Selected quad for the lemma: life_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
life_n	case_n	estate_n	remainder_n	5,475	5	10.8721	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A60878	The Arguments of the Lord-keeper, the two Lords Chief Justices, and Mr. Baron Powell, when they gave judgement for the Earl of Bath	Somers, John Somers, Baron, 1651-1716.; Treby, George, Sir, 1644?-1700.; Holt, John, Sir, 1642-1710.; Powell, John, Sir, 1645-1713.	1693 (1693)	Wing S4637; Wing A3646_CANCELLED; ESTC R17706	80,573	63

alive that he might have set all right but as the Matter now stands here it has rendred him very doubtful in the Case I confess I do believe Sir William Jones had too little Patience give me leave to say so and too much Skill to make such a Deed I speak as to the Art and Skill of framing it therefore I conceive he did not but Sir Thomas Stringer did As to the not reading of the Deed to the Duke the Defendants Counsel do object neither was the Will of 87 read to the Duke at the time of his sealing and publishing it So far is true that after it was ingrossed and brought to Sir Robert Clayton's it was not read to the Duke but the Particulars of it he had been acquainted with at the time of the drawing and so it might be as to the Deed too for any thing appears to the contrary That there was no Counterpart and that the Trustees were not acquainted with it the Answer is That the Duke did intend it as a Secret and therefore the less notice was to be taken of it and the Duke intending mainly by it an Advantage to my Lord of Bath it was thought sit to be concealed for some Reasons from the Dutchess But after all I know no such Rule in Equity I am sure none of the Precedents that I have seen come near to it that where there is a Deed for the making of which no Instructions are found no Proof of its being read to the Party at the Execution no Counterpart or the Trustees not acquainted with it that these are sufficient Grounds to set such a Deed aside in Equity I do not think any of the Precedents or all of them together and I am sure I have read them all will amount to prove any such thing The second Matter to make out the Surprize is some Considerations taken out of the Bowels of the Deed it self several Improprieties of Expression as in part of Dower and in full of Dower which are not Phrases that look like the Act of a Lawyer one well skilled in the Propriety of the Law-Dialect It doth likewise misrecite the Will of 75 that is particularly as to the Lands given to the Dutchess that they are given for Life when it was only during her Widowhood the Lands are said to be given to Mr. Greenville as if he were immediate Devisee whereas it is a Devise to him in Remainder after a Limitation to the Duke in Tail But certainly Improprieties of Expressions and Mis-recitals in Deeds are too slight Acts to avoid Deeds so made so attested so proved as this Deed in question has been They are rather and indeed Flaws and Objections that go to the Manner and Form than the Substance and shew rather want of Art in the Counsel that drew it than of Honesty or Integrity in the Deed it self besides that a Devise to one for her Widow-hood is a Devise for Life in one Sense and common Parlance though it be defeizable and a Devise to one in Remainder is a Devise to him though not an immediate one Another Observation out of the Deed it self is that here are Estates limited to the Duke's younger Sons out of Lands which he had no power to create or carve such Estates out of they being settled before upon his Marriage on the eldest Son and that is true it is so as to the Lands called Norton Disney But there are other Lands not comprized in the Settlement and all the rest that were new purchased were in his Power to settle as he pleased But the great Objection out of the Deed is this that this Deed doth in several places declare it self to be made to confirm and corroborate the Will of 75. How comes it then to pass that it should differ from it in all the Limitations except one and that in the Draught is of my Lord of Bath's own Writing and that part of the Estate is by the Deed to come to the Lord of Bath upon failure of the Duke's Issue Male only so that his Daughters are all wholly debarred To this I say what they object that there is rather a Contradiction than a Confirmation of the Will is true I am not satisfied I assure you in that which the Defendants say to it that the Confirmation of the Will is mentioned only as to preventing the Descent It is first mentioned there but I think it goeth through and is repeated more than once But that which I would observe is this that this Deed does confirm the Will in the main and substantial part of it the settling the Bulk of the Estate upon my Lord of Bath Besides the Expression of the Deed is not only for confirming the Will of 75 but also for the settling the Lands to the Uses after declared and if it doth not confirm every Limitation yet it doth agree in the substantial Settlement of the Estate It was further said that the only Limitation which agrees with the Will is that which in the Draught of my Lord of Bath's hand-writing where Lands are limited to my Lord of Bath after failure of Issue-Male with Exclusion of the Daughters which the Plaintiffs say it cannot possibly be imagined the Duke ever intended to do But I must mention what Answer the Defendants give to it They say the Duke had then 15000 l. a Year and he makes an Intercession to the King to bestow the Honour of Albemarle upon the Earl of Bath and that it might not go alone he limits 3000l a Year upon his failing of Issue-Male so that the Honour should come to the Earl and there was enough left for Daughters Now if their Valuation of the Duke's Estate be right which truly I know not it is some answer why some part should be given to the Earl only after the failure of Issue-Male But then I would observe too the Deed by this Obligation doth confirm the Will of 75 and that Will also affirm the Deed If the Will of 75 were once well as I see no colour to the contrary then I am sure all their Objections from the Duke 's contrary Intentions are all answered that he never intended to give him his Estate for if they admit that the Will was once the true Will of the Duke of Albemarle then there was once an apparent Intention in the Duke of Albemarle to give the Earl of Bath the Bulk of his Estate if he died without Issue Now as to the Variations in the Limitations of the Deed from those in the Will I think truly it stands indifferent as to one side or other For here was the distance of six Years between them and the Duke might alter his Mind it might be one way one time and another time another he might alter his Mind as to his Daughters he might after so many Years despair of Issue and so not mind the making any Provision for them He might change his Mind as to his other Kindred and

to that other Besides it doth not appear as I remember for it is some time since this Cause was heard that my Lord of Bath did know to what purpose the Duke did call for his Will and that the Deed and Will were both in the custody of the Duke for though at the time of the execution of the Deed it was delivered to my Lord of Bath yet that was only for the due execution as a Deed for my Lord in his Answer saith He knoweth not where it was afterwards till delivered to him by the Duke with the Will under one Cover some short time before he went abroad And so there is great Reason to induce the Belief that it was in the Duke 's own custody Then as to the Objection of Secrecy it is kept secret all-along and no body can give any account of this Deed. Take it for granted it was so Shall a Settlement in a Family where the nature of the thing requires Secrecy because it is kept secret be set aside in Equity It ought to be kept secret and that is no Objection at all Persons do not usually intend that all the World should know how their Estates are setled But say you At least here is a general Presumption take all together upon the Circumstances of the whole Case that there was some kind of management in concealing of this Deed. Now in a Court of Equity shall Presumption be sufficient to found a Decree upon If that shall avail in a Court of Equity it is an easie matter according to the Judges Faith to presume a Man out of his Estate There are Presumptions of several sorts some are violent and some probable A violent Presumption That such a Man hath done such a Fact must be when a Fact is done and no other can be thought of to have done it As if a Man be killed in a Room and another Man comes out of the Room with a Sword bloody in his Hand and no body else was in the Room Here is a plain Fact done and tho no body can swear they saw this Man do the Fact that he killed him yet from this Evidence there is a very strong Proof But a probable Presumption alone is no Proof to rely upon where indeed there is some Proof of Witnesses positive and the Presumption is probable that is added thereto it may be a good fortifying Evidence but it signifies very little of itself for a Foundation So that I think here is no Proof or Evidence That my Lord of Bath did surprize the Duke or that the Duke was surprized in this matter or that there was any indirect means used to conceal it from the Duke And so I have done with the Second Head that I at first proposed Therefore Thirdly I come to consider the Persons that are concerned in this Cause that is those that Claim by the Deed of 81. and those that Claim by the Will of 87. Those that Claim by the Deed of 81. are Relations of Duke Christopher without all question My Lord of Bath that is entituled to the greatest part of this Estate is a very near Relation and a Person that had done many Kindnesses for the Family had been constantly assistant to the Duke in his business And the others are near Relations too Then for those that Claim by the Will of 87. Mr. Monk that claims the main of the Estate is indeed in the Will called Cousin but it is plain if at all he is not so nearly related So that when in respect of the Persons that claim by contrary voluntary Settlements there is even an equality of Relation and no difference of Consideration much more when there is an inequality he that hath the best Title at Law must carry the Estate For what is it that makes the Difference but the difference of the Consideration As in the Case of a Deed in consideration of Blood and an After-deed to a Purchaser for a valuable Consideration the Last shall take place as the Best Consideration But for revoking or voluntary Settlement in favour of a subsequent one where there is no difference between the Parties as to the Consideration I think hath no ground in Reason There is as much Equity for the one as the other It is perfectly at large and I take it to be a constant Rule that where one Party hath more Equity than the other the Law must take place and that in this Case being manifestly for my Lord of Bath by this Verdict Equity ought not to take it from him This Principal was the Foundation of the Decree in that Case of Smith and Ashton that has been likewise mentioned and urged before There was a Power under Hand and Seal to be attested by three Witnesses and to charge with Portions for younger Children so it is a limited Power Then he makes a Revocation for Advantage of younger Children but not exactly pursuant to the Circumstances of the Power This was held good in Equity and all the reason in the world it should because a Man is obliged to provide for his younger Children and it is against all Justice and Reason to make such a Settlement upon the Eldest Son as to send all the other Children a begging being under the same natural Obligation to provide for the one as the other Therefore because of that Natural Obligation Equity hath been indulgent to support such Provisions because the first Settlement that disabled him from it was wrongful and injurious and contrary to all Equity and then in such Case Equity is very indulgent But I would put this Case A Man settles all his Estate upon his Younger Son for Life with a Power to revoke by Deed sealed in the presence of three Witnesses without more ado he makes his Will and disposeth of his Estate to his Eldest Son wholly and that Will is attested as put it before the Statute by two Witnesses Is this a good Revocation in Equity I say no For the one is as nearly Related to the Father as the other the Considerations are equal the one is as much a Son as the other and therefore there is no great difference between them and the Younger Son who hath the Estate by Law shall enjoy it tho afterwards it return back to him that was the Eldest The Fourth and Last Point is this Whether in respect of Duke Christopher and those Circumstances that attended him there be any Reason to relieve against this Deed in Equity And here First It is said If a Man makes a Feofment with a Power of Revocation under such Circumstances and doth make a Revocation where all the Circumstances are not observed he is such an Owner still of the Estate as that Equity shall support the disposition I say no For that is to set up Equity in direct Opposition to the Law For when a Man hath restrained himself by a particular Power and hath no Legal Right to dispose of this Estate but by exactly pursuing

Power of Revocation and he who had the Power is attainted of Treason Now all Conditions forfeited to the Crown must be performed or no Advantage can be taken This Power was in this Case agreed to be forfeited to the Crown the great Difficulty was Whether the King could perform the Condition or whether the Performance was not tied strictly to the Person that had the Power vested in him That was the great Doubt in that Case but there was no question but it was a Condition and the King should have it as a Condition forfeited And it is likewise agreed in Co. Lit. 237. That it is a Condition and would have been repugnant to be a general Power So that it is not as they say a Guard only upon a Man's Self to prevent Surprize but a Condition And as a Man must perform a Condition at Common-Law to entitle him to Re-enter so he must execute his Power to intitle him to a Revocation And a Court of Equity can no more let a Man in to defeat an Estate upon a Power of Revocation without a due execution of the Power than the Common-Law could let a Man in to defeat an Estate upon a Condition without performance of the Condition or than a Court of Equity can think to let a Man in to defeat a voluntary Conveyance without a Power of Revocation for it is all but a Condition which must be performed or no Advantage taken of it and a Court of Equity may do great things but they cannot alter things or make them to operate contrary to their essential Natures and Properties I confess where there is an Impediment of executing a Power of Revocation or disability of doing it a Court of Equity may perhaps interpose And therefore suppose the Earl of Bath had always had this Deed in his Custody from the time of executing of it and the Duke having a Mind to revoke it had sent to the Earl for it that though seeing the Circumstances required he might truly pursue them but the Earl had refused to deliver it and the Duke not knowing what the Power was had done such an Act with a mind to revoke I agree it is reasonable that a Court of Equity should interpose to support it But why is that because the Earl who was to have the benefit by this Deed was the Impediment why it was not strictly pursued And that is a Reason which would prevail at Common-Law I will put you a Case to prove it Dyer 354. A makes a Feoffment to B with a Power of Revocation if A at any time during his Life pay or cause to be tendred to B at the Font-Stone in the Cathedral at Sarum 20 l. A tenders the 20 l. at the Place in the absence of B and without any notice to him to attend this is held to be no Revocation But saith the Book as it should seem if he had sent to B to be there or some for him to receive the Money at the tender and B would neither have come nor sent it had been a good Revocation So that where there is an Impediment by the Default of the Party who is to have Advantage by the non-performance of the Power and he that hath the Power do an Act that expresseth his meaning to revoke that shall be a good Revocation at Law and in Equity I agree likewise that in case of Disability a Court of Equity may interpose And I agree therefore that in case the Duke of Albemarle had taken this Deed over with him to Jamaica and there had had an Intention to revoke it and had gone as far as he could to do it had made his Will and had six Witnesses to it I believe it would be a good Revocation in Equity though none of the Witnesses were Peers because of the disability he would be under to have any such Witnesses And so that defective Executions of Powers of Revocations may be helped in Courts of Equity in the Cases of Purchasers and Creditors I take it to be true too And it is said other particular Cases there may be wherein a Court of Equity can relieve though the Revocation be not according to the Power reserved And as to that I confess several Precedents have been cited and I wonder considering the Nature of them that more have not been mentioned but I think there are not above four or five very much to the purpose and those I shall take notice of and trouble you with no more The first is the Case of Thorn and Newman and that Case is no more in short than this A Covenants with B to stand seized to Uses with a Power of Revocation upon the tender of 12 d. in the Temple-Hall A tenders the 12 d. to B who accepts it but not in the Temple-Hall The Question was Whether this was a good Revocation in Equity Truly I believe it was a good Revocation in Law For suppose a Man makes a Lease reserving a Rent payable at Michaelmass in the Middle Temple-Hall and there is a proviso of Reentry upon nonpayment according to the Reservation The Rent is paid by the Lessee at the Day but not at the Place and the Lessor accepts the Rent and afterwards Reenters for breach of the Condition If he have once accepted the Rent being privy to the Deed that makes it a good performance of the Condition in Law absolutely So is Co. Litt. 212. And so it is in case of a Bond to pay Money at a Day and Place certain the Money is paid before the Day and not at the Place and the Obligee accepts the Money If he after bring an Action upon this Bond the Defendant can plead nothing but payment according to the Condition and in Evidence he may give it in Proof that though it was not paid at the Place and Day yet being received by the Obligee before the Day at another Place this is good Evidence at Law of Payment according to the Condition And that appeared in the Case of Band and Richardson Moor 267. Aderson 198. Cro Eliz. 142. And this Case of Thorne and Newman I take to be a good Performance at Law where indeed the Condition is to be performed to a Stranger that will alter the Case but where it is to one that is privy to the Deed I take it it is a good performance at Law and consequently must be good in Equity Another Case cited was that of Smith and Ashton and that was thus One Richard Ashton conveys his Estate in Uses with a Power reserved in the Conveyance by any Writing under his Hand and Seal to make provision for younger Children Being sick he prepares Instructions under his Hand in order for Counsel to draw it into Form and it is drawn into Form and ingrossed But before it is sealed he dieth and this was held a good performance of this Power in this Court. So here is a Defect in the Execution of a Power help'd in a Court of Equity

As to this Case I would observe first this is not a Case upon a Power of Revocation to devest an Estate nor a Performance of a Condition But further here are Instructions prepared and it went as far towards the Execution of the Power as could be till an Impediment came in the way by the Act of God in the Death of the Party Now I agree where there is an Impediment by the Act of God or Fraud or Default of the Party who claims by the Deed Equity may interpose But that doth no way come up to the Case in Question Then there is the Case of Dey and Thwaites which was lately in this Court Thwaites makes a Settlement to the use of himself for Life and afterwards to such Child and Children and for such Estate and Estates as he should by any Writing under his Hand and Seal testified by two credible Witnesses limit and appoint He afterwards makes a Will and has but two Witnesses to it so that they did not cite the Case right that said there were not two Witnesses but two Witnesses are not enough by the Statute to make it a good Will and thereby he giveth a Rent of 100 l. a Year to such a Child and dies Now one great Question was Whether the Power being to limit Estate or Estates he might limit a Rent out of those Lands It was held in Equity he might and truly I think that he might at Law There is I confess an Opinion against it in the Case of Brown and Taylor where there were three Judges against one But really I think it is good at Law A second Question was Whether this being void as a Will by the Statute should be yet a good Declaration of the Trust and an Execution of the Power And I think the Court of Equity did very well in decreeing it to be Good For tho it were not effectual in all Points as it was intended as a Will yet it was a Writing which had all the Circumstances required by the Power and therefore I see no reason to question whether it were Good The next Case is the Case of Ward and Booth and that stands thus Sir Thomas Brereton made a Settlement with a Power of Revocation by a Writing under Hand and Seal before two Witnesses and he in a Passion one day tore off the Label with the Seal but afterwards repented Delivered it to the Trustees to be preserved to the Uses And enquiring whether what he had done amounted to a Revocation and being advised it did not he was very well satisfied This Cause came to be heard before my Lord Nottingham and adjudged no Revocation it appearing there was a continued Intention not to revoke But I desire to read part of the Ground that Decrce went upon for that justifies what I said in case where there is a Disability or an Impediment by Fraud this Court may relieve though there be a formal Revocation There is but one Precedent more that I shall mention and that I take to be directly for the Earl of Bath It is the Case of Arundell and Philpott Mary Philpott being a Widow seized of Lands made a Settlement upon the Defendant with a Power of Revocation upon the tender of a Guiney She afterwards makes another Settlement upon the Plaintiff but without any proof of the tender of the Guiney Upon a Bill suggesting her Intention to revoke the Plaintiff could not prevail in this Court to set aside the first Settlement but was dismist to Law and ordered to try the Title within a Twelve-month whether Revoked or not Revoked And there were afterwards a Trial and the Tender of the Guiney did happen to be proved and so the Power was well executed at Law But this Court would not interpose to set it aside as a Revocation in Equity upon the Intention only without a proof of the due Execution And upon the whole Matter I conclude that in a Court of Equity there cannot be a Revocation of a Deed to which a Power to revoke is annex'd but what is pursuant to that Power unless there be either an Impediment from the Party that claims by the Deed or a real disability to execute according to the Circumstances And I think neither of these are in this Case nor are any of those Matters alledged of Surprize Circumvention Concealment or the like any good grounds to set aside this Deed if they were proved which I think there is no pretence of Lord Chief Justice TREBY I Am of the same Opinion with my Brother Powell I shall state the Case as it stands upon this Deed and Will The Will was made in 1675 the Deed in 1681 and shall take notice as I find there was much use made of it on one side of what the Expressions are in the Will and somewhat of what Deficiencies there were of Expression in this Deed. In 1675 the Duke of Albemarle made his Will and by that Will he declares That in respect of my Lord of Bath's being one of his nearest Kindred and out of Gratitude due to him for many Acts of Friendship and good Offices done to him and his Family his Will was that he should inherit all the Parts of his Real Estate not therein otherwise disposed of and therein he desires the King to grant to the Earl of Bath and the Issue Male of his Body the Title of Duke of Albemarle and that his eldest Son might bear the Title of Lord Monk And this was intended in Trust to pay all his Debts and certain Legacies in the Will He therein gives a Legacy of 1000 l. to Henry Monk not the Father of the Plaintiffs the Monks who it doth not appear was any ways related to him Six Years after in 1681 this Duke Christopher makes a Deed and in that Deed recites this Will true as to the Date but mistakes it in several Particulars This Deed settles the main part of the Estate after the Duke and Dutchess their death without Issue by the Duke upon my Lord of Bath part of it immemiately after his own death without Issue other parts upon Sir Walter Clarges and Mr. Greenville And it has been observed that almost all the Limitations of the Estates in the Deed differ from those in the Will at least in express Terms if not in very Substance This Deed also sets forth the Grounds why the Duke made it and it is to this Effect He doth declare he was so unfortunate that his next Heir at Law was descended from a Regicide and therefore I would observe it was not only to confirm the Will as they would have it but for preventing so dishonourable a Descent of the Estate which he owed to the Bounty of the Crown and for conveying and settling and assuring the Lands to the Uses thereinafter declared and confirming and corroborating that Will which he did not intend to revoke and to prevent any Claim either by the Heir or any pretended surreptitious Will which

this Deed was in my Lord of Bath's hands they say Aleman proves it who says it was delivered into the Earl's hands This was look'd upon as so material a Point in this Case that the Deposition was called for to be reviewed and upon reading it again it was plain it must be understood of the delivery of the Deed only to execute it and make it a good Deed not a delivery into his Custody Nay there is farther strong Evidence that it was in my Lord Duke's hands and not in my Lord of Bath's for Sir Thomas Stringer doth a little before the Duke went beyond Sea make an Abstract of it and delivers it to his Man to make a Copy of And when after the Duke's Death both Deed and Will were produced under one Cover but it is plain the Will was delivered to the Duke this answers it and agreeth to what my Lord of Bath saith in his Answer that they were both delivered to him by the Duke a little before his going to Jamaica under that Cover and sealed with the Duke 's own Seal and so they are found And truly if it were but doubtful whether it were in the one hand or the other we must not determine that it was in my Lord of Bath's hands or convict him or any Man of Fraud where the Evidence is doubtful it ought to be proved and plainly proved for Fraud is a thing odious and never to be intended or presumed But the truth was this Deed was concealed not from the Duke but from the Dutchess that she or her Counsel should not get at it to procure a Revocation As for the Case of Charles Clare that was mentioned it doth not in any sort come up to this Case he had lent Money upon a Statute afterwards Money is lent upon a Mortgage of the Lands liable to that Statute He ingrosseth the Mortgage and never discovereth the Statute the Lands were not worth more than the Mortgage Money and by reason of this Concealment it was adjudged Fraud in him and he should have no benefit of his Statute against the Mortgagee Here was a knowledg proved in the Case which is not in my Lord of Bath's that the Duke would revoke and yet I must needs say and I appeal to those Gentlemen that usually attend at this Bar whether they did not think it a hard Case And as to the Case of Raw and Pott besides that it was a Case between a Younger and an Elder Brother and so might have a better Ground or Handle for Equity yet I think it was justly decreed because the Party knew it and concealed it on purpose and encouraged the thing for when he was asked why he did not discover it then he answered If he had then there would have been a Fine levied and a Recovery suffered and then he knew all would have been well enough but there is no such matter as knowledg or the like here The next Head of Objections is that of a Revocation in Equity and for that the first thing insisted upon is this They would have the Deed of 81 to be depending upon the Will of 75 it was ancillary it leaned upon it and therefore this Will of 87 revoking the Will of 75 revokes likewise the Deed of 81 And for this they did cite two Cases out of Dyer The first is fol. 49. 6. A Man makes a Feoffment to perform his last Will and the Will is annext to the Charter of Feoffment and Livery of Seisin is made accordingly it was adjudged that he might alter and revoke that Will though it took effect by the Livery For that doth not alter the Nature of a Will which is always revocable by the last Will But doth that revoke the Deed too No certainly the Deed stood good and there is nothing to the contrary appears in that Book The other Case is Dyer 314. 6. A Man by Deed indented declares That whereas he had suffered a Common Recovery to the intent to perform his Will touching the Disposition of his Lands he Wills so and so and whether he could during his Life alter the Uses in this Indenture was the Question and it is held he might For this Indenture is quasi a Will which is changeable I will go further than that I say it was a Will or it was nothing for though it were in form of an Indenture between several Parties yet when he says he Wills so and so after he had recited a Power to declare by Will this must be taken for a Will or it is no execution of the Power for when a Man suffers a Recovery or makes a Conveyance to me of his last Will he hath two Interests in it he may dispose of it as Owner or by way of Direction If he will dispose of it by way of Direction as this was he must follow the Method prescribed and that must be by Will and so this must be a Will or no execution of his Power But what is that to this purpose that a Will which a Deed is made to Confirm being revoked that shall revoke the Deed too sure that is no consequence nor hath any Ground upon this Case But then say they here is a Revocation and that a Revocation in Equity for though it be a good Deed in Law yet there is such a contrary disposition by this Will as must revoke it being revocable according to the Power Indeed here is not the Number of Witnesses required nor the Quality nor a tender of the Money and Powers of Revocation for it is natural Equity that he who is Owner of an Estate should dispose of it as he pleaseth But there is another Rule of Law that is as certain as any other that all Circumstances must be observed or the Power not well executed and that is Scroop's Case and other Cases that have been mentioned And tho' the Law will go as far as it can to expound the Circumstances as a Performance yet a Performance is necessary The Foundation for this Revocation in Equity which the Plaintiffs go upon is this Where there is a deliberate Intent to make a new Settlement of the Estate and a Man goeth as far as he can to make it there Equity shall supply any Defect First I must deny that in this Case the Duke of Albemarle hath done all that he could do for he thought six Witnesses necessary to the Will of 1675 and six Witnesses to the Deed of 1681 and so provides in this Power for Revocation besides other Circumstances and here are only three Witnesses to this last Will. Neither is this a proper Settlement of a Family for it doth not appear that Mr. Monk who is mainly taken care of in this last Will was any kin to the Family at all Nay it should seem the Duke was not spontaneous about it for he would have the Dutchess pay the Counsels Fee as for her Business When he came to execute it it was not a place that he

of Bath There have been several things insisted upon by the Councel for the Dutchess and Mr. Monk as grounds whereon they would found that Equity which should impeach this Deed of 81. I would mention them as I apprehend they were offered and I will as far as I can avoid being tedious or use unnecessary Repetitions of what has been already said First It has been offered That this Deed was obtained by Fraud and Surprize Secondly If it were Originally fairly obtained yet it was unduely secreted and concealed from the Duke that lie could not come to know the true contents of his Power or if it were not concealed yet it was utterly forgotten by the Duke which was the reason and occasion why sufficient care was not taken to execute the Power as it should have been Next That tho' the power of Revocation was not literally executed yet his intention appearing clearly to dispose of the Estate otherwise it ought to be supported in Equity Then That the Deed of 81. was but Ancillary that was the Phrase to the Will of 75. being agreed to be revok'd by the Will of 87. the Deed must fall with it Another thing was That what the Duke had done amounted to a Revocation Then That here was a General Trust and the Duke remained Owner of the Estate and might charge it as high as he pleased to the utmost value and so being absolute Master of the Estate his subsequent disposition of it by this last Will ought to be made good in Equity There are many things accumulated together and so make the better shew but it is belt to consider them severally if we would know the true weight of them It is true it is charged in the Bill That this Deed was obtained by Fraud and Surprize and that it was concealed from the Duke or forgotten by him and he had an intention to revoke and went as far as he could so that they are sufficiently let into this Matter by what is charged in the Bill But whosoever reads over the Depositions will see that the End they aimed at was to attack the Deeds themselves as false Deeds and not truly executed But that being tryed at Law and the Will and Deeds verified by a Verdict the Counsel have attempted to make use of the same Evidence and read it all or at least the greatest part of it as Evidence of Surprize and Circumvention But I think that ought to be well considered by the Court for we are not to found our Judgment upon that Evidence which if it be to be regarded at all did amount to more than what was insisted upon and which is positively contradicted by the Verdict As to Fraud and Circumvention it must be granted me that they are things not to be presumed It is all denied in the Answer and the Proof must be very clear if it be to be regarded by the Court. Now for this word Surprize it is a word of a general signification so general and so uncertain that it is impossible to fix it A Man is surprized in every rash and indiscreet Action or whatsoever is not done with so much Judgment and Consideration as it ought to be But I suppose the Gentlemen who use that word in this Case mean such Surprize as is attended and accompanied with Fraud and Circumvention Such a Surprize indeed may be a good ground to set aside a Deed so obtained in Equity and hath been so in all times but any other Surprize never was and I hope never will be because it will introduce such a wild Uncertainty in the Decrees and Judgments of the Court as will be of greater consequence than the Relief in any Case will answer for They say This Surprize was made out two ways by Matters that appear in the Deeds themselves and by Circumstances in Proof that arise out of the Deeds As to those Matters that appear in the Deeds themselves they urge First That it is expressed in the Deed of Release that it is made in corroboration of the Will which is misrecited throughout Then That it is imported to be for the confirmation of the Will when in effect it doth fully revoke it because there are no Limitations in the Deed but such as vary from those in the Will Then That it is for securing the Legacies in the Will and yet itself defeats the Will That as to a great part of the Estate the Deed limits it to my Lord of Bath after failure of Issue-male excluding the Daughters whereas in the Will that Limitation is after failure of Issue generally That the Provision in the Deed for the Third Son is ineffectual because the Duke had not power to settle it so That the Power of Revocation is unreasonably fettered and the Covenant whereby the Duke who was then very young is obliged not to revoke the Will is a derogatory and illegal Covenant And the unskilful Phrase and Language of the whole Conveyance must be a Demonstration that Sir William Jones was not imployed in it as is pretended These are the Objections to the Deed it self Now as to the Misrecitals as my Lord Ch. Justice has said they will have no insluence upon the Limitations because the Recitals in a Deed are not made the measure of the Limitations in it Besides as I apprehend here are none of these Misrecitals which are of that nature as to draw on the Duke into a Mistake in the favour of my Lord of Bath For the Recital that the Dutchess had a much greater Estate by the Will than she had before as the Limitation of Dalby and Broughton for Life when it was but during Widowhood this might lead the Duke indeed into a Mistake in favour of the Dutchess as it did and might have induced greater Limitations of the same kind but never to the Advantage of my Lord of Bath who was to come in remainder so that all the inference that can be made from those Misrecitals is only That Sir Tho. Stringer who it is apparent in Proof drew the Deed was a careless Man Then they say the Variation of the Limitations from those in the Will sheweth That it was to revoke the Will and not to confirm it As to that First Such Variation is a Proof That the Duke between the Time of the Will and the Time of the Deed had altered his Mind as to those particulars but to carry it further I see no reason in the World Next it hath been observed That the Words of the Deed which purport the end of it to be for confirming of the Will must plainly in reason infer to the principal design of the Settlement which was to dispose of his Estate to my Lord of Bath and the nearest of his Relations and not to refer to every particular Limitation in the Will and that it doth so confirm the Will as to the main principal Limitation in the Will is plain And it doth appear by the very phraseing of the

of any previous Direction for drawing of this Deed there is no Proof of the Draught or Deed 's being read to the Duke no Counterpart was executed The Trustees were not acquainted with it there was an Estate limited to Sir Thomas Clarges when there were great differences between the Duke and him it is not subscribed by the Duke's Counsel as all Deeds executed by him used to be that it was ingrossed according to the Draught and that in a very material place for if it had been according to the Draught the Duke had been Master of the Estate by a general Trust and if it were not perused by Sir William Jones or he was not a Witness to it then so far as Sir William Jones was surprized in the matter the Duke was so too Now as to the want of Proof of any previous Directions for this Deed that is not strange after such a length of time Sir Thomas Stringer who drew it dead four of the Witnesses to the Execution of it are dead too But the presumption is very strong when the Draught is of Sir Thomas Stringer's Son's Hand-writing and corrected and interlined by his own hand in several places that he had Orders and Directions from the Duke to prepare such a Deed. The Reading or not Reading the Deed to the Duke doth not appear it might be read to him before and it was not necessary it should be read to him at the time of the Executing if it were then the Will of 87 lies open to the same Objection for that was not read to the Duke when he sealed it As to that Objection that there was no Counterpart nor the Trustees acquainted with it that can be nothing of an Objection for the Deed remained in the Duke's hands till a little time before his going to Jamaica as appears by my Lord of Bath's Answer which hath not been falsified as I know of in any point nor was there any Occasion to give Notice to the Trustees becau●e th●re was no manner of Estate or Trust lodged in them But my Lord of Bath was the only Person that had any Trust in him by the Deed therefore there was no Reason that it should be known to any one but him And the Nature of the thing and all the Proofs shew that it was intended to be concealed Then as to the Story of Sir Tho. Clarges and the Differences between the Duke and him there is no Proof of it It is at most but an Hear-say testified by one Witness That it was not Subscribed by the Duke's Counsel as all his Deeds usually were it seems to me to be of no very great Weight when the Draught appears under Sir Thomas Stringer's Son's Hand interlined and corrected by himself and Sir William Jones a Witness to the Execution and present when it was compleated Sure that can never signifie any thing As to the other Observation that was made that the Deed was not Ingrost according to the Draught and the Variation is in so Material a part as to make the Duke Master or not Master of the Estate it should be considered First That upon view of the Draught it is plain Words have been cut off and there is a positive Witness who swears That he twice Ingrost the Deed by the Draught It is possible that a Man may twice leave out the same Words in Ingrossing a Deed by a Draught But that he should twice add the same Words that were not in the Draught is very strange and not easily to be believed Then say they This is not the Draught that was first perased and approved of by Sir William Jones That is certainly such an Objection as never was made before and indeed it is likely there never was Occasion to make such an Objection till the last Hearing for it may be it was not cut till then But pray let it be considered for whose Interest it was to have this Draught cut or altered from the Ingrossment It is impossible it should be cut off for the Interest of my Lord of Bath by the Objection that ariseth from it for let any Words in Nature have been there they could not have been of such Disadvantage as they would have it to be However be the alteration of the Draught what it will if it were not done by the Defendants nor was for their Interest to be done nor done before the Execution of the Deed it all signifieth nothing But I think it is fit and proper here to say something to that Notion that where the Counsel is surprized that is a surprize upon the Client I take that to be a matter of a very great Consequence and I fear it would shake most of the Settlements of Estates in England and for that I would mention the Case of Sir James Herbert and the late Lord of Pembroke There was a Bill brought in this Court to set aside the Will of the Elder Brother who was the late Earl of Pembroke but two Sir James was Heir at Law and the other was but half Brother That Earl had taken a Displeasure at his Brother and sent Directions to Mr. Swanton to draw a Will and Settlement of his Estate and amongst other things orders to be sure that the Brother should have no power over the Estate to dispose of it because that in his Grandfather's Will there was such a Settlement as he liked of he sends him that Swanton makes a Will and limits an Estate to Sir Philip Herbert the Brother for life and the remainder to the Heirs of his Body This Will is brought by the Counsel to the Earl and read and Executed and held to be Good yet this was a Notorious Surprize upon the Counsel for nothing is plainer than that the Counsel had made a Mistake or knew not the Law He did not at best consider that upon such a Limitation the Law uses the whole Estate Tale in him and he may dispose of it It is plain he had not pursued the Will of the Grandfather but yet when this Cause came to be heard before my Lord North when the Will appeared to have been truly executed the Court declared it was a Misfortune that they did not go to a better Counsel And it was sent to Law to try whether it was the Will of the Earl of Pembroke or no and it being found to be the Earl's Will the Bill was dismist with Costs Thus I have taken Notice of what has been offered to prove the Surprize I would shortly mention on the other side what hath been insisted upon to shew that there was nothing like Surprize but all was done upon a very good ground and pursuant to a setled full purpose continued for so long a tract of time to the Duke's death First Say they It doth appear there were a very near Relation between my Lord Duke and my Lord of Bath and that Duke George owned and owed his first setting out in the world to the Ancestors