounded on a Bill exhibited by the now Defendant against the said Lady St. Albons his then Wife and was made by Consent without any Judicial Hearing whereby a Settlement and disposition of the said Ladies Lands whereof she had an Estate in Fee was made without any Fine or Recovery levied or suffered or any other legal Act done to bar and bind her or her Inheritance which the said Plaintiff conceives could not be done the said Lady being a Feme Covert and could not in Law or Equity consent nor could her Trustees by her consent charge the Inheritance wherein they had no legal Assurance The now Defendants insist That 2 Car. 1. the said Lady St. Albons after her Intermarriage with the now Defendant did settle 300 l. per Annum and several Recoveries were suffered whereby the same would have come to the Defendant after the said Ladies death as an Estate in Fee the said Lady dying without Issue That afterwards the said Lady and the Defendant came to another Agreement viz. That the Defendant should have 400 l. per Annum out of the said Ladies Estate to him and his Assigns for life and in consideration thereof the said Defendant agreed to quit and debar himself of and from all claim and interest to any of the rest of the said Ladies Estate real or personal during their joynt Lives or after her death and in case of failure of payment or the said Ladies death the Defendant was to enter into all the Estate for Satisfaction which said 400 l. per Annum was setled by Deed Tripartite 14 Car. 1. and the said Agreement and Settlement was confirmed by a Decree 17 Car. 1. by the consent of all parties and that the said Lady by Will gave away
of the premisses were accrued to the said Plaintiffs but that by reason of the said Proviso and several Ambiguities in the said Deed it was doubtful to what parts the Plaintiffs Settlement with Proviso not to attempt the impeachment of it Court dirccted a Trial at Law and that the Trial should be no forfeiture the Heirs general were intitled unto so to be protected against the said Proviso and to have the partition of the Lands is the Bill His Lordship declared it was most fit that a Trial at Law be had touching the Plaintiffs Right and Title and that such Action to be brought shall not be taken or construed a breach of the Proviso aforesaid or forfeiture of the Plaintiffs Right and Title to the premisses Smith contra Sallett 24 Car. 2. fo 382. THe Bill is to have an Issue directed by this Court to try whether the Fines of the Copyholders due to the Lord of the Mannor were certain or arbitrary The Defendant insisted Fines of Copyholder whether certain or arbitrary it having been tried at Law the Court would not relieve the Plaintiff other than for the preservation of Witnesses That there had been several Trials already and Verdicts have passed for a Fine certain and particularly one in Ejectment before Mr. Justice Windham and another before the Lord Chief Justice Hales upon a Special Issue directed out of the Exchequer Whether the Fines were certain at 8 d. an Acre and 8 d. a Cottage or not And a Verdict passed on both Trials for a Fine certain This Court declared They could not relieve the Plaintiff in Equity other than for the preservation of Testimony and dismissed the Plaintiffs Bill Lewis contra Lewis al' 24 Car. 2. fo 664. This is on a Case stated viz. THat the Lord St. Will. John and his Trustees demised a Lease on the premisses for 99 years unto the Defendant Turner if the Plaintiff Alice then Wife of Dr. William Lewis and Theodore Lewis Son of the said Dr. Lewis and one Feilder or either of them should so long live That this Lease was made at the nomination of and in Trust for the said Dr. Lewis That after in July 1666. the Doctor made his Will and as to the premisses devised them to the said Alice for life and after her death then to the said Theodore Lewis to be disposed of as the said Doctor shall appoint them by his Will in writing or Deed and of his Will made the said Alice his Executrix That in March 1667. by a Declaration in writing to which the said Doctor and the Defendant Turner are parties and executed by them both the Trust of the premisses was thus declared viz. for the said Doctor for life afterwards for such person or persons as the said Doctor by his Will or Deed should appoint and in default then for the Executors or Administrators of the said Doctor That in July 1667. the Doctor died without making any other Will or Deed or other Appointmen for the disposing of the premisses That Alice by virtue of the said Will and Deed entred and possessed the premisses That it appears also in the Case Parol Declaration of ones Intent not good against a Declaration in writing some Proof was offered touching a Parol Declaration of the said Dr. Lewis his Intention that the Son Theodore should have the benefit of the said Lease but that being by Parol against a Declaration in writing the Court conceived it not material in the Case and that it is also in the Case that the said Theodore claimeth so much of the term as should be behind at the death of the said Alice and that the said Alice claims the whole term as Executrix to the said Dr. Lewis The Court at the first Hearing was assisted with the Mr. Justice Atkyns Trust of a term devised to J.S. and then to J. D. to be disposed of as the Testator should appoint by his Will or Writing He makes a Writing and declares it to himself for life and after to such persons as he should by Will or Deed appoint and for default of that to his Executors and made no other Will or Deed the Executor shall have it who inclined to be of Opinion for the said Theodore and that the said Defendant Turner the Trustee ought to execute the Trust for him But his Lordship differing in Opinion and having since advised upon the Case with Mr. Justice Windham and several other of the Judges who were all clear of Opinion That according to the Declaration in writing the Plaintiff Alice the Executrix is well intituled to the benefit of the said Lease This Court therefore doth decree That Turner the Trustee do execute the trust and convey and assign the said Lease and the remainder of the term therein to the Plaintiff Alice or whom she shall appoint Lance contra Norman 24 Car. 2. fo 233. THe Plaintiff Lance his Suit is Recognizance that the day before the Marriage of the Plaintiff and his Wife the said Plaintiffs Wife was perswaded to enter into a Recognizance of 2000 l. without defezance to the Defendant Norman being the Plaintiffs Wives Brother to which the Plaintiff was not privy or consented which Recognizance the Plaintiff seeks to have set aside and vacated The Defendant Norman insists That the Plaintiff was Suiter to his Sister designing to gain her Estate but she not likely to have Children intended the said Defendant Norman part of her Estate and upon that account gave the said Recognizance and at that time the said Norman was in the Country and no ways knowing of it nor had contrivance in it but the said Plaintiff proving unkind to his Wife and turned her out of doors and parted with her not making any provision for her This Defendant hath put the same in Suit The Plaintiff insisted that his said Wife voluntarily absented from him and took and conveyed awaygreat part of his Estate and hath acted as a most insolent and undutiful Wife and entred into the said Recognizance without his privity This Court being assisted with the Judges was satisfied that the said Recognizance was entred into the very day before Marriage without defezance or the Plaintiffs privity whereby to defraud the Plaintiff and one witness only deposed the Plaintiffs consent to the drawing the said Recognizance who hath an Assignment of the same to himself The Court decreed the said Recognizance to be set a side A Recognizance entred into by the Wife the day before Marriage set a side and a perpetual injunction and vacated on the Record thereof and a perpetual injunction is granted against it and this Court proposed on the said Plaintiffs Wives returning back all the Estate which she took and conveyed away that the Plaintiff do allow her 20 l. per Annum which was consented to by the Plaintiff for her separate maintainance Howard Vxor contra Hooker 2 Car. 2. fo 587. BIll is to set aside a
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
Answer acknowledged the said Debt This Court declared that the said Debt of 400 l. and Costs ought to be paid and Ordered the same accordingly and that the same be paid by Phillip Innelt Esq who purchased the premises liable thereto Hodkin contra Blackman al' 26 Car. 2. fo 773. THe Bill is to discover the Estate of the Intestate Maurice Blackman which came to the Hands of Elizabeth his Relict and to make the same liable to the satisfaction of a Debt of 300 l. lent to the said Intestate for Security whereof the said Intestate gave a Penal Security of 1000 l. The Defendant Elizabeth the Administratrix of the said Intestate insists Agreement to Settle 100 l. in Money Goods or Lands upon Marriage for 500 l. Portion 200 l. of the said 500 l. not paid she hath no Assets to Satisfie the Plaintiffs Demands for that in 1665. the Intestate Blackman her late Husband before Marriage with her and her Father Doctor Argoll came to this Agreement viz. that her said Father should give with her in Marriage to the said Blackman 500 l. and in consideration thereof and of such Marriage the said Blackman should enter into one Obligation to the said Doctor Argoll of 3000 l. Bond of 3000 l. to perform the said Agreement and Judgment thereupon pleaded in Bar of other Debts and Goods penalty Conditioned for the Setling of 1500 l. upon the said Defendant Elizabeth and her Heirs in Monies Lands or otherwise within one Month after the Marriage that accordingly the said Blackman in August 1665. entred into such Bond and the said Marriage was had and the said Blackman received 300 l. of the Portion and the remaining 200 l. was in the Hands of the Defendants Serjant Brampston that the said Blackman never made such Provision for the said Defendant Elizabeth and her Children as by the Condition of the said Bond he was to do and the Defendant Mary after the Death of Doctor Argoll her Father whose Executrrix she is finding the said 3000 l. uncancelled and the Condition thereof not performed did in August before the time of putting the Defendant Elizabeth's Answer commence an Action of Debt against the said Defendant Elizabeth as Admininistratrrix to Blackman her late Husband and recovered a Judgment thereon for 3000 l. Debt upon the Bond. But the Plaintiff insists that the remaining 200 l. in Serjant Brampstons Hands which is part of the said Elizabeth's Portion ought to be applyed to Satisfie the Plaintiffs Debt as far as the same will go and what the same falls short of the rest of the Estate ought to supply This Court declared they saw no colour of Cause to give the said Plaintiff any Relief against the said 3000 l. Bond and Judgment thereon had other than against the Penalty and therefore the said Defendant ought to be first satisfied her said 1500 l. out of the Personal Estate of the said Blackman and Decreed the same accordingly Mosely contra Mosely 27 Car. 2. fo 521. THe Defendant claims several things devised to her in specie by the Will of Sir Edward Mosely Clause in a Will that if any Legatee should hinder or oppose the Execution of the Will then such person should lose the Legacy bequeathed A Suit for the Legacy no forfeiture and the Plaintiff would bar her claim and right for the whole by a particular Clause in the Will viz. That if any Legatee should hinder or oppose the Execution of his Will then such person should lose the Legacy bequeathed This Court as to the Clause of Forfeiture in the Will which the Plaintiff would have the benefit of by reason of the Defendants contesting and opposing of the Execution of it declared its Opinion to be That no advantage ought to be taken thereof but that the Defendant ought to have her specifick Legacies bequeathed by the Will The Court also declared their Opinion of the Rent demanded by the Defendant of 880 l. that notwithstanding the Defendants opposition of the Will the said Rent was not forfeited or suspended nor ought in equity to be so deemed and ordered the Defendants demand thereof to stand good and be allowed as a good demand Plummer contra Stamford 27 Car. 2. fo 74. THat Edward Stamford entred into a Recognizance of 800 l. An Ancient Recognizance not set aside to let in a Mortgage to John Stamford his Brother in 22 Car. the Plaintiff having a Mortgage on Edward Stamfords Estate and in respect of the Antiquity of the said Recognizance would have it set aside presuming the mony to be satisfied that the Plaintiff may come in with his Mortgage This Court would not relive the Plaintiff against the Recognizance Twiford contra Warcup 27 Car. 2. fo 749. THe Plaintiff and Defendant entred into Articles for Purchase of the Lands in question Articles Conveyance by which Articles the Plaintiff Covenanted That the said Lands did fully and compleatly contain the quantities of Acres in a particular to the said Articles annexed and in pursuance of the said Articles and particular a Conveyance was Executed to the Defendant Now the Defendant insists That the Plaintiff hath not performed the Covenant in the said Articles for that the Lands are short of what the particular mentions them to be and insists they ought to be made good by the Plaintiff This Court on reading the Articles particular and Conveyance declared that altho' the Covenant in the Articles were that the Lands did full and compleatly contain the quantities in the Schedule yet in that Schedule and likewise in the Conveyance it is mentioned to contain so many Acres by Estimation and if there were 4 or 5 Acres more the Plaintiff cannot have them back again so on the other side if less the Defendant must take it according to the Conveyance and that the Articles being only a security for a Conveyance and the Defendant having afterwards taken a Conveyance No resorting back to a defect in Articles after a Conveyance thereupon executed the Defendant shall not resort to the Articles or to any particular or to any Averment or Communication after the Conveyances Executed which ought not to be admitted against the Deed and therefore saw no Cause to make any allowance for defect of Acres Newton contra Langham 27 Car. 2. fo 563. THe Plaintiff having an Adventure of 1700 l. Adventure in the East-India Company Mortgaged redeemable in the East-India Company Mortgaged the same 15 years since to Sir William Vincent who died and made the Defendant Executor who hath possessed the said 1700 l. Adventure and refuse to reassign the same to the Plaintiff the mony being paid for which it was a Security The Defendant insists That the said Adventure is not redeemable it being contingent and hazardous and cost much mony to insure and 14 years since it was assigned from Hand to Hand by a Decre for the Assignment to the Defendants Testatrix This Court declared That notwithstanding
Defendant for 99 years after his death upon Trust in Case he left no Son or such as should die before 21 without Heirs Males and should leave one or more Daughters for raising of 12000 l. if but one Daughter for such Daughter and if two or more Daughters then 20000 l. to be raised for their portions to be equally divided between them and to be due and payable at their respective Ages of 21 years or days of Marriage and the said George died leaving no Son and having only three Daughters viz. Vrsula Elizabeth and one Ann Stawell who died since her Father and that the said Testator George his Relict married the Defendant Seymore and she on the death of her Daughter Ann took the Administration of her Estate and also soon after died leaving the portion of the said Ann in the said 20000 l. Un administrated and Administration of the said Anns Estate was granted to the said Vrsula and Elizabeth her Sister who are intituled to the said Anns personal Estate and that the said 20000 l. ought to be raised by the said Trustees out of the Lands setled as aforesaid but the Defendants the Trustees insist That by the words of the Will it is dubious whether the whole 20000 l. ought to be raised or any more than 12000 l. When Land to be charged with portion or not upon the words of the Will the said Ann being dead unmarried and before 21. And the Defendant the Heir insisted That as the Case is the portions of the said Ann ought not to be charged on the said Lands so the only Question before the Court being whether the Trustees shall raise 12000 l. or 20000 l. for the said Plaintiffs Vrsula and Elizabeth It appearing plainly to this Court that by the words of the said Will that if the said Testator George had two Daughters or more Daughter then 20000 l. should be raised This Court is of Opinion and declared that the Lands ought to be charged with the 20000 l. and the payment thereof to the Plaintiffs Vrsula and Elizabeth Lawrence contra Berny 29 Car. 2. fo 156. THis Case is on a Bill of Review Bill of Review This Court declared they would not make Error by construction and where a Decree is capable of being executed by the ordinary Process and Forms of the Court and where things come to be in such a State and Condition after a Decree made that it requires an original Bill and a second Decree upon that before the first Decree can be executed In the first Case whatever the inniqity of the first Decree may be yet till it be reversed the Court is bound to assist it with the utmost process the course of the Court will bear for in all this the Conscience of the present Judge is not concerned because it is not his Act but rather his sufferance that the Act of his Predecessor should have its due effect by ordinary Forms But where the common Process of the Court will not serve but a new Bill and a new Decree is become nenessary to have the Execution of a former Decree is in its self unjust there this Court desired to be excused in making in its own Act to build upon such ill Foundations and charging his own Conscience with promoting an apparent injustice and to this condition hath the Plaintiff Lawrence brought himself for he forbore to apply himself to this Court to support him as one that claimed under the Decree in 1650 or to pray an Injunction to stop Berneys proceeding at Law but stay'd till Berney had recovered the Land by a Tryal at Bar Where no ordinary Process upon the first Decree will serve but there must be a new Bill to pray Execution of the first Decree by a second Decree and been put into Possession by the Sheriff and now no ordinary Process upon the first Decree will serve but he is drawn to a new Bill to pray Execution of the first Decree by a second Deree and this obligeth the Court to examin the grounds of the first Decree before they make the same Decree again And this Court was not of this Opinion alone but it was also the Opinion of others that were before him who had made several Presidents in like Cases and would not enter further into Arguments of the Errors Lawrences Bill was an original Bill to Execute two Decrees in 1650 and 1651 and the Defendant Berney now also Plaintiff it being cross Causes brought his Bill of Review to Reverse the said Decree c. as Unjust and Erroncous That the first Decree by the Lord Coventry in 30 Car. 1. decreed a Sale of the premisses for a performance of the Trust that in 1650 a Decree was made to frustrate the Lord Coventry's Decree Priske contra Palmer 29 Car. 2. fo 323. THis Court was satisfied the Plaintiff had a quiet enjoyment for a long time and declared Want of a surrender Aided That notwithstanding a Surrender is wanting yet the Plaintiffs Title ought to be supplied in Equity and decreed the Plaintiff to enjoy the premisses and the perpetual Injunction to stay all proceedings at Law Woolstenholm contra Swetnam 29 Car. 2. fo 146. THat Thomas Swetnam deceased Settlement being possessed of a Personal Estate and making provision for his Grand-Children being the Children of Thomas his eldest Son being five in number whereof Peter Swetnam was one did by Deed authorize the Defendant William Swetnam who was his second Son and the Defendant Thomas Swetnam who was his Grandchild to receive 32 l. Rent which was an Arrear of 16 l. per Annum Annuity of Foster's Farm in Trust to be divided amongst his said five Grandchildren at the Age of 21 and the said Thomas the Grandfather by some other Deed charged his whole Lands on a Settlement thereof on the Defendant Thomas with the payment of 1000 l. equally amongst his said five Grandchildren whereof the said Peter was one and in further kindness to the said Peter in 1657. by Will gave him 100 l. to be paid out of the Personal Estate and made the Defendant William his Executor and the said Peters Father to increase his Fortune put out several Sums of Mony in the said William's Name and deposited other Mony in the said Defendants hands for the said Peters use and by his Will surther gave to Peter 30 l. and Peter married the Plaintiff Martha and by his Will devised all his Estate to the said Martha whereby the Plaintiff is intituled to the said Devisee and to the said Peters shate in the 1000 l. so to be relieved for the Sum is the Bill The Defendant William insists That Thomas the Father of Peter died possessed of a Personal Estate of 266 l. and the Defendant as his Executor possest it 1000 l. to be raised and divided amongst five Children one dies before distribution the Survivors shall have his share and not the Devisee of him that is dead and paid
his debts being 100 l. and says that the 1000 l. was given to be divided as afore said and as the Defendant William should think fit and that Peter dying before any distribution was made to him thereof the Defendant William ought not to distribute the same amongst the other four and no part of it ought to come to the Plaintiff This Court declared That no part of the 1000 l. doth belong to the Plaintiff in Right of the said Peter or otherwise and dismist the Bill Nance contra Coke 29 Car. 2. fo 64. THe Plaintiff seeks Redemption of a Mortgage made the 17th of Jac. 1. Release pleaded against the Redemption of a Mortgage and allowed the Defendant pleaded a Release of the Mortgagors Interest in Anno 1620. This Court after so long time and such Release could not admit the Plaintiff to Redeem though the premisses were Mortgaged for 376 l. and worth now to be sold 1500 l. Burgrave contra Whitwick al' 29 Car. 2. fo 173. THat George Whitwick deceased Will. having Issue George his only Son and Elizabeth and Martha the Wife of the Defendant Curtis by Will bequeathed to the said Elizabeth 600 l. to be paid unto her as therein after is expressed and to the said Martha 600 l. in like manner and gave the residue of his Personal Estate to the said George his Son to be employed as should be afterwards expressed in his Will and also gave to his said Son and his Heirs all Lands whatsoever and Willed That if either of his said Children should dye in their Minority that the surviving should be Heirs to the deceased in equal portions but if all should die without Issue then he gave his Lands to George the Son of Humfrey Whitwick with Remainders over and ordered the said Portions in convenient time to be laid out in Lands for his said Children and till Lands purchased the Executors to retain the Mony so long as the Overseers should see good at 5 l. per Cent. and made the Defendant Humfrey Whitwick Executor That George the Son died Intestate under Age unmarried that no Land hath been purchased by the Executor That Martha attained 21. and received her Portion and also the Moiety of the residue of the Personal Estate bequeathed to George the Son but refuses to pay Elizabeth her 600 l. and Moiety of the said residue of the Personal Estate she being yet a Minor under 21. yet she is married to the other Plaintiff Burgrave who can give a Discharge The Defendant insiststs According to the meaning of the Will he ought not to pay Elizabeth till the Age of 21 years for in case she die before the said Martha ought to have the other Moiety of the residue of the Personal Estate and he is advised there is a possibility of Survivorship of the Plaintiff Elizabeths Portion and Moiety of the residuary of the Personal Estate and that if he should pay it to the said Elizabeth and she should die before 21 the Defendant Martha may compel him to pay it again But the Plaintiff insists That the Moiety of the residuary Personal Estate devised to the said George not being laid out in Lands falls to the Plaintiff within the words of that Clause in the Will that gives the residue by equal portions to the surviving and so no further Survivorship intended This Court was of Opinion Residuary part of the Personal Estate not subject to any contingency of Survivorship but the Interest presently vested and declared the residuary part of the Personal Estate is not subject to any contingency of Survivorship but that the Interest of that presently vested in the Plaintiff upon the death of the said George the Son and ordered the Defendant the Executor to pay one Moiety of the residuary Personal Estate and in case Elizabeth die before 21 then the 600 l. to be paid to Martha which in the mean time is to be kept in the Defendants hands Morgan contra Scudamore 29 Car. 2. fo 658. THe Plaintiffs being Customary Tenants of the Mannor Renewing Copies upon reasonable Fines in which Mannor the Tenants hold Estates by Copy to them and their Heirs by the words Sibi Suis for 99 years yielding a Rent paying a Herriot and doing of Suit and Service c. And by the Custom of the said Mannor the Lords upon Expiration of every Estate ought to renew upon reasonable Fines and which said Estates by the Custom of the Mannour do descend from Heir to Heir and their Estates to be renewed for reasonable Fines they being expired which the Lords of the Mannor refuse demanding more than the Fee for a Fine whereas two years value was as much as ever was or ought to be given or demanded The Defendant the Lord of the said Mannor insists that there was such a Custom to renew for 99 years but the Fines always at the will of the Lord and such as the Plaintiffs could agree with him for there being no benefit to come to the Lord during the 99 years so the question is whether the Lord shall be at liberty to set what Fine he please or be restreined therein by this Court it appearing that the Fines are Arbitrary The Plaintiffs insist that though the Fines are Arbitrary yet the same are by Law supposed to be reasonable and that in some Cases the Law had adjudged above two years value to be an unreasonable Fine and the Defendant had demanded 10 and 12 years value for a Fine which is very extravagant and the will of the Lord in this Case ought to be limited The Defendant insists that the Plaintiffs Estates and Terms for 99 years expired many years before the Bill Exhibited some of them 30 and others 11 or 12 years since in the life-time of the Defendants Father and some of the Plaintiffs Estates have been granted to others and Fines levied thereon and that the Tenants of the said Mannor do not during the 99 years pay any Fines upon death or alteration so nothing is due to the Lord for 99 years together so that the Defendant insists nine or ten years purchase is a reasonable Custom This Court declared The Lord of a Mannor limited to two years value for a Fine the will of the Lord ought to be limited and that the Plaintiffs onpayment of two years value shall be admitted to their said Estates and hold the same against the Defendant and all claiming under him and that the Plaintiffs shall renew such Estates within one year after the Expiration of their Term in case they be of Age Tenants Decree to renew within one year after the Leases expired or within the four Seas at such time or otherwise within one year after such respective Tenant shall attain the Age of 21 or return from beyond the Seas or else such Tenant shall be for ever foreclosed of any help or benefit and and then the Lord is at liberty to dispose thereof Warwick contra
that it should extend only to the Testators Sister Ann Carr and her Children and to the Testators Nephews and Nieces now living and that no Kindred out of the degree of a Brother or Sister to the Testator or a Child of such Brother or Sister ought to come in or have any share of the said Residue and that amongst those that are to come into the Distribution the Executor ought chiefly to consider those that have most need that so they that have more need may have more than they that have less and decreed the same accordingly and as to the said John Buncher who was his Sisters Son and so to have share and was particularly recommended to the Executor who the Court declared had a power to give some more than other this Court ordered the Executor to give him somewhat considerably out of the Residue of the said Estate and the Executor to distribute the remainder to such of the Kindred as are to come into the Distribution as shall appear to the said Executor to have most need and in such manner and proportion as he shall think fit and Sir Samuel Clark one of the Masters of this Court is to see right done in this Case Distribution and the Bill wherein the Plaintiffs which are beyond the degrees of Nephews of the said Testator is to stand dismist Bourne contra Tynt 30 Car. 2. fo 636. THe Case is Will. that Roger Brown the Plaintiffs Brother by his Will in 1671. devised to Executors in Trust all Lands as before that time were Mortgaged to him and all Money due thereupon that they should lay out so much of his Personal Estate as remained after Debts and Legacies paid in a purchase of Lands of Inheritance to be setled on the first Son of his Body and the Heirs Males of the Body of such first Son and so to all Sons in Tail Male and for want of such Issue on the Plaintiff for life remainder to the Plaintiffs eldest Son in Tail remainders over to the Plaintiffs Children in Tail and by his Will declared and devised that in case the Child his said Wife was then big withal should be a Daughter then he gave to her 1000 l. to be paid to her at 21 or 6 Months after Marriage and in case she Marryed with consent of the Trustees then the said Portion to be 3000 l. and it was provided by the said Will that the Trustees out of the Interest of the said 3000 l. should pay for the Maintenance of the said Child 80 l. per Annum and it was also provided that in case such Daughter should dye before such Marriage or Age of 21 then her Portion and Mony so devised to her should go and be for the use and benefit of such Person or Persons as should at any time enjoy his Lands of Inheritance according to the Will and thereby declared the same Money to be laid out in a Purchase of Lands to be setled as aforesaid and also declared that the rest of the Personal Estate not given or disposed of by his Will should all be bestowed in Lands of Inheritance and setled as aforesaid and the said Roger Burne dyed without Issue Male of his Body and about three Months after the said Defendant Florence his only Daughter was Born and the Trustees have not pursuant to the Will laid out the Personal Estate in Lands so that the Plaintiff ought to have the Interest of such Money as should have been laid out in Lands The question in this case being whether the 3000 l. and the Interest thereof over and above the 80 l. per Annum Maintenance of the Defendant Florence should be paid to the Defendant or to the Plaintiff who claims the same by virtue of the Will in case the said Defendant Florence had not happened to be Born the Will being made before she was Born and the Plaintiff claiming the 3000 l. and Interest over and above the said 80 l. per Annum in Case she should dye or not be Marryed or incapacitated to dispose thereof The Defendant insists that the Plaintiff having a very considerable Estate from the Testator by the said Will which would have descended to the Defendant Florence in case she had been born and living at the time of the Death of her said Father and that the Plaintiff cannot have any pretence to the interest of the said 3000 l. as aforesaid for that there is not any Clause or Direction in the Will touching the same Portion and Interest devised upon a contingency of dying or Marriage decreed to be paid into Court for the benefit of the Heir according to the Will in case of the Devisees death This Court declared the 3000 l. and Interest over and above the said 80 l. per Annum belongs to the Plaintiff in case the said Florence dye before she receive the same by the said Will and Decreed that the Interest of the 3000 l. be paid into Court and not to be taken out without good Security given by the said Helena to make good the Benefit thereof to the Plaintiff in case the said Florence dye before 21 years or Marryed as aforesaid as the Will directs Elvard contra Warren al' 31 Car. 2. fo 350. THe Defendant being in Contempt for disobeying a Decree Prisoner by Habeas Corpus brought from Bristol and turned over to the Fleet for that he was in contempt and being a Prisoner in Bristol a Habeas Corpus cum causis was ordered to bring him to the Bar of this Court who was brought up and turned over to the Fleet who is there a Prisoner and refuses to obey the said Decree The Court ordered a Sequestration against his Real and Personal Estate Warner contra Borsley 31 Car. 2. fo 629. THe question being Devise whether a Devise of the Plaintiffs Father by his Will of his Personal Estate and Debts to the Plaintiff in remainder after the death of his Mother and the Devise thereof to her in the first place she being Executrix to the said 1st Testator and the Defendant her Executor were good or not The Plaintiff insisted That the Devise of the personal Estate by the Will of the Testator to his Wife was an absolute Devise to her by operation of Law and was vested in her and so consequently in the Defendant who is Executor of the said Alice by virtue of the said Executor and the Devise or Limitation over to the Plaintiff after the death of his said Mother who was Executrix of the first Testator was absolutely void in Law and the said Defendant as Executor to the Plaintiffs said Mother is well intituled to the said personal Estate devised by the Testators said Will. The Plaintiff insisted That the Devise to the Plaintiff in Remainder after death of his Mother was a good Devise and ought to be countenanced the rather in regard such Devise in the life time of the said Testator and Testatrix was
not having made an Appointment it ought to be taken for her Intention that the Plaintiff should have the Mony and therefore decreed the Defendants the Trustees to convey to the Plaintiff and deliver to him 1400 l. and the Securities for the 2000 l. Green contra Rooke 31 Car. 2. fo 351. THat Lawrence Rooke Devise Father to the Defendant Heyman Rooke and to the Plaintiff Mary being seised in Fee or Fee-tail or other Estate of Lands by Deed of the 26th of August 1650. granted the premisses to Edward Scot and others for 80 years if he so long lived and afterwards conveyed the sameon the 27th of the same Month unto Sir Henry Heyman and Peter Heyman and their Heirs for the term of his life and by Deed the 20th of October then next following and by a Recovery in pursuance thereof the said premisses were setled on the said Sir Henry and Peter Heyman and their Heirs for the life of the said Lawrence Remainder as to part to the use of Barbary Wife of the said Lawrence for her life for a Joynture and after as to part to the said Sir Henry and Peter Heyman for 99 years in Trust to raise 1000 l. for the portion of the eldest Daughter of the said Lawrence and then to the use of the first Son of the said Lawrence in Tail Male with the Remainder over That the said Lawrence and Barbara are dead and the Defendant Heyman Rooke is his first Son and the Plaintiff Mary is his eldest Daughter and the Portion of 1000 l. is due to her and the same being unpaid Peter Heyman the surviving Trustee assigned the term of 99 years to the Plaintiff Greene to enable him to raise the Mony and the Defendant Heyman Rooke hath mortgaged the same premisses to the other Defendants so the Question is Who hath the right or equity of Redemption and the Bill is also to have the Plaintiff Maries Portion paid or the equity of Redemption foreclosed The Defendant Heyman Rooke by Plea insisted That George Rooke his Grandfather by Will in 1647. devised the premisses unto Lawrence Rooke his eldest Son and Father to the Defendant Heyman Rooke for life only Remainder to the first second third and fourth Sons of the said Lawrence in Tail Remainder to John Browne and others for their lives in Trust for the better securing and preservation of the several Remainders limited unto the several Sons of the said Lawrence Rooke with Remainders over That the said George Rooke died without revoking or altering the said uses limited in his Will and so Lawrence Rooke could not by the said Deeds or Recovery bar or cut off the Remainder limited in and by the said Will in regard the said Browne and the other Trustees for preserving of the contingent Remainders were living since 1650. in which year the term of 99 years was created This Court declared Devise to Father for life Remainder to the first Son c. Remainder to Trustees for 99 years to support the Remainders it s a good term to support the Remainders notwithstanding the same is limited and inserted after the limitation to the first Son it being in the case of a Will That the term limited to the Trustees in the Will for their Lives for the preservation of the contingent Remainders to the several Sons of the said Lawrence Rooke was a good Term and a State to support the said contingent Remainders notwithstanding the same is limited to the said Trustees and inserted in the said Will after the limitation to the first and other Sons of Lawrence Rooke in Tail Male for the same being in the Will and the intent of the Testator plainly appearing so in the Will they held the said Plea and Demurrer to be good and so dismist the Plaintiffs Bill Trethervy contra Hoblin 26 Car. 2. fo 114. THe Plaintiff being a Purchaser of the premisses Bill to discover a Title calls the Defendant to discover his Title who insists on a long Lease of a 1000 years which was found by Verdict for the Defendant And the Defendant insists for Cost Costs for that the Plaintiffs Suit in this Court was causlesly and vexatiously brought by the Plaintiff The Plaintiff insists 〈◊〉 That he being not able to try the validity of the said Lease at Law during the life of Oliver one of the Defendant This Court is satisfied Suit for discovery and to preserve Testimonies and the Plaintiff to pay no Costs that the Plaintiff had good ground to bring this Suit for a discovery and relief and to preserve the testimony of his Witnesses it falling out to be a severe Case upon the Plaintiff so no reason for the Plaintiff to pay any Cost either at Law or in this Court Boughton contra Butter 32 Car. 2. fo 379. THis Cause was referred to Sergeant Rainsford to certifie touching the Inclosure whether advantagious and whether the Parties had consented thereunto who had drawn up a Certificate Certificate ordered to to be filed though not delivered in the life of the Certifier all written with his own Hand but he dying before he had declared the same It was prayed by the Plaintiff that the said Certificate might be filed and taken to be authentick as if he had delivered the same to either party The Defendant insisted That the said Certificate had no date and that the Sergeant never intended to deliver the same This Court Ordered the said Certificate to be filed notwithstanding the Objections made thereto by the Defendant Tucker contra Searle 31 Car. 2. fo 423. THat John Bassano the Plaintiff Frances Father by deed 20 July 1640. Marriage Settlement in consideration of a Marriage between him and Elizabeth the Plaintiff Frances Mother and a Marriage Portion Covenanted to stand seized of Lands to the use of the said John and Elizabeth for their lives and after to the first Son of the said John and Elizabeth and so to the second third and other Sons and the Heirs of their Bodies remainder to the right Heirs of the said John Bassano the Elder for ever on Condition and Limitation that if the said John Bassano should have Issue Female and not Issue Male by Elizabeth then his Right Heirs to pay the first and second Daughters of the said John by the said Elizabeth 300 l. a piece to be chargeable on the said Lands and if more than two Daghters then the said Lands for the full value of them to be sold should equally be divided amongst such Daughters that the said Bassano had no Issue Male by Elizabeth but had Issue Female viz. Elizabeth their Eldest Daughter the Plaintiff Frances their Second and another Elizabeth their youngest that Elizabeth the Eldest died in the life of her Father and Mother and that at the death of John the Father there being only the Plaintiff Frances living but the said Elizabeth the Mother being ensient with Elizabeth the youngest Daughter of the said John Bassano
by Will John Bassano taking notice of the aforesaid deed provides that in case Elizabeth his Wife were with Child of a Son then his Executors to pay to the Plaintiff Frances 300 l. but if a Daughter then he had otherwise provided for the Plaintiff Frances and such Daughter by deed and shortly after dyed leaving John Bassano his Son and Heir by a former Venter and shortly after the said Elizabeth the youngest Daughter was Born and died in a Month after and in 1666. Elizabeth the Mother dyed leaving the Plaintiff Frances whereupon John Bassano the younger took the Plaintiff Frances in Guardianship and having the said Will and Deed in his Custody pretended to her she had but 300 l. Portion left her by her Father That in 1669. the Plaintiff Tucker and the Plaintiff Frances inter-married and John Bassano still concealed the said Will and Deed that the Plaintiff Tucker and John Bassano the younger agreed that the 300 l. left to the Plaintiff Frances by her Father should be laid out on Security or Purchase for the benefit of the Plaintiff Frances for life in case she survived the Plaintiff Tucker and accordingly the Plaintiff Tucker Sealed a Deed 10th of December 1669. whereby the Plaintiff released the said 300 l. to the said Bassano the younger upon Trust and the said Bassano Covenants with the Plaintiff that he his Executors or Administrators should either continue the said 300 l. in his or their Hands at Interest or lay out and dispose of the same upon Security or Purchase and permit the Plaintiff Tucker during his life and the Plaintiff Frances during her life to receive the Interest and Benefit thereof and to the Plaintiff Tucker and his Heirs Executors c. That in 1671. Bassano the younger died and made the Defendant Searle his Executor and the said Searle refused to pay the said 300 l. pretending the want of Assets And the Plaintiff Tucker insists to have the said 300 l and interest to be chargeable out of the Walthamstow Lands in regard the said Lands were originally charged therewith but the Defendant the Executor says the said Lands are sold by him to one Woots and the Plaintiff Tucker insists that such Sale was without notice of the Plaintiffs Title and charge of the said 300 l. on the said Lands and that Woots had Collateral Security to secure him against the Plaintiff wherefore in regard the said Lands were Originally charged with 300 l. and the Plaintiffs were drawn in to accept of the said Covenant which is but a personal Security by the contrivance of Bassano the younger who kept the Plaintiff ignorant of the said Deed and Will for that the Plaintiffs Release is only upon Trust for payment of the said 300 l. the Plaintiffs do insist that in equity the said Lands ought still to be chargeable with the said 300 l. and interest and ought not to rely on the said Covenant The Defendant Searle insists that Bassano Junior by his Will devised the Walthamstow Lands to be Sold for payment of his Debts and Legacies which was Sold to Woots as aforesaid for 1260 l. and gave him Collateral Security by Bond of 1500 l. to secure him against the Plaintiffs demands and that the whole Personal Estate of the said Bassano Junior by Sale of Lands and otherwise fell short to pay the Plaintiffs demands the said Searle the Executor having paid Debts of a higher nature and say that the Plaintiff cannot have their whole demands but must come in proportion with other Creditors And the Defendant insists That the Walthamstow Lands ought not to be charged with the said 300 l. for that on a Bill in this Court exhibited by the Plaintiff against Bassano Senior whereby the Portions of the two Elizabeths Sisters of the Plaintiff Frances were demanded to be chargeable on Walthamstow Lands and alledged that Bassano Junior had secured the 300 l. being the Plaintiff Frances Portion by the said deed of Covenant and prayed to have the said two Elizabeth's Portions or the value of the Lands deducting the 300 l. secured to the Plaintiff Frances and in October 25. Car. 2. it was decreed that the Plaintiff should have the 300 l. which belonged to the youngest Elizabeth and the said Lands to be chargeable therewith But the Court then declared they could not decree the 300 l. claimed by the said Plaintiff Frances in her own right but that she must rely on the said Deed of Covenant Defect in a Bill for that they did not complain thereof by their Bill And the Defendant insists that the said decree being Signed and Inrolled the said 300 l. ought not to be charged on the said Lands but that they ought to rely on the said deed of Covenant they having thereby released the said Lands That the Defendant Searles cross Bill is for relief against a Bond of 600 l. on which he is Sued at Law and for Equity did insist Cross Bill for Creditors to take their proportionable shares but the debts having been paid to them and releases given dismist That he was Sued here by the Plaintiff Tucker and his Wife for the 300 l. aforesaid and that there was a decree against him in this Court at the Suit of one Whitton one of the Defendants to that Bill for 700 l. so that if the Plaintiff Tucker and other Creditors should recover their demands there will not be Assets and therefore prayed that the Plaintiff Tucker and Callwall might take their proportionable shares of what Assets was left but the Plaintiff Tucker insisted that the said 300 l. was originally charged on Walthamstow Lands by the said Marriage Settlement and was not discharged by the said Covenant or Release The said other Creditors Callwall c. insists That they have a Verdict against Searle the Executor for the Money due on the said Bond upon Evidence of Assets in Hands and had taken him in Execution and he had paid the said Money thereon and the said Creditors had released the said debts and therefore ought not to be farther troubled for the same This Court declared Lands originally charged with the payment of Portion and a release and covenant in Trust doth not discharge the same the said Walthamstow Lands were originally charged with the Plaintiffs 300 l. and that the said deed of Release and Covenant being made only in Trust for payment of the said Money and when the Plaintiffs were not told of the said Deed and Will did not discharge the same but the said Lands ought to make it good without damages although there were not Assets in the Executors Hands in regard the said Lands were sold under notice of the Plaintiffs demands and further declared he could not relieve the said Searle as against the said Callwall for that he by Coertion of Law had paid the Money recovered against him and the said Callwall had released the same to him and dismist Searles Bill Annand contra Honywood 32 Car. 2. fo
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
South-hampton and the Earl of Winchelsey and Sir Orlando Bridgman and the said Gape and others and their Heirs upon Trust as to Mudghill as he before had declared and as to the rest of the Mannours and Lands on Trust for payment of all such debts in the said Indentures to be paid and unpaid at his death and for freeing his personal Estate and Executors from the payment thereof and of the Trust in the Deed of 1652 for the Lady Jane Seymour and after these Trusts performed all the Lands unsold and the Reversion thereof be disposed by the Lady Dutchess of Sommerset his Wife and the Trustees by his Will and their Heirs for 21 years from his death to such as the said Lady Dutchess should appoint and in default of such appointment for the raising such sums of Mony for the Plaintiff Elizabeth's portion and maintenance as the Deed of the 20 of April 1654 appoints or in default of such appointment by the Dutchess to go to such Person to whom the Trust of the Inheritance of the premisses after the 21 years is limited by the Will and the conveyance so to be made to the said Dutchess and the other person named in his Will should be upon further Trust that the said Dutchess and the other person should stand seized of the said Lands unsold and the Reversion of such part thereof as should be leased out for lives or years in Trust for William Lord Beauchamp and the Heirs Males of his Body and for want of such Issue forthe benefit of John Lord Seymour for life and after for the benefit of the first and every other Son of his Body and the Heirs Males of their Bodies respectively and for default of such Issue for the benefit of all his Daughters and the Plaintiff the Lady Elizabeth Bruce his Grandchild and all the Daughters of John Lord Seymour and their Heirs equally as Tenants in common and not as Joynt Tenants which Will the said Duke in 1660 ratified by new publishing thereof and all the Trustees in the deed of 1652 being dead except Sir Orlando Bridgman and Gape and the interest in Law being in them by Survivor ship Sir Orlando Bridgman knowing the debts in the deed of 1652 to be paid conveyed all the Lands therein mentioned to the said Dutchess of Sommerset That in 1671 the said William Lord Beauchamp Duke of Sommerset died without Issue whose Heir the Plaintiff the Lady Bruce is and after the Lord John Seymour became Duke of Sommerset and died without Issue by whose death the Plaintiff the Lady Bruce is intituled as Heir to Duke William her Grandfather to the reversion in fee of Mudghill Duke John being only Tenant in Tail thereof and ought to injoy the same it not being liable to pay any debts but is discharged thereof by her Grandfathers Will and not disposed from her by any Act the 19100 l. being all paid So that the questions now before the Court were whether the reversion of Mudghill expectant upon Pleydalls Estate for life as well as the residue of the Estate be liable to all the debts which Duke William owed at his death or only to the 19100 l. debts And secondly Whether the reversion of Mudghill as well as the residue of the Estate after satisfaction of all the debts of Duke William ought to be for the benefit of all Duke Williams Daughters and the Plaintiff Lady Bruce and their Heirs equally or the said reversion to go intirely to the said Lady Bruce as right Heir to Duke William As to the first question the Defendant insisted the said Reversion as well as the other Estate is liable to all the debts for that by the deed of 1652. Mudghill was conveyed for raising of Money for the payment of 19100 l. debts and all other debts that he should owe at the time of his death in which deed it is provided that after the said debts be paid he might by any deed or his last Will Revoke all or any of the said Trusts other than as concerning the 19100. debts yet made no Revocation other than by his last Will and therein he Revoked only those Trusts that were for the benefit of the Lord Beauchamp or the Lady Elizabeth Seymour or his own right Heirs and by the said deed the Legal Estate in Mudghill is setled in the Trustees and their Heirs and the Duke had no power to Revoke the uses or Estates till after the 19100 l. was paid and the said Duke directing his Trustees to convey Mudghill to his Son John he did thereby dispose of an equitable interest only of the reversion of Mudghill and the 19100 l. was not paid in the said Dukes life-time but great part remains unpaid and he hath contracted several new debts since the 20th of April 1654. which the Defendant since paid upon the Securities of the said Lands and Mudghill is one of the Mannours conveyed by the deed of 1652. for the payment of 19100 l. and all other the debts he should owe at the time of his death and altho' the same be directed by the last Will of the said Duke to be setled upon the Lord John Seymour and his Heirs Males yet the said Duke by deed of 1652. had no power to revoke the same for the payment of his debts or if he had he did not revoke the same by the said Will but left Mudghill and other the premisses subject to the payment of his debts and the Trustees understanding such to be the Dukes intention never setled Mudghill on the said Lord John Seymour who being lately dead without Issue the same is subjected to the payment of the said Duke Williams debts and when debts are satisfied the overplus of the Moneys and the said Mudghill and all other the premisses ought to be divided according to the intent of the said Dukes Will and by the said Dukes death and the Releases of the said Trustees the interest in Law became vested in Sir Orlando Bridgman and he conveyed Mudghill c. unto the said Dutchess and the said Gape and other the Trustees and their Heirs that they might therewith pay the said debts and though there be sufficient besides Mudghill to pay all the debts yet by the Will upon which this question doth arise that thereby the Trust for the Right Heirs of the said Duke are revoked in express Terms so that by any deed preceding the said Will the Plaintiff the Lady Bruce cannot claim any advantage as Heir the rather for that by the Will it doth appear that Duke William had an equal regard to his own Daughter and the Plaintiff the Lady Bruce his Grandchild and Heir and it cannot be presumed that he would more concern himself for the Welfare of a Grand-daughter than his own Daughters nor was the said Reversion of Mudghill disposed to the Plaintiff by any words in the Will though he did by express words in his Will Revoke all Trusts for the benefit of his Heirs in
Mudghill as well as the other Lands and made other particular provisions further which shews he did not intend that for her for if he had he would not have Revoked the former Trusts as to that by which she would have been intituled as Heir especially when he hath devised all the Surplus of his Estate which involves Mudghill as well as the rest amongst his own three Daughters and her equally nor doth it any where appear that Mudghill is in any sort exempted from Satisfaction of the Creditors nor could it so be by the said deed made by Sir Olando Bridgman who best knew the intention of all Parties in this matter But the Plaintiffs insisted That the said Duke could not intend Mudghill should be conveyed to the uses declared in the Will for that the same is to be conveyed to the said Lord John and the Heirs Males of his Body which is an Estate of Inheritance and he had power by a common Recovery to have bound the remainder and the reversion after the Estate tale is not Assets in Law and therefore cannot be conceived for the payment of his debts and the rather for that he recites deeds in 1652. and April 1654. and directs the Trustees therein to convey all his Lands and Mannours in those deeds to his Dutchess and others as to the Mannour of Mudghill as before he declared by his Will and as to all the rest of the Mannours he declared for the payment of his Debts so that all the rest excludes the Mannours of Mudghill and upon the whole Will it doth appear the Duke intended no Reversion should pass but Reversions after Estates for life or years and therefore this Reversion of Mudghill which is after an Estate Tail doth not pass and if it had been intended to pass he would have limited it to the said Lord John for life without remainder to his first or other Sons in Tail for he had before given him a better Estate in Mudghill to him and the Heirs of his Body and the Trustees were not to settle Mudghill accordingly until the same fell in possession the same being yet for Pleydalls life This Court on reading the several Deeds and Will declared That although the Lord John might possibly have an Estate Tail in him and doct it but he not doing it this Court can take no notice of it though probably he did forbear to do it because Duke William had Signified his desire Reversion after an Estate in Tail subject to Trusts for payment of debts that he should not have an Estate executed to him till it should fall in possession and not before except the Trustees pleased But the case must be taken as it doth appear before the Court that is Mudghill was once liable to the payment of the Debts of Duke William and tho' 't is pretended that the Will hath taken out Mudghill yet the said Will doth only take out an Estate Tail but the Revesion thereof when the same falls in possession is subject to the same Trust and goes in company with the other Reversions and the same is legally conveyed and doth pass in the general words and therefore this Court is of Opinion that the Reversion of Mudghill is part of the unrevoked Estate and that the Lord Bridgman did well when he made the said Conveyance to the Lady Dutchess and that when the 19100. l. and the said other debts are paid to which Mudghill is as well liable as the other Mannours and Lands then the Trustees ought to convey all the premisses in Fourths and decreed accordingly Maddocks contra Wren 32 Car. 2. fo 22. THe question in this Cause is Mortgage Account with what profits the Defendant Wren shall be charged in ease of the Plaintiff who claims the premisses in question by virtue of a second Mortgage and is admitted to a Redemption on payment of what shall appear due to the Defendant Wren who hath the prior Mortgage The Plaintiff insists That the said Mortgage being of a Lease and the Defendant Wren having possession by Attornment of Tenants he ought to have received the profits whereby his Mortgage would have been fully satisfied yet he permitted the other Plaintiff Dorothy Wife of the Plaintiff Maddox the Mortgager to receive the same and therefore the said Wren ought to be charged whereby the Plaintiff may be let in to have Satisfaction of his Debt This Court declared The prior Mortgagee upon Redemption by the second Mortgagee shall be charged with the profits by whom soever Received after the Second Mortgage That the Defendant Wren ought to be charged with the Rent whether received by the Wife or any other Person after the Plaintiffs second Mortgage made but all received by her before the said second Mortgage he ought not to be charged Coles contra Hancock 32 Car. 2. fo 112. THat Benjamin Coles the 11th of June Revocation of a Will 1678. made his Will in writing and thereby gave to and amongst his then Children naming them viz. Benjamin Samuel Mary and Hannah Portions and appointed his Real Estate to be Sold and added to his Personal Estate and made Elizabeth his Wife his Executrix and the Testator being a Melancholy Person and fearing he might forfeit his Estate by making himself away to prevent a forfeiture by deed the 14 of June 1678. made over all his Personal Estate to Trustees first to pay his debts then to pay some Legacies and all the rest of his Estate to be divided amongst the aforesaid four Children That the Testator afterwards died a natural death but before his death had another Child viz. Sarah who is not provided for either by the said Will or Deed. The question is whether the said Will be Revoked by the said Deed of Trust that if it be Revoked then the said Sarah insists to have her share of her Fathers Estate and that he ought to be looked upon as dying Intestate and at least the Personal Estate ought to be distributed by the Act for distributing Intestates Estates and the deed ought not to stand in her way for that great part of the Estate did consist in debts which were made after the said deed and did not pass to or was vested in the said Trustees and that it is against Natural Right and Conscience that her Father leaving a considerable Estate she should have nothing of it This Court on reading the said Deed and Will is of opinion A Deed of Trust no Revocation of a Will that the said deed of Trust is no Revocation of the said Will being not made with intent to revoke the same but only to prevent the forfeiture in a case which never hapned and Decreed the same to be set aside and the Personal Estate to be distributed according to the Will and the remainder to be divided amongst the four Children Benjamin Samuel Mary and Hannah Estate Devised to be sold for increase of his Childrens Portions and a Child
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
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
and then to have the whole Term. And if such second Son die before he comes of Age then the third Son to have and receive as aforesaid and if such Son die before he likewise comes of Age then the fourth Son to have and receive as aforesaid And in Case of no Issue Male between Sir Henry and Elizabeth living at the time of the death of the Survivor of them who shall live to their Age and that there shall be one or more Daughter or Daughters of the said Sir Henry and Elizabeth that then the said Daughter or Daughters their Executors and Administrators to have and take their several equal shares and proportions of the said Rents Issues and Profits for and during the said Terms Unless William Massingberd the new Plaintiff should within six Months after the death of the Survivor of them the said Sir Henry and Elizabeth pay such Daughter or Daughters or secure the several Sums following viz. if but one Daughter 1000 l. and if more then to every one of the rest 500 l. a piece and after the same paid or secured in case there shall be no such Son or Daughter living at the time of the death of the Survivor of the said Sir Henry and Elizabeth or which should live to attain his or her Age then the Residue of the said Terms to go and to be to Sir William Massingberd the now Plaintiff his Executor and Administrators Sir Henry Massingberd dies in Sept. 1680. leaving his Wife Elizabeth Ensient of a Son after born and named Henry who died within six Weeks after Sir Henry and Elizabeth had no other Issue which Elizabeth is now the Defendant Quere Who is eldest Son of Sir Henry Whether the said Devise to William Massingberd the now Plaintiff be good The Case upon both Deed and Will That Sir Henry Massingberd being possed of two several Terms Deed of Trust and Will one for 500 and the other for 99 years by the Indenture 2 Nov. 1679 made an Assignment thereof to Trustees upon Trust To permit and suffer him the said Sir Henry and his Assigns to receive the rent and profits during his life and after his death to permit the Defendant Elizabeth then Elizabeth Rayner his intended Wife to receive the Rents and profits during her life then upon Trust to assign the residue of the said Terms to such person or persons and for such Estates and Terms and in such manner as the said Sir Henry should by Will in writing nominate limit and appoint give devise or dispose thereof or any part thereof and in case the said Sir Henry should die Intestate or should not by his Will nominate limit appoint give devise or dispose of the same and every part thereof that then the Trustees should permit the eldest Son of the Body of the said Sir Henry on the Body of the said Elizabeth to receive the Rents Issues and profits of the premisses undisposed of by the Will of the said Sir Henry till he should attain his Age and should then assign to him his Executors and Administrators the residue of the said Terms and in case the eldest Son should die before Age then the Trustees should permit the second Son to receive the Rents and profits with the like Trust to Assign to him at his Age and so to the 3d and 4th Son in like manner And in case of no Issue male between them at the time of the death of the Survivor of them the said Sir Henry and Elizabeth which should live to attain their respective Ages and that there should be one or more Daughter or Daughters between them that then the Trustees should permit the said Daughter and Daughters her and their Executor and Administrators to take their several equal shares and proportions of the said Rents Issues and profits not devised or disposed of the Will of the said Sir Henry for and during the said Terms unless William Massingberd the now Plaintiff the eldest Son and Heir of the said Sir Henry by a former Venter should within six Months after the death of the Survivor of them the said Henry and Elizabeth pay unto such Daughter or Daughters or secure to the good liking of the Trustees the several Portions therein mentioned for the said Daughter or Daughters and after the said Portions paid or secured or in case there should be neither Son nor Daughter living at the time of the death of the Survivor of them the said Sir Henry and Elizabeth or that should live to their respective Age that then the Trustees should assign the residue of the said Terms to the said William Massingberd his Executors and Administrators Then there is a power of Revocation in the said Sir Henry by Deed or Will to revoke and make void this present Deed and the Estate and Estates Trust and Trusts of the premisses or any part thereof After this Sir Henry made his Will in writing and the Defendant Elizabeth his Lady Executrix Residuary Legatee and Residuary Legatee and devised in these words viz. I do hereby give unto her all my Estate which I have by Deed setled upon her according to the true meaning and intent of the said Settlement And also I give her all those other Lands hereby hereafter Setled upon her according to my true intent of my Settlement thereof for her life or on my Issue by her And I do also give her all my Estate concerning my interest in the Colledge Leases from John Rutter of Canterbury and also all my Goods and Chattels not hereby otherwise disposed of I will that all the Coppyholds any ways appertaining to Paston be taken to the use of my Ececutrix and also the Bishops Lease when need is that it be renewed also to her use and also the Lease for 500 years of Paston all at her charge according to the true intent of my Settlements upon her which I hope my Son William will endeavour as before the Almightly to make good unto her and hers and if either I have no Issue by her or that they or their Issue all die so that the succession be expired Then after my Wives decease I hereby give upon my Sons wilful neglect or refusal of his duty herein and not otherwise all my said Lands not setled on him by his Marriage to all the Daughters of my Daughters Sanderson and Stoughton to be divided among them Yet always provided that if my said Son neither neglect nor refuse any reasonable duty herin Then my Will is that after my Wives decease and that all her Issue by me be either dead or have their Portions paid them as is provided That then all my said Lands setled on her for life whether Copy hold Lease hold or Freehold with all the rest unsetled shall discend and be to him and his Heirs for ever Sir Henry Massingberd left no Issue living by that Wife but left his said Wife Ensient of a Son born alive and named Henry but
Jane his Daughter for her life and after to John Colley her Son and Heir and his Issue Male and for want of such Issue in Trust for the Daughters of the said Jane and after the death of Jane and John Edward was intituled and he together with Sir John Wirley the Surviving Trustees upon Edwards marrying with the Plaintiff did Demise to the said Defendants the Trustees the Mannor-house c. for the Term of 20 years in Trust to pay certain Annuities therein mentioned and to permit Edward Colly for his life to receive the profits of the residue and in case the Marriage took effect and the Plaintiff Ann Survived him then to pay her 130 l. per Annum for her life and after Edwards death to permit the Heirs males of their two Bodies to receive the residue of the profits and for default of such Issue male there is provision for Daughters and supposes the residue of the profits may be limited to any Issue male of Edwards and for want of such Issue to permit the Defendant Jane and Ann since deceased Sister of the said Edward to receive the profits of the Estate as the Deed expresses and that he remembred no other Agreement than what is mentioned in the said Deed and sets forth the Deed of 21 Jan. 26 Car. 2. whereby the said Defendants the Trustees were intituled by Sale or Leases to pay debts and after payment thereof if the Plaintiff Ann should be then living should permit her to receive the residue of the profits for her life and afterher decease the right Heirs of Edward to receive the same that after the time of executing the last mentioned Deed the said Edward made his Will and after some Legacies took notice of the said Deed bearing date the day before and it was declared thereby that the Defendants the Trustees should out of the profits pay all his debts and being fearful those profits should not do did Devise to them all the rest of his personal Estate and made them Executors and after debts paid the residue to the Plaintiff Ann. That Nov. 1676 Edward Colley died after which the said Defendant proved the Will and entred on the Estate But the Defendants Ciber and Jane his Wife insisted That the said Defendant Jane being the only Sister and Heir to Edward Colley are after his debts intituled to the premisses for a long Term to commence after the death of the Plaintiff Ann and have sold their interest to the Defendant Benson Upon reading the said Deed and Will A Term in gross and not to be Entailed the Lord Keeper North was of opinion that the said Term so as aforesaid Created was a Term in gross and so not capable of being intailed and therefore it could not descend to the Heir of Edward Colley but that the same should be liable to the payment of his Debts and that the Plaintiff Ann should hold the 130 l. per An. for her life and after the said Debts paid the Plaintiff Ann should receive the profits of the whole Estate for her life charged with the said Annuity and the said Plaintiffs were to redeem the Mortgage to the Defendant Woodward But as to the Residue of the said Term after the death of the Plaintiff Ann and debts paid how the same should be disposed a Case was ordered to be made A Case being Stated this Cause came to be heard thereon before the Lord Chancellor Jefferies and all the former pleadings being opened as also the Defendant Cibers cross Bill which was to this effect viz. to have the said Term of 820. years to attend the Inheritance and the Case stated appearing to be no otherwise than before is set forth His Lordship on reading the said Deed and Will A Residue of a Term after debtspaid and a life determined Decreed not to the Residuary Legatee but to the Heir the Question being who shall have the remainder of the Term in the said Lease whether the Plaintiff Ann as Residuary Legatee or whether she shall have only an Estate for life his Lordship declared that the Deed and Will do make but one Will and by them there was no more intended to the Plaintiff Ann than an Estate for her life and that she ought to enjoy the whole Mansion House cum pertin ' during her life and also the overplus of the profits of the Residue of the said Estate after Debts and Legacies paid and the Defendant Benson who purchased the Inheritance of Ciber to enjoy the same discharging all things as aforesaid Hall contra Dench 36 Car. 2. fo 799. THat the Plaintiff Grace Hall Will. Revocation being Daughter of William Knight deceased who was Son of Susanna one of the Sisters and Coheirs of Thomas Bridger deceased which said Thomas Bridger being seized in Fee of Lands in Binstead and Middleton and having no Children made his Will in 1663. by which he gave to Tho. Knight Son of the said Willi. Knight all his Lands in Binstead to the said Thomas Knight and the Heirs of his Body and for want of such issue then to the Plaintiff Grace and the Heirs of her Body with Remainders over and by the same Will Devised one Moiety of the Lands in Middleton to the said Thomas Knight and the Heirs of his Body with the like Remainders over and sometimes after the said Will the said Thomas Bridger Mortgaged the said Lands in Binstead to John Comber and his Heirs for 500 l. and the said Bridger repaid the 500 l. and had the Mortgage delivered up and Cancelled but no Reconveyance of the Lands and that the said Comber after that was but a Trustee for Bridger the Mortgagee who in 1682. declared that the Will he made in 1663. should stand and be his last Will and then denied But the Defendant Dench having got the Cancelled Deed in his Custody and the Plaintiff brought an Ejectment under the Title of the Will and got a verdict for the Lands in Middleton but the Defendant at the Tryal setting up a Title in the Defendant Comber upon the Cancelled Mortgage for the Lands in Binstead a Verdict passed for the Defendant so to have the said Mortgage deed delivered up and the Plaintiff to enjoy the premisses according to the said Will is the Bill The Defendants as Co-heirs at Law to Bridger insist That the Testator Bridger never intended that the Estate should go as that Will directed in regard he soon after the said Will Mortgaged the same to Comber and besides the Legatees and Executors in the said Will were most of them dead before the said Bridger and the Mortgage money was not paid till after the Estate forfeited and that the Mortgage to Comber was an absolute Revocation of the said Will and upon an Ejectment brought by the Plaintiff under the said Will the Defendants obtained a Verdict for the Lands in Binstead wherein the validity of the said Will was in issue The Plaintiffs insist That the Verdict obtained
by the Defendants as aforesaid was by reason the Title in Law was in Comber the Mortgagee and not upon the Vallidity of the Will and that a Verdict had been had in affirmation of the said Will for other Lands therein mentioned and the Testator was in possession of the premisses at the time of his death This Court the Defendants insisting to have it tryed at Law whether a Revocation of the said Will or not declared there was no Colour to direct any Trial at Law in this Case for that on reading the proofs it plainly appeared When the Mortgage money is paid the Mortgagee and his Heirs are Trustees for the Mortgagor and his Heirs that the Testator expresly declared the said Will should be his last Will and that upon such an express proof it would be vain to direct a Tryal at Law and declared that when the Mortgage money was paid the Morgagee and his Heirs immediately from that time became Trustees for the Mortgagor and his Heirs and the Court having considered of several presidents as well Antient as Modern A Will and after that a Mortgage the Will is Republished its a good Will and not revoked which were full in the point that notwithstanding such Revocation yet there was a Republication of the Will and that the same was a Republication of such a nature that made the said Will a good Will and decreed the Defendant Grace to enjoy the premisses according to the said Will. This Cause came to be Re-heard before the Lord Chancellor Jefferies who was well satisfied with the Republication and declared that notwithstanding the said Mortgage the Will was a good Will and not revoked and confirmed the former decree Pullen contra Serjeant R6 Cor. 2. fo 570. THe Bill is to have a discovery of the Estate of Ann Nurse deceased and a distribution to be made and the Plaintiffs to have their proportions thereof they being next of Kin to the said Ann Nurse viz. the Plaintiff Ann Wife of the Plaintiff Pullen Sister by the Mothers side of the said Testatrix Ann Nurse and the other Plaintiffs are of the same degrees of Consanguinity and so are Intituled to their equal shares of her Personal Estate Executrix dies before the Testator there shall be Administration cum Testamento annex ' and the said Ann Nurse made Ann the Wife of William Hodges Executrix who died before the said Ann Nurse and the said Ann Nurse died without altering of her Will That after her death the Defendant Serjeant a Relation to the said Ann Nurse took Administration of the said Ann Nurse's Personal Estate The Defendant insists That he being only Brother and one of the nearest Relations to Ann Nurse the Testatrix and her said Executrix dying before she Administred with the Will annexed and paid Debts and Legacies and is willing to Distribute as the Court shall direct and craves the Direction of the Court whether the Plaintiffs being of the half-blood shall have equal proportion with the Defendant and others of the whole blood This Court declared They of the half-blood shall have equal share of the Personal Estate with those of the whole blood That the Plaintiff who are of the half blood to the said Ann Nurse were equally intituled to a Distribution of the said Estate and to an equal share of the Defendant Serjeant and others who are of the whole blood and decreed the same accordingly Keale contra Sutton 36 Car. 2. fo 773. THE Defendant being Arrested in the Marshalls Court A Prohibition granted for Arresting in the Marshalls Court for matters arising in Berkshire for matters arising in Berkshire out of the Jurisdiction of that Court This Court granted a Prohibition which being Disobeyed an Attachment was ordered against the Persons Disobeying the same and the Defendant to proceed upon the same Carvill contra Carvill 36 Car. 2. fo 142. THat the Testator Robert Carvill by Will the fifth of June 1675. Will. and thereby gave the Plaintiffs several Legacies and also Legacies to the Defendants which he appointed to be paid by Sale of Lands after the death of his Sister Rosamond whom with the Defendants he made Executors and gave his said Executors residium bonorum and in 1678. died and the said Rosamond is dead That the Defendant Robert Carvill being the Eldest Son of Henry the Testators Brother is his Heir at Law who insists That the Testator made no such Will and that he claims the said Lands by Dissent or if any such Will was made the Testator was non compos at the making thereof and that no Person was named in the said Will to Sell the said Lands and insists on the Act against Frauds and Perjuries and Avers Statutes of Frauds and Perjuries That the Testator died not till 1680. and that he did not make and sign that Will according to the said Act there being no Witnesses that have Attested it according to that Act and doth therefore insist that the same is void in Law as to the Devise of Lands and that the same are come to him as Heir and he hath since Recovered the same at Law and insists also that the said Will is void in Law because no Person is appointed to make Sale and being but a voluntary Disposition for payment of Legacies and not Debts the Plaintiff ought to have no Relief to make the same good in Equity to the Disinherison of the Defendant the Heir at Law But the Plaintiffs insisted Though the Testator died after the said Act viz. December 1678. yet the Will was made long before the 24th of June 1677. and so is not within the intention of the said Act and that though no Person be in express words named to Sell the Lands yet the Sale ought to be made by his Executors and the Heir ought to be Compelled to joyn in the Sale The Defendant the Heir insisted That though the Will might be out of the provision of the Act being made before the making of the Act yet there is no good proof that any such Will was made or published by the Testator This Court directed it to Law on this Issue Devisavit vel non devisavit Will or not Will. and a Verdict passed for the Plaintiff This Cause coming to be heard on the equity reserved and this Court being satisfied with the Verdict which was viz. That the said Robert Carvill the Testator did make and publish such Will and thereby devised the said Lands to be sold as aforesaid This Court upon reading the Will Lands Devised to be sold and now express't to sell the same Executors Decreed to sell decreed the said Lands to be sold by the said Executors and the said Legacies to be paid thereout according to the said Will. Norton contra Mascall 36 Car. 2. fo 544. THE Suit is to have a voluntary Award performed A voluntary Award Decreed to be performed the Defendant insisted It being a voluntary
and Seisin This Court declared and was fully satisfied That in this Case his Majesty ought to be relieved Grant and Inrolment in the Dutchy-Court vacated and the Patentees decreed to Reconvey to the King and the said Grant set aside and made void and decreed the same accordingly and the Inrolment thereof in the Dutchy-Court vacated and the Defendants to procure those in whom the Estate in Law is to Reconvey unto his Majesty and the Defendants at liberty to apply to his Majesty for to have the Mony paid back which was paid to Sir Thomas Chichley and Cuxton as aforesaid Beckford contra Beckford 1 Jac. 2. fo 196. THat Richard Beckford Citizen and Freeman of London had several Children and by his Will in writing after Debts and Funeral Charges paid appointed one full third part of his Personal Estate to the Plaintiff Frances Beckford his Relict according to the Custom of the City of London and declared that Frances and Elizabeth two of his Daughters had been fully advanced in his life-time and that Mary and Jane two other Daughters had not and directed they should bring their Portions they had received into the third part of his Personal Estate belonging unto his unpreferred Children and they should have equal shares with his unpreferred Children Now the question between the Plaintiff Frances and the unpreferred Children how the said Estate should be divided by the Custom of London the Plaintiff Frances insisting that the Children not fully Advanced ought to bring what they had received into the whole Estate and then she ought to have one full third part of the whole Personal Estate insisting That every Widow of a Freeman ought by the Custom of London to be indowed with one full third part of the whole Personal Estate This Court declared the Custom to be The unadvanced Children by the Custom of London to bring in what they had received into Hotch-potch with with the Orphanage thirds after the Estate is divided into thirds and not with the whole Estate That the Testators two Children Mary and Jane who were not fully Advanced were to bring what they had received into Hotch-potch with the Orphanage thirds after the Estate is divided into thirds and not into Hotch potch with the whole Estate and decreed accordingly And what hath been received by any one more than their share and Legacies is to be Repaid as the Master shall appoint Halliley contra Kirtland 1 Jac. 2. fo 566. THat John Park Mortgaged Lands to the Defendant Kirtland for 60 l. Mortgage and was also indebted to the Defendant Sanderson 50 l. on Bond and the said Kirtland wanting his money Assigned the said Mortgage to the said Sanderson so that Sanderson on payment to him the money paid to Kirtland on the said Mortgage and his 50 l. on Bond and Interest is willing to Reconvey to the Plaintiff which they refuse to do This Court in as much as the Estate so vested in the Defendant as aforesaid The Plaintiff decreed to pay off a Bond of 50 l. as well as the Mortgage money upon Redemption is a Chattel Lease and so liable to debts and the Defendant having an Assignment of the Mortgage and his debt on Bond being a just debt declared that the Plaintiff ought not to be let in to a Redemption of the said Mortgage but upon payment of the said 50 l. and interest due on the said Bond as well as the Mortgage money and decreed accordingly Coltman contra Warr 1 Jac. 2. fo 566. THis Court would not Rehear a Cause after decree Signed and Inrolled No re-hearing after a Decree Signed and Inroled notwithstanding the said Cause had been opened since the Inrolement in order to Re-hearing and discharged the Order for Re-hearing Jones al' contra Henley 1 Jac. 2. fo 995. SIR Robert Henley by Will gives 100 l. Legacies a piece to all his Servants which Will is Dated the 10th of November 1680. and Sir Robert lived afterwards till the 7th of August 1681. but made no Republication of the said Will and the Plaintiffs as Servants to Sir Robert demands 100 l. apiece Legacy That these Servants viz. Jones Clerk Meeke Serle and Hanbury were all Menial Servants before the 10th of November 1680. and so continued till the 7th of August 1681. That these Servants viz. Litchfield Davies Deacon Booth Noon c. were all Servants at the time of his death but were not in his Service at the time of making of the Will that Cook and Hawkes were both Servants at the 10th of November 1680. but before the 7th of August 1681. were discharged from his Service That William Harris son was a Menial Servant the 10th of November 1680. but dyed before the 7th of August 1681. That Castilian Goddard c. were Servants at large but not Menial viz. as Steward and Bailiff before the 10th of November 1680. and so continued till the said 1681. but did not Inhabit in the House That Stranger and Long were Chairmen and agreed with after the said 1680. at 20 s. per week so The Plaintiffs insist That such that were his Servants at the time of his death ought to have the benefit of the said Devise But the Defendant insisted That none of the Plaintiffs can be any ways intituled to that benefit but only such as were Menial Servants before the publishing of the said Will and did so continue all along to be Menial Servants and live in the House with him to the time of his death This Court declared Who are Servants capable to receive Legacies by the general words of a. Will To all my Servants c. that none of the said Plaintiffs but such as were Servants to the said Sir Robert before the making the said Will and did so continue to be Servants to him until the time of his death could have any pretence to the said Legacy and such only as were his Menial Servants and lived all along in the House with him from before the 10th of November 1680. until the 7th of August 1681. and no others and ordered that Jones Clerk c. only and no other of the Plaintiffs be paid their Legacy of a 100 l. a piece by the said Defendant and ordered the Bill as to all the other Plaintiffs to be dismissed Fenwick al' contra Woodroffe al' 1 Jac. 2. fo 400. THat Doctor Smalwood deceased Agreement on Marriage to purchase Lands by Deed in 1672 conveys the Land and premisses to Trustees and their Heirs to the use of himself for life Remainder to Theophania his Wife for life Remainder to Mary their sole Daughter and the Heirs of her Body Remainder to his own right Heirs with a proviso That if his said Daughter Mary should then after Marry in his life time without his privity and consent first had then all and every the uses and limitations therein mentioned and made should cease and be utterly void That the said Mary
Countess who conceives her self to be Intituled as Grandmother to an equal share with any of his Brothers and Sisters and insists That the said Lady Katherine dying within less than a year after the Intestate Thomas Wentworth she was not by the said Statute Intituled to any share of the said Personal Estate her supposed Right being meerly a thing in possibility and Expectation which vanished by her death within the year And the Defendants insist That the Countess before her Marriage with the Plaintiff the Earl viz. in 1673. granted Lands to Trustees for 21 years if she so long lived in Trust out of those Lands and other Lands late of Sir John Wentworth to pay her 200 l. per Annum till the said Thomas was 12 years of Age for his Maintenance and after till 21 so much as the said Trustees thought fit and the Residue for the benefit of the said Thomas his Heirs and Assigns That the said Defendants with the Countesses Approbation out of the moneys arising by the said Trust made several Purchases in their own Names and declared the Trust thereof for the said Thomas Wentworth and his Heirs and the Defendant Dame Dorothy made other Purchases in her own Name with the said Thomas his momey which she received in Trust for him and insists that those moneys so invested in those Purchases in the life-time of the said Thomas in Trust are not nor at his death were any part of his Personal Estate but the Lands descend to the Defendant John Wentworth as his Heir That Sir John Wentworth died in 1671. and left a great Personal Estate which came to the Earl and Countess on their Marriage and that Sir John Wentworth died Intestate within the Province of York the Defendant John Wentworth being his younger Son unpreferred became Intituled to a third part of his Estate equally with his Widow by the Custom of that Province and by force of the said Act for setling Intestate Estates Thomas and John became Intituled with her to the other third part The Defendants farther insist That the said Earl is not nor can be Intituled to any share of the said Thomas Wentworths Personal Estate for that the Act of Parliament is only Authoritative and directive to the Ordinary and Administrator and there are no vesting words therein whereby to Intitle the Lady Katherine to a share of the Estate and that she dying before any distribution and within the 12 Months allowed to that purpose her share fell among her Surviving Brothers and Sisters and however if she was Intituled to any part it could only be to a half-share she being but of the half-blood to the deceased and that so in the Course of the Civil Law But the Plaintiffs insisted The said Act explained That though the Act of Parliament be only Authoritative and directive to the Judge and yet such Authority and direction in an Act of Parliament doth by Judgment and Implication of Law vest an Interest in the Wife Children and Kindred for whose benefit the Act was made as much as if it had been a bequest of residuum bonorum for that the Act appoints all Ordinaries whatsoever on granting any Administration to take the Bond prescribed thereby one Clause of the Condition whereof is to pay the surplus that shall be found due on such Administration account to such Person or Persons as the Judge by his Decree or Sentence to that Act shall limit and appoint and then appoints the Ordinaries and Judges repectively to order and make just and equal distribution of such surplus amongst the Wife Children or next of Kin according to the Rules and Limitations therein and the same to Decree and settle which is the very Title of that Act and that tho' there be Twelve months time given for distribution yet that is only with respect to Creditors and no way hinders the vesting the surplus in such persons as are appointed to have it immediately upon the Trustees death any more then a Legacy to be paid in futuro and that it is generally a much longer time before an Intestates Estate can be got in and the surplus known and if the Executors or Administrators of persons dying in the mean time shall lose their shares it will elude the intent of the Act of Parliament which was made for the benefit of the Wife and Children and Kindred generally And it will lye much in the power of an Administrator by retarding his Account to prevent another of his share nay it will be mischevous to the Administrator and those who shall claim distribution for that if no Interest be vested in any before an actual distribution by Decree or Sentence then no distribution can be by Agreement or Consent of the Parties nor let the occasions or necessities of any claiming distribution be never so great can any Administrator satisfie the payment of any part of the Estate till such Sentence or Decree made which the Law makes could never intend and if no Interest be vested by that Act then hath this Court no Jurisdiction to intermedle therewith for that the Act only directs the Ecclesiastical Judge Distributions according to the Act for setling Intestates Estates are made in Chancery as well as in the Ecclesiastical Courts to make a Decree or Sentence for distribution but the same vesting an Interest and there being no Negative Words that a distribution shall be sued for there and elsewhere several distributions have been made in this Court as well in the Lord Chancellor Finch his time and the Lord Keeper North's time as since and that the same is looked upon as a Point setled and that it is the constant course of the Ecclesiastical Courts to Decree the shares of any persons dying before distribution to the Executors or Administrators of such persons so dying and not to the Surviving person claiming distribution and this Act was intended as the Will of every Intestate and the Wife Children and Kindred respectively to be as well intitutled as if the Intestate had made a Will and so Bequeathed the same amongst them and for the half Blood and whole Blood the same hath made no distribution between them but appointed the distribution to be equal and that for the Monies alleadged to be invested in Lands such Purchases do not alter the nature of the Case for that Thomas being a Minor could not give Authority or Consent for it and he might have discended to it when at Age and dying in Minority the same still remains part of his personal Estate and the Land is but in the nature of a Mortgage or additional Security for it This Court declared they saw no cause or colour to Decree any share for the Desendant Dame Dorothy and conceives her no way intituled to any but as to the Plaintiff the Lord Winchelsey This Court declared they were fully satisfied that the said Act of Parliament doth immediately upon the death of an Intestate If any of the next
Kindid before distribution that share shall go to her or his Executors or Administrators and not to the Survivor next of Kindred to the first Intestate and before any actual distribution made vest an Interest in the respective persons appointed to have distribution of the surplus of his Estate as much as if it had been Bequeathed by Will and that if any one of them dye before distribution tho' within the year yet the part or share of such person so dying ought to go over to the Executors or Administrators of such party so dying and not to the Survivor or next of Kindred to the first Intestate and that the Lady Katherine was at her death well intituled to a share of her Brother Thomas Wentworths Estate as an Interest thereby vested in her notwithstanding she died within a year after the Intestate and before any distribution made and that the Lord Winchelsey as her Administrator is now well intituled therto and decreed a distribution and the Plaintiff the Lord Winchelsey shall have the Lady Katherines share and proportion of the said Thomas Wentworths Estate accordingly and the Plaintiff the Lady Elizabeth shall have a like share thereof with the Defendant Lister and John Wentworth 2 Jac. 2. so 315. The question being Whether the respective shares of the Plaintiff and Defendant Lister the said Lady Katherine and Elizabeth and the Defendant Lister being only of the half Blood to the Intestate and whether the Mony be vested in Lands or the Lands themselves should be accounted part of the personal Estate of the said Thomas Wentworth or not His Lordship ordered a Case to be made as to those two points The Case being viz That the said Thomas Wentworth died an Infant and unmarried leaving such Brother of the whole Blood and such Brother and Sisters of the half Blood as aforesaid who were his next of Kindred in equal degree and that upon his death a real Estate of near 2500 l. per Annum discended to the Defendant John Wentworth his Brother and Heir and that above 3000 l. of the profits of that Estate received in the Intestates life time by Dame Dorothy Norcliff and the said Trustees which belonged to him and his proper Monies were by them during his Non age and without any direction or power in their Trust but of their own Heads laid out in Purchases in Fee and Conveyances in their Names but in Trust for the said Intestates and his Heirs with this express Clause in the said Conveyances viz. in case-he at his full Age would accept the same at the Rate purchased the purchase being made with his Mony and for his advantage This Court as to the said two Points Half Blood to have an equal share with the whole Blood being assisted with Judges declared That the Plaintiff and the Defendant Lister ought each of them to have an equal share with the Defendant John Wentworth of the surplus of the personal Estate of the said Intestate and the distribution thereof ought to be made among them share and share alike and decreed accordingly And as to the other Point declared Trustees lay out the Monies of an Infant in Lands in Fee This shall be accounted part of his personal Estate he dying a Minor That the Monies laid out in the said Purchases ought to be taken and accounted for as part of the said personal Estate and distributed with the rest and decreed a Sale of the said purchased premisses and distribution thereof to be made as aforesaid Dom ' Middleton contra Middleton 1 Jac. 2. fo 793. THat Sir Thomas Middleton upon his Marriage with the Plaintiff Dame Charlotta Middleton Devise setled a great part of his Estate in Com' Flint and other Countries for her Joynture being seised in Fee of Lands in several Countries viz. Flint Denbigh and Merioneth and setled all his Estate on his first and other Sons on her Body in Tail Male and charged the same with several Terms of years for raising Portions for Daughters viz. If one Daughter and no Issue male 8000 l. and out of his personal Estate intending to make an addition to the Portion of the Plaintiff Charlotta his only Child and to increase the Plaintiff Dame Charlotta's Fortune and Joynture made his Will in 1678. and thereby reciting that whereas upon his Marriage-Settlement it was provided That if he should have a Daughter she was to have 6000 l. Portion as his Will was and he gave to his only Daughter Charlotta in case she should have no Son living at his death 10000 l. more as an addition to her Portion to make her up the same 16000 l. and for raising of the said portions and payment of his debts and Legacies he devised all his said Lands except his Lands limited for his Wives Joynture for her life unto Trustees and their Heirs in Trust to raise out of the Rents and profits of the said premisses the several Sums mentioned for his Daughters portion and the sums of Mony thereafter mentioned and Willed That till one half of the said Daughters portion should be raised his Daughter Charlotta to have 100 l. per Annum for the first four years and afterwards 200 l. per Annum till her moiety of her portion should be raised and after payment of the said portions maintenance debts and legacies he devised the said Trustees to stand seised of all the said premisses except before excepted to the use of the Heirs males of his Body with a Remainder to the Defendant Sir Richard Middleton his Brother for life without impeachment of Waste Remainder to his first Son and Heirs males of his Body with other Remainder to the Defendants Thomas Richard and Charles Middleton Remainder to the right Heirs of the said Thomas and he bequeathed to his said Daughter Charlotta the Plaintiff his Diamond-pendants which his Wife wore and bequeathed to his Wife Dame Charlotta after his death one Annuity of 200 l. per Annum for her life to be raised out of the profits of the said premisses and bequeathed the great Silver Candlesticks to go according to his Grandmothers Will to the Heirs of his Family with his Estate as an Heir Loom and bequeathed the use of all his Goods Stock and Housholdstuff to his Wife the Plaintiff Dame Charlotta for so long as she should live at Chirke Castle and from thence he left the same to his eldest Son and Heirs or such as should be Heir male of his Family according to the limitations aforesaid and his further Will was that his said Wife should have such proportion of the Goods Housholdstuff and Stock for the stocking and furnishing of Cardigan-House and Demean being part of her Joynture as should be judged fit by her Trustees that she might be supplied with Goods and Stock requisite for her House and left to whomsoever should be his Heir all his Stable of Horses and made the Plaintiff Dame Charlotta Executrix and died in 1683. leaving the
of his Real Estate on Trustees and thereby made a provision for the Maintenance of William the younger during his Minority and therefore they opposed the Plaintiff Frances getting Administration of William the Elder The said Plaintiff Frances Whitmore insisted That by the Will of William the Elder there was no joynt devise made to the said William the Son and the Issue Male and Female of the Sisters of William the Father but a several devise to William the Son with Remainder to the Sisters Issue and that the said William the Son having an Interest vested in him by the Will of his Father and being 18 years Old when he died and he having then a power to have proved his Fathers Will the Earls Executorship during his Minority being determined might have spent or given away the said Estate in his life-time he might surely give away the same by his Will which he having done to the Plaintiff Frances she is thereby well Intituled to the same and that the remainder over to Issue Male and Female of the Sisters the Estate being purely personal is absolutely void This Court hearing several Presidents quoted Devisee Infant lived to 18 years and makes his Will and Executors and dies the Executor shall have the Legacy for that an Interest was vested in the Infant declared That by the Will of the Father there was an Interest vested in William the Son and the remainder over to the Issue Male and Female of the Sisters of William the Elder was void and that William the Son living to 18 years and making his Will as aforesaid and the Plaintiff Frances his Executrix she is thereby well intituled to the surplus of the said personal Estate and decreed the same accordingly Whitlock contra Marriot 1 Jac. 2. fo 700. THis Case being upon a Scandalous Answer Defendant ordered to pay the Plaintiff 100 I for putting in a Scandalous Answer His Lordship declared the said Answer to be very Scandalous and Impertinent and that the expressions taken by the Defendant to the Masters Report were not only more scandalous but also Malicious and that it appearing that Ryley the Defendants Solicitor had put Mr. Lynn a Councellors Hand to the Exceptions without his Knowledge This Court Ordered the said Ryley to be taken into Custody of the Messenger and declared the Answer and Exceptions were not pertinent to the Cause but meerly to defame the Plaintiff His Lordship Ordered the Defendant Marriot to pay to the Plaintiff 100 l. for his Reparation and Costs for the abuse and scandal aforesaid and the said Ryley to pay 20 l. and to stand committed to the Prison of the Fleet till payment thereof be made Ash contra Rogle and the Dean and Chapter of St. Pauls 1 Jac. 2. fo 154. THis Case is upon a Demurrer Bill to enforce the Lord of a Mannour to receive a Petition in nature of a Writ of false Judgment to Reverse a common Recovery demurred to and the demurrer allowed the Plaintiffs Bill is to inforce the Defendant the Lord of the Mannour of Barnes in Surrey to receive the Plaintiffs Petition or Bill in the Nature of a Writ of false Judgment to Reverse a Common Recovery suffered of some Copyhold Lands in the Mannour by Susan Râ—gle Widow which the Defendant Râ—gle holds under the said Recovery the Bill setting forth that Katherine Ferrers by the Will of her Husband or by some other good Conveyance was seized in Fee of Free and Copyhold Lands in Barnes formerly her said Husbands in Trust to Convey 200 l. a year thereof upon William Ferrers her Eldest Son and the said Susan his then Wife and Heirs Males of the Body of William Remainder in Tail to Thomas Ferrers the Plaintiffs Father second Son of Katherine and the Heirs of his Body Edward being obliged by Articles upon Susans Marriage with his Son William to settle Lands of that value on Susan for her Joynture That Katherine on that Trust in 1642. surrendred the premisses to the value of 100 l. per Annum to the use of the said William and Susan and the Heirs of their two Bodies begotten remainder to the Right Heirs of William which was a Breach of the Trust in Katherine in limiting an Estate Tail to Susan when it should have been but an Estate for life That William died before the Admittance leaving Issue only his Son William and in 1652. Susan surrendred to one Mitchell against whom the Common Recovery in question was then obtained wherein one Walter was Demandant the said Mitchell Tenant and Susan Vouchee to the use of her self the said Susan for life the Remainder to William Ferrers and the Heirs of his Body the Remainder to the Right Heirs of the Survivor of them the said Susan and William her Son That William the Son died soon after and Susan died in 1684. and the Plaintiffs Father Thomas being dead without Issue Male in case the Common Recovery had not been suffered the premisses would have come to the Plaintiff being the youngest Daughter to her Father as Couzen and Heir both of William Ferrers the Father and William the Son the premisses being Burrough-English and so the Plaintiff was well Intituled to prosecute the Lord of the Mannour in the Nature of a Writ of False Judgment to Reverse the said Recovery wherein there are manifest Errors and Defaults but the said Lord refuses to receive the said Petition and combine with the Defendant Rogle who is Son and Heir of the said Susan by a second Husband who pretends that his Mother Susan surviving her Son William Ferrers the premisses are discended to him by virtue of the use of the said Recovery limited to the Right Heirs of the Survivor of Susan and her Son William so the Plaintiffs Bill is to examine the defects of the said Recovery The Defendants demur for that the Relief sought by the Bill is of a strange and unpresidented Nature being to avoid and reverse a Common Recovery had in the said Mannour 30 years ago and that upon a bare Suggestion generally that the Recovery is erroneous without instancing wherein which may be said in any case The Master of the Rolls declared That as that part of the Bill which seeks to impeach or reverse the said Recovery for any errours or defects therein or compel the said Lord to receive any Petition for reversal thereof or any ways to impeach the same his Honour declared That this Court being the proper Court to supply the defects in Common Assurances and rather to support than to assist the avoiding or defeating of them and there being no presidents of such a Bill as this is he thought not fit to admit of this nor to introduce so dangerous a president whereby a multitude of Settlements and Estates depending on Common Recoveries suffered in Copyhold Courts for valuable Considerations would be avoided and defeated through the negligence or unskilfulness of Clerks and therefore conceived the said Common Recovery ought
or any Estate therein contained or to dispose of the said Honours Manours and Lands in any other sort or to any other Person or Persons and his or their Heirs or for any other purposes and the same his Mind Intent and purpose should signifie and declare in Writing under his Hand and Seal in the presence of six Credible Witnesses three whereof to be Peers of this Realm and should pay to his Trustees or any of them the Sum of Six pence with intent or purpose to frustrate or make void the said Indentures That then and not otherwise and immediately after such Signification Declaration and payment or tender of payment of 6 d. as aforesaid the said Use and Uses Estate and Estates Trusts Confidence Intents and Purposes and all and so much of the premisses whereof the Duke should make such Signification or Determination should cease Determin and be utterly void to all Intents Construction and Purposes whatsoever and that then and from thenceforth it should and might be lawful for Duke by such Writing or any other Deed or Writing Subscribed Sealed and Testified as aforesaid to declare new or other Use or Uses Trust or Trusts of all or so much of the premisses whereof the Duke should make any such Signification or Declaration or otherwise to dispose of the premisses or any part thereof at his Free Will and Pleasure any thing in the Deed to the contrary notwithstanding And for the further prevention of the mischief and Inconveniences that might attend any future or suddain Surreptitious Will Covenant which might at any time defeat his Recited Will which he declares to have made upon Mature Deliberation Covenants for himself his Heirs Executors and Administrators with the Duke of New-castle and his Trustees that he would not Revoke Annul or Discharge the said Will or any the Legacies thereby devised unless by some instrument Sealed and Executed in the presence of many and such Witnesses as are in the said Proviso specified declared and described for Credible Witnesses within the said Proviso according to the Intention Literal Sense and true meaning of the Duke expressed in the said Proviso He denies the said Deed was obtained by Surprise but that the Duke executed the same in the presence of many Credible Witnesses and that the Duke left the Deed and Will in his keeping And as to so much of the Bill as requires the Defendant to give an account of what part of the said Dukes Personal Estate came to the Defendants Hands he is Advised by the Rules of this Honourable Court that he is not Compellable to Answer thereunto for that it appears by the Plaintiffs Bill that at the time of the Exhibiting thereof the Plaintiffs were not intituled to make such demand or to have such account it thereby appearing of their own shewing that they have not proved the said Will of 87. but that the same was and still is under Controversie undetermined in the Prerogative Court whereof or as to that part of the Bill he demurs As to the Objection That it was a Concealed Will and Deed the Defendants insist that it was done silently but the Duke would have it kept Secret that he might be free from Trouble and Importunity And they insist That as to the last Will of 85. That the Duke Advised with Councel to know whether a Will made after the Settlement would avoid or impeach the Settlement was answered that it would not and that Proviso must be strictly pursued whereupon he was well satisfied and that the said Deed ought to be supported and not set aside in Equity being made upon such Meâ—â—torious Consideration of Blood Merit c. The Plaintiffs insist That the said Deed if any such being a Voluntary Settlement only that the Will of 87. is a good Revocation thereof in a Court of Equity So that the great Question was if the said Deed it being found to be valid at a Trial at Law is Revoked by the said last Will according to Equitable Intention or Construction This Cause having been Debated and Argued several times by Learned Councel and afterwards by three Judges viz. my Lord Chief Justice Holt the Lord Chief Justice Treby and Mr. Baron Powell it was agreed by them that the Deed was a good Deed well executed and not Revoked by the Will of 1687. The Lord Chief Justice Treby's Argument in short was thus In 1675. the Duke made his Will and declares in respect that the Earl of Bathe was his Kinsman and had done many Kindnesses to him and his Family the Earl should have the greatest part of his Estate and gives several Legacies to one Monck and then he makes a Deed of Settlement in 1681. tho' the Limitations by the one and the other differ but it is not made to revoke but to confirm the Will Both the Will of 1675. and Deed of 1681. do agree in giving the greatest part of the Estate to the Earl of Bathe but the Proviso in the Deed makes the dispute and then there is a Will of 1687. wherein a larger Estate is given to the Dutchess and Colonel Monck c. and desires the Honour of Potheridge may be established on the Moncks The Plaintiffs Bill is to establish the Will of 1687. and set aside the Deed of 1681. and Will of 1675. And the Deed on the Hearing of the Cause was directed to be tried and a Verdict for the Defendant and the Plaintiff hath acquiesced under it and so this Deed must be taken as a good Deed and Conveyance without any suspicion for the Right was tried and the whole Contents tried and if it were good at Law whether there be cause to set it aside in Equity is the Question He was of Opinion That the Deed was a good Deed and ought not to be impeached in this Court The Plaintiffs Arguments against the Deed are 1. Surprize 2. Concealment 3. That the Will of 1687. is a Revocation in Equity 4. That there is a Trust As to the Surprize He observed they did not make use of the word Fraud in gaining the Deed but that it was something put upon the Duke for want of deliberation He said he was not satisfied that there was any Surprize on the Duke for he was not languishing at that time under any Sickness but it was done and executed in good Company and after dinner with great Consideration both before and at that time They pretend a want of Circumstances in the execution whereas Sir William Jones was advised with before the Deed sealed and present at the time of the sealing Several other Circumstances were insisted on by the Plaintiffs but none are sufficient to set aside the Deed. The Deed of 1681. and the Will of 1675. are not inconsistent tho' they differ in the limitation of the Estate But by both the greatest part of the Estate is given to the Earl of Bathe Tho' they could not find Instructions for drawing the Deed tho' the Deed was
in Equity to be an Evidence against the Deed so as there appears no Evidence that the Earl surprized the Duke or that the Duke was surprized As to the third point touching the Circumstances and Conditions of the Persons The Earl was a near Relation and had done many kindnesses to the Duke and his Family and was especially intrusted by him and though the other Persons that claim by the Will of 1687. may be of Relation to him yet he that hath the best Title hath the right And so it is in the Case of Persons where both claim under two voluntary Conveyances As to the fourth and last point touching the Circumstances the Duke was in when the Will was made the Duke when he made the Will was under a Restraint by the Deed of 1681. for his power was executed and the Duke had restrained himself And the Court of Equity hath no power to examine into the Reasons and Considerations for doing it and there may be Reasons for a Wise Man to Restrain himself for he may not know what surprize may be put upon him and as there may be reason for it so it shall be presumed there was good reason Further there is no Evidence of an Intention in the Duke to execute the power for he had an opportunity to have done it and because a Man may one way dispose of his Estate that therefore he may do it any way is strange and if that may be done it will overthrow all the Conveyances that are made They on the other side pretend the Duke had forgotten the Deed. It was made but in 1681. and well attested by Credible Witnesses and if he had forgotten it his Councel had an Abstract of the Deed and because a Man had forgot a Deed that ought not to be a cause in a Court of Equity to set that Deed aside for Memory may fail but a Deed is Permanent so there ought to be no relief against the Earl and those that claim by the Deed of 1681. Lord Keeper There be three Suits in this Court the Dutchess her first Eill is to set aside the Deed of 1681. And the second Bill by the Moncks much to the same effect and on the same Evidence And the third Bill by the Earl complaining of the Will of 1687. On the hearing of the Causes the 8th day of July 1691. before the then Lords Commissioners and on a Trial directed touching the Validity of the said Deed of 1681. there was a Verdict for the Deed and this Verdict hath not been stirred The Cause comes now to be heard on the Equity reserved on the whole matter I declare the Deed doth stand Unrevoked at Law and the Defendant the Earl of Bathe is well intituled under that Deed for here are no Creditors nor Purchasers or any Children to be provided for and the benefit that comes to the Earl is the Essex and the Northern Estate The Court did declare that there is not any sufficient matter in Equity appears to set aside the Deed therefore dismist the Bill of the Earl of Mountague and Christopher Monk so far as they seek relief to set aside the said Deed of 1681. and as to the other matters Equity to be reserved THE TABLE A UPon the Buying the Equity of Redemption of Lands in Extent Account decreed from the time of the purchase p. 392 Bond to perform a Marriage Agreement pleaded in bar of other Debts 103 Letters under ones Hand shall amount to a good Agreement within the Statute of Frauds and Perjuries 286 Mony Agreed upon Marriage to be laid out in Land shall be applied as the Land should have been had it been purchased 409 Annuity not being demanded in 40 years time conceived to be a Trust 221 The Defendant ordered to pay the Plaintiff 100 l. for putting in a Scandalous Answer 386 Bill to discover Assets Lands decreed to be sold to supply the Personal Estate 99 Legatees to refund to make up Assets 137 Lands purchased in Trust decreed Assets to pay Judgments 143 No resorting back to a defect in Articles after a Conveyance thereupon executed 107 Cross-Bills for setting aside or performing an Award 24 A voluntary Award decreed to be performed 304 B BAil to answer no more than what is exprest in the Ac etiam Billae 55 226 Bankrupts as to Partners 227 228 Joynt Debts 227 228 Separate Creditors 227 228 Relief against Over-reaching Bargains and how 266 270 The Bill not to be taken pro Confesso if the Defendant hath not appeared but a Sequestration shall issue out against him 284 Relief denied against a Bond entred into to a Solicitor to pay 100 l. when a Verdict should be recovered 21 Parson relieved against a Bond given for Resignation 398 C CErtiorari allowed to remove proceedings by English Bill in the Lord Mayorâ—s Court into Chancery 110 Conveyance with power of Revocation on payment of 12 d. at such a place 12 d. was tendred at another place with express declaration to revoke the Deed 74 Vide Revocation Plaintiff two days before the Commission for Examination of Witnesses was arrested by the Defendant and in Execution ordered to be discharged and the Defendant to pay Costs and be at the charge of a New Commission 22 Covenant to purchase so much Lands per Annum value 273 Voluntary Conveyance tho' a provision for younger Children not to prevent satisfaction of subsequent Judgments 265 Copyholder not to be admitted by Letter of Attorney 56 Fines of Copyholders whether certain or arbitrary it having been tried at Law the Court would not relieve the Plaintiff other than for the preservation of Witnesses 76 Of renewing Copies upon reasonable Fines 135 Vpon a Contract for Copyhold Estate and Purchase Mony paid the Bargainor dies before Surrender his Heir decreed to surrender 218 Surrender of Copyhold Land by Infant of 5 years Old 392 Costs from the time of their being Taxed shall carry Interest and shall Charge and be recovered out of the Assets 247 Where Costs to be paid or not 172 Bill for Creditors to take their proportionable shares but their Debts having been paid to them and Releases given dismist 218 D THe Court of Chancery will not try or ascertain Damages recovered at Law 63 Copies of Depositions not to be recorded or exemplified 36 Depositions suppressed and why 393 Blanks filled up after the sealing and execution of a Deed yet good 410 Distribution according to the Act for the better settlement of Intestates Estates 371 372 Such Distributions are made in Chancery as well as in the Ecclesiastical Courts 373 374 375 A 1000 l. to be raised amongst 5 Children one dies before Distribution the Survivors shall have the Share and not the Devisee of him that is dead 150 Decree in Chancery as effectual to charge the person as an Execution at Law 193 Executory Devises vide Perpetuities Term devised to B. and he die without Issue then to C. it s void as to C. 16 200 l.
Dower claimable by the Plaintiff and also devised the said Farms unto the Defendant Mary his Grandchild To have and to hold immediately after the death of the Plaintiff his Wife and by a subsequent Clause in the Will he devised all the Lands not therein before disposed of to the Defendant Thomas Kemp the Father for life Remainder to Thomas his Son for life with remainder over and also gave the Plaintiff his Coach Horses Plate and Jewels c. and one Third part of his clear Personal Estate And the Plaintiff conceived that she ought by the Will to have both the Rent-charge and the Farms for her life by the aforesaid devise 200 l. Rent-charge devised in lieu of Joynture and by the same Will an implicit Devise of the Lands to her Decreed she shall have only the 200 l. per Annum viz. where the same are devised to the Defendant Mary To have and to hold after the Plaintiffs death so to have the same by the said implicit Devise without Extinguishment of the said Rent charge is the Plaintiffs suit This Court declared they saw no Cause to decree both the Rent charge of 200 l. per Annum and the Farms aforesaid to the Plaintiff but the Rent charge of 200 l. per Annum to the Plaintiff only Boucher contra Antram 23 Car. 2. fo 97. THe Bill is Will. That Alice Lowman the Plaintiff Katherines late Mother did in Decemb. 1669. by Will give and dispose unto the Plaintiff Katherine a Legacy of 160 l. and made the Plaintiff who married another of the Daughters Executor The Defendant insists That the Testatrix made her Will in these words viz. Item I give unto my Daughter Katherine Boucher the sum of 160 l. for her to have the use of it during her life and her Child or Children to have it after her decease but if she happens to dye leaving no Child surviving her I Will that the said 160 l. shall be to and for the sole benefit and use of my Daughter Elizabeth Antram and her Children which Elizabeth is the Defendants Wife and the Defendant is willing to pay the said 160 l. to the Plaintiffs or either of them he being secured against the title and claim of the surviving Child or Children of the Plaintiff Katherine and if she should die leaving no Child or Children behind her then against the Title of said Elizabeth and her Children This Court decreed the Defendant to pay unto the Plaintiff 160 l. with full Interest Personal Estate devised to one for life and after to her Children and if they have no Issue the Remainder over is a void Devise as to the Remainder but as to the Clause on the Will which directs That for want of Issue by the Plaintiff Katherine the said 160 l. after her decease shall be to and for the benefit and behoof of the Defendants Wife and her Children His Lordship declared it being a Personalty is in the nature of a Perpetuity and so a void devise and therefore the Defendant nor his Wife and Children ought to have any benefit thereby but be debarred from the same and that the said 160 l. ought to be absolutely vested in and come unto the Child or Children of the Plaintiff Katherine and decreed the same accordingly Chambers contra Greenhill 24 Car. 2. fo 288. A Bill of Review brought by the Plaintiff Bill of Review because the Plaintiff can now prove a Tender and Refusal which he could not prove before dismist to Reverse the Decree in this Cause the Plaintiff would now Examine to a matter of Tender and Refusal which he could not prove before the Hearing but since the Decree signed and inrolled he can prove it The Court ordered Presidents to be searched which being produced by the Plaintiff his Lordship declared the said Presidents seemed of no weight to the Plaintiffs purpose and dismissed the Bill of Review Croster contra Wister 24 Car. 2. fo 688. THe Defendant insists Bill of Reviver The Plaintiff ought not to have brought a Bill of Reviver in this Case but to have taken out a Subpoena in the nature of a Scire facias to revive the Decree the same being signed and inrolled in the life time of the Plaintiffs Testator therefore the Defendant demurs to the said Bill The Plaintiff insists It is at the Plaintiffs election to revive the said Decree inrolled and to have Execution thereof by Bill or Subpoena in the nature of a Scire fac ' And as this Case is the whole Proceedings could not be revived by Subpaena Revivor by Bill or by Scire fac ' when proper in regard several Proceedings have been relating to Costs since the Decree which proceedings can be only revived by Bill and therefore the most proper course was to revive all things by Bill This Court held the said Bill to be well brought and held the Demurrer insufficient Stoell contra Botelar 24 Car. 2. fo 390. THat a Writ of Supplicavit of the Peace Supplicavit of the Peace on Petition and not on Motion nor any Indorsement on the back thereof yet good issued against Sir Oliver Botelar upon a Petition and Articles exhibited by the said Stoell The Defendant insists The said Writ issuing on Petition and not on a Motion in Court nor any Indorsement made on the back of the Writ as by the form of the Statute is required and but three of the said Articles are sworn to by the Articulate so it is irregular This Court on reading Presidents notwithstanding the Objections aforesaid of Botelar was fully satisfied that the Supplicavit was well granted and warranted Monnins contra Dom ' Monnins 24 Car. 2. fo 85. 178. BILL is to have the Defendant to discover Demurrer to a Bill for discovery whether the Defendant be married or not good for that if she be married it would be a forfeiture of her Estate and the Bill dismist whether she be married since the death of Sir Edmond Monnins her late Husband The Defendant demurred for that in case she was married since the death of her said Husband the same amounts to a forfeiture of her Estate and Interest in several goods and things devised to her by the Will of her said Husband to be held and enjoyed by her during such time as she should continue her Widowhood and so ought not to discover as aforesaid This Court held the Demurrer good unless the Plaintiff produced Presidents which the Plaintiff could not so the Bill was dismissed with Costs Warren contra Johnson 24 Car. 2. fo 543. THat Mary Warren Mony in Trust for the Children of I. S. it shall be for the benefit only of the Children that he then had and not born afterward the Plaintiffs Grandmother put 60 l. into the Defendants hands in trust for the benefit of the Children of Mark Warren her Son who at that time had but three Children whereof the Plaintiff was one but now hath six