good for them and that they had the like Power of Appeals Writs of Error and Impeachments c. and that the Cognizance of such Appeals in England would produce great inconveniencies by making poor people to attend here whereas they might with less trouble and expence have Justice at home that this did agree with the reasons of that Ancient Statute 4 Inst 356. that persons having Estates in Ireland should Reside in that Kingdom else half of their Estates should go to maintain the Forts there That this practice of receiving Appeals here would be vexatious to the people of that place and that no Court could have Jurisdiction but by grant or prescription and that there could be no pretence for either in this place Then was it ordered in these or the like Words Whereas a Petition and Appeal was offered to the House the Day of last from the Society of the Governour and Assistants London of the New Plantation in Ulster in the Kingdom of Ireland against a Judgment given by the Lords Spiritual and Temporal of Ireland in Parliament there Assembled on the day of last upon the Petition and Appeal of William Lord Bishop of Derry against the Decree or Orders made in the said Cause in the Court of Chancery there Whereupon a Committee was appointed to consider of the proper method of Appealing from Decrees made in the Court of Chancery in Ireland and that pursuant to the Orders of the said Committee and a Letter sent to the Lords Justices of Ireland by Order of this House several precedents have been transmitted to this House by the said Lord Justices Copies whereof were ordered to be delivered to either side After hearing Counsel upon the Petition of the said Society of London presented to this House praying that they might be heard as to the Jurisdiction of the House of Lords in Ireland in receiving and judging Appeals from the Chancery there as also Counsel for the Bishop of Derry after due Consideration of the Precedents and of what was offered by Counsel thereupon It is ordered and adjudged by the Lords Spiritual and Temporal in Parliament Assembled That the said Appeal of the Bishop of Derry to the House of Lords in Ireland from the Decree or Orders of the Court of Chancery there made in the Cause wherein the said Bishop of Derry was Plaintiff and the said Society of the Governour and Assistants London of the New Plantation in Ulster in Ireland were Defendants was coram non judice and that all the proceedings thereupon are null and void and that the Court of Chancery in Ireland ought to proceed in the said Cause as if no such Appeal had been made to the House of Lords there and if either of the said Parties do find themselves Agrieved by the said Decree or Orders of the Chancery of Ireland they are at liberty to pursue their proper Remedy by way of Appeal to this House Sir Caesar Wood alias Cranmer versus Duke of Southampton APpeal from a Decree in Chancery the Case was thus Sir Henry Wood the Appellant's Unkle makes a Settlement in Consideration of a Marriage to be had between his Daughter Mary and the Duke c. to the uses following i.e. in Trust to Receive and Pay out of the Profits 450 l. a Year to the Lady Chester for the Education and Maintenance of his Daughter till twelve years of Age then 550 l. a year till Marriage or Seventeen years of Age which should first happen and in Trust to pay the Residue of the Profits to the Duke after Marriage he first giving Security to the said Trustees to provide Portions and Maintenance for the Daughters of the Marriage equal to the Sum he should receive and in case there should be none then the same Money to remain to the Respondent and if the said Mary should die before Marriage or Age of Seventeen years to such Uses as Sir H. W. should appoint And if Mary after Sir Henry's death die under Sixteen the Respondent then unmarried to any other Woman or after and before Seventeen the Respondent then living and unmarried or if before Seventeen she should marry any other or if she should refuse the Respondent then 20000 l. out of the Profits to the Duke But if the said Marriage shall take effect after Mary's Age of Sixteen years and she shall have Issue Male by the Respondent then for the better Settlement of the Premisses upon the Issue Male and a more ample Provision and Maintenance for the Respondent and his Wife and the longest Liver of them in Trust for the said Duke and Mary for and during their Lives and the Life of the longer liver of them and after their Deaths to the first Son c. in Tail Male and for default of Issue Male to the Daughters And for default of such Issue in Trust for such Persons only as Sir Henry should appoint and in default thereof to the right Heirs of Sir Henry Sir Henry W. at the same time makes his Will tho' dated after the Settlement reciting that he had settled the Premisses upon the Duke and Mary for their Lives and the Life of the Longer liver of them c. and confirms it and in Case the said Martiage should not take effect according to the Limitations of the Settlement or if the said Respondent should die without Issue by Mary or if he have Issue by her and that Issue die without Issue then the Remainder to Mary for Life and afterwards to her first Son and after several mediate Remainders then to the Appellant for Life c. and after to Thomas Webb c. Sir Henry Wood dies the Marriage between Mary and the Duke afterwards takes effect upon her arrival to years of Consent and they lived in that state till she was near Seventeen years of Age and then she dies without Issue The Court of Chancery decreed the Profits of the Estate to the Duke for Life It was argued for the Appellant That here was a precedent Copulative Condition that if the Marriage take effect after Sixteen and there be Issue then to the Duke and neither of these being in the Case the Decree is not consistent with the positive words of the Settlement for that the Duke was to have it upon no other terms That by this Settlement the Duke was thus provided for 1. If the Marriage did not take effect by Mary's refusal or taking another Husband the Duke was to have 20000 l. 2. If the Marriage did take effect and Issue was had then the Duke was to have an Estate for Life but not otherwise that the words are plain and certain that there must not only be a Marriage but Issue Male between them that tho' it should be agreed to be a good Marriage within the intention of the Settlement she living till after Sixteen years of Age yet when a Condition Copulative consisting of several Branches as this doth is made precedent to any Use or
of making a new Presentation And in all pleadings of this sort the notice is generally alledged to be the same day or within a day or two at the most That certainly it ought to be with convenient notice But then it was urged That the six Months ought not to be from the Death of the last Incumbent if there be a person Criminal presented which the Patron doth or may know as well as the Bishop there the six Months must be from the Death but if it be upon a refusal for a Cause which lies only in the Bishop's knowledge then it must be only from the notice and that notice ought to be personal but if the Months incur from the Death the notice should be in conveient time and what that is the Court must Judge Then it was urged from Speccot's Case That this Plea is too general and uncertain that a Temporal right being concerned the Bishop ought to have set forth more particularly and distinctly the cause of his Refusal 8 Rep. 68. the certain cause of a Divorse must be shewn 11 Hen. 7. 27. 2 Leon. 169. The Ordinary is a Judge only of the matter of Fact if true not if this matter pretended be a cause of Refusal he ought to alledge that so particularly as to manifest it to the Court in which the Suit depends That 't is a legal cause of Refusal He is not a Judge whether Hodder's insufficiency in any one point of Learning be a good cause of Refusal for if it should be so the Temporal Right of Patronage would be very precarious The Court ought to have enough before them whereon to Judge of the Cause as well as that on Issue may be joyned and tried here 't is only said that he is less sufficient not that he is altogether illiterate this will put it in the Power of the Ordinary to refuse for want of knowledge in any Learning as he thinks fit as Mathematicks or Anatomy without which a Man may be well Qualified to be the Rector of a Benefice and the consequence of such Opinion will be much to the prejudice of Lay Patrons that certainty in Pleading ought to be encouraged for the prevention of the exercise of Arbitrary discretionary Power that the Wisdom of the Common-Law is to reduce things to single Questions that the Determination upon them may be plain and certain and known and the reasons of such Determinations may appear which cannot well be done if general Allegations or Pleadings be countenanced for which and other Reasons urged by the Counsel who argued with the Judgment 't was prayed that the Judgment might be affirmed It was replied on behalf of the Plaintiff in the Writ of Error that the Books were very plain that the six Months were to incur from the Death of the Incumbent and then if there were not notice in convenient and due time in order to enable the Patron to present again that this ought to come on the other side That to require Learning in Presentees to Benefices would promote the Honour of the Church nay of the Nation in general That every Man who knew this Presentee and his Ignorance even as to the Latin Tongue must acknowledge that the Reverend Prelate who refused him had done worthily and becoming the Character of his Order Family and Person and therefore 't was prayed that the Judgment should be Reversed and it was Reversed Robert Davis versus Dr. John Speed WRIT of Error on a Judgment in Ejectment in the King 's Bench for certain Lands in Hamp-Shire the Declaration was upon the Demise of Francis Cockey The Verdict finds that William Horne and Ann his Wise were seized of the Lands in Question in their Demesne as of Fee in Right of the Wife that they made and executed a Deed Covenanting to Levy a Fine thereof to the use of the Heirs of the said William Horne lawfully begotten and to be begotten on the Body of the said Ann his Wife and for default of such Issue then to the use of the right Heirs of the said William Horne for ever and a Fine was Levied accordingly to these uses that William and Ann were seized prout Lex postulat that they had Issue William Horne their Son who Died without Issue in the Life of William and Ann that she Died and William the Father and Husband Survived her that then he Died without Issue that the lessor of the Plaintiff is Sister and Heir of the said William Horne that after his Death she entred and was seized prout Lex postulat that Elizabeth Joanna and others were Co-heirs of the said Ann that their Estate and Interest came by mean conveyances to the Defendant Speed That he was seized prout Lex postulat that the Lessor of the Plaintiff entered and Ousted the said Speed and made the Demise in the Declaration and that the Plaintiff entered and was Possessed till the Defendant entered upon him and Ousted him And if it shall appear to the Court that the Desenant's entry was lawful they find the Defendant not Guilty and if c. upon this special Verdict Judgment was given in B. R. for the Defendant And now it was Argued on the behalf of the Plaintiff in the Writ of Error that this Judgment was Erroneous and ought to be Reversed for that these Lands belonged to the Heirs of the Husband by force of this Deed and Fine that this was in the Case of an Use which was to be construed as much according to the intent of the Parties as a will That if by any construction that intent could be fulfilled it ought That the intent of the parties here was plain to give this Estate to the Husband and his Heirs that uses are to be governed by Equity and that therefore the meaning of the persons concerned was to be pursued That the Woman intended to take nothing her self nor to reserve any thing but to part with the whole That here was an use by implication in the Husband tho' none could result back to the Husband because he had none before but that in this case as in that of a Will an use might by implication very well be raised to the Husband and then this might be good by way of Remainder after the Death of the Husband or create an Estate Tail in him by coupling the use implied to him for Life with that to the Heirs of his Body and that if it were not so then that it was good as a springing contingent use to the Heirs of the Body of the Husband c. and that in the mean time till that Contingency happened the same was to the use of the Wife and her Heirs And that this Construction contradicted no Rule of Law That it was no more than was allowed in case of a Will by way of Executory Devise according to Pell and Brown's Case in 2 Cro. that the Estate should remain in the Wife and her Heirs during the Life of the Husband
Trust the entire Condition must be performed or else the Use or Trust can never rise or take place And it is not enough that one part only be performed As to the Objection from the intention of the Parties 't was Answered That no such Intention did appear or reasonably could be collected from any thing in this Deed or Will and it would be too great a violence to the words to break that Condition into two which is but one according to the plain and natural Contexture and Sense of it It hath been said That if the Duke cannot take an Estate for Life in the Trust unless he had Issue Male by the Dutchess then she her self could not take for Life by that Trust unless there were Issue Male for that their Estates are limited together and then the Consequence would be That if there were Daughters and no Sons the Daughters would have the Trust of the Estate in their Mother's Life time and their Mother nothing which could not be the intent of Sir Henry Wood. To this it was answered That the same arises from a plain Mistake and a Supposition that the Daughters if any should take tho' there never were a Son whereas the Limitation to the Daughters is under the same precedent Condition as the Limitation to the Duke and Dutchess is For the precedent Copulative Condition ushers in the whole Limitation of the Trust so that the Trust to the Daughters could no more arise without Issue Male born than the Trust to the Duke and Dutchess And whereas 't is pretended That at this rate the Duke and Dutchess were to have had no Subsistence till the Birth of Issue Male which might be many years it was answered That this was a plain mistake of the Law for this Trust being by the Deed and Will thus limited upon this precedent Condition of having Issue Male they whose Estates in this Trust are thus limited upon this Condition can take nothing till the Condition be performed by Marriage and Issue Male and then by the Rules of Law till some of those Persons to whom the Trust was limited could take the Trust of the Estate descends to the Heir at Law and she was intituled to the Profits till the precedent Condition should be performed or become impossible and if the Condition had been performed the Trusts would have taken effect and being not performed but becoming impossible by the Dutchesses death before she had Issue the subsequent Trusts take effect upon her death Besides that it is pursuant to the Rules of the Common Law which gives to the Husband no Estate for Life in the Wives Inheritance unless he have Issue by her born alive wherefore it was prayed that the Decree might be reversed Then it was argued on the behalf of the Respondent That Sir Henry Wood by the same Settlement directs that if the Duke died before his Marriage with her then the Trustees should dispose of the Profits of the Premisses to the Lord George Palmer the Duke's Brother in case the Brother married her and to the said Mary for their Lives and the Life of the longer Liver of them And from and after the decease of the Survivor of them then to their Issue in Tail Male c. without adding any words of a preceding Condition and yet says In like manner and for the like Estates as he had appointed for his said Daughter and the Duke in case of their Marriage which plainly evidences his intention to be That the said Duke and the Lady Mary should have the Profits during their Lives altho' they should never have Issue Male as the Brother would have had in case he had married her Then 't was urged That Sir Henry Wood's appointing the Surplus of the Profits over and above her said Maintenance for the benefit of the Duke until his marriage shows the intent for that it can't be imag ined that he should be provided for before his Marriage and left destitute of all Support after it unless he had Issue Male by her Nay his intention of Kindness to the Duke was proved further by giving him 20000 l. in case she refused to marry him or died before her Marriage And as to the Pretence of its being a Condition precedent it was answered That unless that Paragraph be made to interfere with it self the Duke will be intitled to an Estate for Life if there were no other Clause in the Deed. For first It 's said That for a more full and ample provision for the said Duke and his Wife the Trustees c. Which words according to the Construction of the Appellant's Counsel must be useless and void unless the Duke were not after Marriage to have as great if not greater Supply then he had before the Marriage Then 't is said That they should be seized in Trust for the Duke and his Wife and the Survivor of them for and during their natural Lives and the Life of the longer Liver of them And from thence 't was argued That the meaning and import of the words far and during can be nothing less than the whole Duration and Continuance of their Lives from and after Sir Henry's Death and their Marriage Then the Will of Sir Henry proves the Intention for that it recites That he had settled from and after his Decease the Premisses in Trust for the Duke and the said Mary during their Lives and the Life of the longer Liver of them and takes no notice of the pretended precedent Condition which shows that he designed them the Profits immediately after his Decease and the Marriage Then in the Limitations over they are not to take any benefit of or by the Premisses until the death of the Duke and his Wife without Issue therefore it must be understood that the Profits in the mean time should remain to the Duke and his Wife or the Survivor of them And then it was further observed That the Duke comes in as a Purchaser upon as valuable a Consideration as any in the Law viz. Marriage and the Limitation over to the Respondent is avoluntary Settlement And as to the Objection of the Marriage being before Sixteen it was not much insisted on the other side and in reason cannot be because her continuing married till after Sixteen doth fully satisfie the intent of the Deed in reference to this Matter And many other Reasons were urged from the Intent of the Parties and the Nature of the Interest the same being a Trust Estate and proper for Equity to construe And upon the whole it was pray'd that the Decree might be affirmed but the same was reversed Sir Caesar Wood alias Cranmer Versus Thomas Webb APpeal from a Decree in Chancery The Case was founded upon the next preceding The Respondent was one of the Coheirs of Sir Henry Wood and claimed a Moiety of the Profits of the Premisses during the Duke's Life and the same was decreed accordingly And now it was argued on the behalf
Denbigh and Montgomery leaving three Daughters and Coheirs Mary Penelope and Susan Susan married Sidney Godolphin one of the present Appellants In July 1674. Mary and Penelope in consideration of 4000 l. paid to the said Mary by Richard Carew Esq and in consideration of a Marriage to be had and which was afterwards had between Penelope and the said Richard Carew by Lease and Release convey all those their two Parts of the said Lands in Denbigh Salop and Montgomery to Trustees and their Heirs to the use of Richard Carew for Life then to Penelope for Life for her Jointure then to the said Trustees and their Heirs during the Lives of Richard and Penelope to preserve contingent Remainders then to the first and other Sons of Richard and Penelope in Tail-Male successively And in default of Issue-Male to the Daughters of Richard and Penelope in Tail And in default of such Issue as to one Moiety of the said two Parts to the first and other Sons of the said Penelope by any other Husband in Tail the Remainder of all and singular the Premisses to the said Richard Carew and his Heirs for ever subject to this Proviso That if it should happen that no Issue of the said Richard upon the Body of the said Penelope should be living at the decease of the Survivor of them and the Heirs of the said Penelope should within Twelve Months after the decease of the Survivor of the said Richard and Penelope dying without Issue as aforesaid pay to the Heirs or Assigns of the said Richard Carew the Sum of 4000 l. that then the Remainder in Fee-simple so limited to the said Richard Carew and his Heirs should cease and that then and from thenceforth the Premisses should remain to the use of the right Heirs of the said Penelope for ever After this Mary intermarried with the Appellant Sir Evan Lloyd and a Partition was made of the Premisses and the same had been enjoyed accordingly ever since and Mr. Carew and his Lady levied a Fine to Mr. Godolphin and his Lady of his part who did thereupon by their Deed dated 23 Sept. 1676. covenant to levy a Fine of Mr. Carew's two Parts to such uses as he and his Lady should limit and appoint but have not yet levied the said Fine Richard Carew and Penelope his Wife to avoid all Controversies that might happen whereby the Estate of the said Richard Carew or his Heirs might be question'd or incumbred by the Heirs of Penelope and to the End to extinguish and destroy and barr all such Estate Right Title Equitable or other Interest as the said Penelope then had or her Issue and Heirs might have or claim to the same by any Power Settlement or Condition on payment of 4000 l. or otherwise to the Heirs of Richard Carew by the Heirs of the said Penelope and for the settling of the same on the said Richard Carew and his Heirs did in Michaelmas Term 1681. levy a Fine of the Share and Part allotted to them and by Deed of 10 Decemb. 1681. declare that the said Fine should be to the use of the said Richard for Life Remainder to Penelope for Life the Remainder to the said Richard Carew his Heirs and Assigns for ever And do further declare That the Fine agreed to be levied by the Appellants Sidney Godolphin and Susan his Wife by their Deed dated the 23 Sept. 1676. should be to the same uses and then direct the Trustees by the first Settlement to convey to those uses Penelope died without Issue in 1690. Richard Carew made his Will in Aug. 1691. and devised the said Lands to Sir John Carew Baronet his Brother subject to pay all his Debts and Legacies and made Sir John Carew his Executor In Decemb. 1691. Richard Carew died without Issue and Sir John Carew entred and was seized and possessed of the Premisses and paid 4855 l. for the Debts of Richard Carew Sir John Carew died and the Respondent Sir Richard Carew an Infant is his Son Heir and Executor The Appellants Mary and Susan claiming the Lands as Heirs to Penelope by virtue of the said Proviso in the first Settlement upon payment of the 4000 l. exhibited their Bill in Chancery to compel the Trustees to convey the Estate to them upon such payment Upon hearing of this Cause on Bill and Answer the Court ordered a State of the Case to be drawn which was as above and afterwards the Court assisted by the Chief Justice of the Common Pleas and Mr. Justice Rooksby seeing no Cause to relieve the Plaintiffs dismissed their Bill And now it was argued on behalf of the Appellants That such Dismission ought to be set aside and amongst other things it was insisted on in favour of the Appeal that this Proviso was not void that it was within the reason of the Contingent Limitations allowed by the late Lord Chancellor Nottingham in the Case of the Duke of Norfolk and there were quoted several Paragraphs in the Argument made by the said Lord Chancellor as that future Interests springing Trusts or Trusts Executory Remainders that are to emerge or arise upon Contingency are quite out of the Rules and Reasons of Perpetuities nay out of the Reason upon which the Policy of the Law is founded in those Cases especially if they be not of remote or long Consideration but such as by a natural and easie Interpretation will speedily wear out and so things come to the right Channel again That tho' there can be no Remainders limited after a Fee-simple yet there may be a Contingent Fee-simple arise out of the first Fee that the ultimum quod sit or the utmost Limitation of a Fee upon a Fee is not yet plainly determined that tho' it be impossible to limit a Remainder of a Fee upon a Fee yet 't is not impossible to limit a Contingent Fee upon a Fee that no Conveyance is ever to be set aside in Chancery where it can be supported by a reasonable Construction especially where 't is a Family Settlement Then these Paragraphs were applied and further urged That there could not in reason be any difference between a Contingency to happen during Life or Lives or within one year afterwards that the true reason of such Opinions which allowed them if happening within the time of the Parties lives or upon their deceases was because no Inconvenience could be apprehended thereby and the same Reason will hold to one year afterwards and the true Rule is to fix Limits and Boundaries to such Limitations when so made as that they prove Inconvenient and not otherwise That this Limitation upon this Contingency happening was the considerate Intention of the Family the Circumstances whereof required Consideration and this Settlement was the Result of it and made by good Advice That the Fine could not barr the Benefit of this Proviso for that the same never was nor ever could be in Penelope who levied the Fine As to the Pretence That if the
be affirmed and it was affirmed Sir Edward Hungerford and John Hill Executors and Devisees of Sir William Basset deceased Plaintiffs versus Edward Nosworthy Defendant WRit of Error to Reverse a Judgment in B. R. upon a Special Verdict in Ejectment by Hitchins the Lessee of Nosworthy against Sir William Basset Defendant for the Mannor of Lanrock and other Lands in Cornwall wherein upon Not Guilty pleaded and a Trial at Bar the Jury find That Sir Henry Killegrew was seized in Fee of the Lands in question and on the 12th of November 1644. made his Will in writing which follows in these words I Henry Killegrew c. and so they set forth the Will whereby Sir Henry Killegrew devised the Premisses to Mrs. Jane Berkley his near Kinswoman for Life with Remainder over to Henry Killegrew alias Hill Sir Henry's Natural Son in Tail and makes Mrs. Berkley sole Executrix They further find that after the making of that Testament and before the time when c. viz. about the Feast of St. Michael in the Year 1645. Condidit fecit aliud Testamentum in scriptis sed quid fuit content ' in eodem ult ' mentionat ' Testamento vel quale fuit purportum sive effectus inde juratoribus praed ' non constat And that Sir Henry on the 29th of September 1646. died seized of the said Lands that Mrs. Jane Barkley Devisee of the said Will in 1644. by Lease and Release conveyed to Mr. Nosworthy's Father and that the Father died in 1684. that Mr. Nosworthy is Son and Heir to him that Sir William Basset is Cosin and Heir to Sir Henry viz. Son and Heir of Elizabeth Basset Daughter and Heir of Sir Joseph Killegrew elder Brother of Sir Henry the Testator that Nosworthy the Lessor of the Plaintiff entred and made the Lease in the Declaration c. But upon the whole Matter whether the Said Testament made in writing 1645. was a Revocation in Law of the said Devise of the said Lands to Mrs. Berkley they are ignorant and pray the Judgment of the Court Et si And upon this Judgment was given for the Plaintiff in the Ejectment And now it was argued That the Judgment was Erroneous that this last Will could not be taken to be a duplicate of the former but must be deemed a Revocation that no Will is good but the last that every Will is revokable till death that the making of another doth import a Revocation of all former ones tho' it be not so expresly declared in writing for it must be the last or nothing that this Conveyance by Will was anciently a Priviledge by the Civil Law for People in Extremis who had not the time or assistance necessary to make a formal Alienation and chiefly intended for Military Men who were always supposed to be under those Circumstances and therefore the Ceremonies and number of Witnesses required of others were dispensed with as to Soldiers but now the Rules for Military Testaments as they are called are allowed in most Cases that as to Lands by our Law was a Priviledge only given to some Boroughs and Places within the Kingdom and particular Custom gave the liberty of disposing Lands or Houses by Will and that by nuncupative Will or Parol without writing so is Bracton lib. 4. fol. 272. Fleta lib. 5. cap. 5. Potest legari catallum tam hereditas quam perquisitum per Barones London Burgenses Oxon 1 Inst 111. that then came the Statute of Hen. 8. and impowers a Devise by a Man's last Will and Testament in writing but still 't is by his last Will. And so is Littleton sect 168. If divers Wills the latter shall stand and the others are void 1 Inst 112. In truth 't is plain Law the first Grant and the last Testament In Swinb 1 part sect 5. p. 14. no Man can die with two Wills but he may with divers Codicils and the latter doth not hinder the former so long as they be not contrary Another difference there is between Wills and Codicils If two Testaments be found and it can't be known which is first or last both are void but the latter countermands the first tho' there be a Clause in the first that it shall not be revoked and tho' an Oath were taken not to revoke because the Law is so that the very making of a latter doth revoke the former So is Liuwood's Provincial ' de Testamentis Justice Dodderidge's Office of Executor published by Wentworth 29. A verbal Will revokes a former written Will Forse and Hembling 4 Rep. 60 61. Plowd 541. Perkins sect 178 179. and sect 478. The 2 Hen. 5.8 is full to this purpose There 's an Action by an Executor against two Executors and they plead a Testament whereby they are made Executors and the Plaintiff replys that he afterwards made another and himself Executor and held that by the second the first became void Now the meaning of these Books cannot be that a Will expresly revoking is the only Will that can make a Revocation nor is it that a Contrariety or Repugnance between the one and the other is necessary to make a Revocation for tho' there be no new Will made yet a Revocation may be by word of Mouth as 2 Cro. 49.115 1 Cro. 51.3 Cro. 781. nay a void Bequest shall revoke a Will so shall a Deed that hath no effect as Feoffment without livery a Devise to J.S. or to a Corporation when there is no such will do it so that 't is not the Contradiction between the disposal which revokes for that which is no disposition at all will do it wherefore the meaning of the Authors cited is somewhat else and it can only be this That there is somewhat particular in a Will to that Instrument of Conveyance more than to any other that even the making of a new Will is a sufficient Revocation the words are plain by the making a new Will the former are all destroyed for there can be but one last And when a Man makes and declares a new Will that new Will must be presumed to contain his whole Mind concerning the disposition of his Estate declaring his Will imports thus much and excludes all other When a Man would alter part of his Will there 's a proper Instrument for it called a Codicil which is known in the Law as well as that of a Will here 's nothing found of a reference to the former to judge it otherwise would confound the use of Wills and Codicils and the difference between them 'T is true that a Man may make partial Wills of several parts of his Estate and all may stand together but then they must be declared to be Wills concerning particular things and they are but several pieces of the same Will tho' written in different Papers but then in pleading one of them you must not generally say he made ult ' voluntatem but ultimam voluntat ' of such a thing but here 't
is aliud testamentum i.e. a general Testament The 2 Rich. 3. fol. 3. is directly thus The Defendant pleads one Will the Plaintiff replies another and exception taken because he did not traverse the former but held needless to do so quia per ult ' testamentum ut placitatur generaliter primum testamentum revocatur in omnibus and it cannot be pretended that this might be the same Will written over again for if so it could not be aliud it would be the same these are not quibbles upon words for can it be said that this is a Devise by the last Will of Sir H. when there 's another Nor is it an Objection that the Contents do not appear for the Will belongs not to the Heir to keep and consequently not to shew in pleading he is not bound to a profert 't is enough that there was a subsequent Will And as the latter may confirm or be consistent with the former so it may not be so and the consistency is not to be presumed especially against an Heir at Law and in possession In the Case of Coward and Marshal 3 Cro. 721. the Substance of both are declared and thereby they appeared to be consistent and consequently no Revocation here Eadem mens sic testandi the same intent of disposing his Estate the same way can never be thought to continue for then there had been no occasion of making another Will If this be not a Revocation 't is an act void and to no purpose which is never to be intended Then 't was insisted on That the bare act of making and publishing another Will is a Revocation and the finding of the Contents unknown is void If this be not a Will 't is a Codicil and that is contrary to the finding of the Jury for the Verdict mentions a second Substantive independent Will without reference to the former which second Will is a Revocation and therefore 't was prayed that the Judgment should be reversed It was argued on the other side in behalf of Mr. Nosworthy That this was no Revocation that here had been a great stir about nothing for that nothing appeared against his Title that a Man may make a Will of several things at several times and they both shall stand that a deliberate Will being made the Contents whereof are known shall never be revoked by that which is not known nothing can be judged upon that which doth not appear and consequently it can never be judged to be a Revocation Here 's another Will and nothing is given by it nothing is found to be given by this subsequent Will The form of entring the ancient Judgments was Quibus visis lectis auditis per Curiam plene intellectis now what is here read to make a Revocation 2 Rich. 3. fol. 3. is with the Judgment for there 't is replied that he made another Executor there are the Contents pleaded sufficient to maintain his Count and answer the Defendant's Bar the Book is per hoc quod alius Executor nominatur Then was cited 1 Cro. 51. the Reason given is quia in dubiis non presumitur pro testamento and here being a good Will at the most the other is doubtful 1 Cro. 114 115. Several Wills of several things may be made And the same Book 595. 10 Car. 1. which Refolution Serjeant Maynard in arguing this Case below said that he heard in that Court of Kings Bench 'T is the Subject Matter of the Wills and the Repugnancy which makes the Revocation In this very Case in the Exchequer upon an English Bill 't was held by Hale to be no Revocation 't is in Hardres 375. Coke upon Littleton which hath been quoted Comments upon these words several Devises and if there be no Devise in the second there can be no sense or meaning in it and consequently unless some meaning appear it can never be an Evidence of a change of his Mind as it might be a Revocation so it might be otherwise and he that will have it to be a Revocation must prove it to be such No Man can affirm that every Will must necessarily be a Revocation of a former for the second Will might be of another thing as Goods or of another parcel of Land or in confirmation of the former If in these and many other like Cases a latter Will is no Revocation of a former how can it possibly with justice be concluded that a latter Will without Contents Purport or Effect shall be a Revocation of a former And tho' the Jury have in this Case believed the Witnesses and found that another Will was made it may be of dangerous Consequence to encourage and construe this a Revocation without knowing the Contents for no Will can be secure against the swearing of a new Will if there be no necessity of shewing it or proving what it was For which and other Reasons it was prayed that the Judgment might be affirmed and it was affirmed Sir Simon Leach al' Plaintiffs Versus J. Thomson Lessee of Charles Leach Defendant WRit of Error to Reverse a Judgment given in B. R. upon a Special Verdict on a Trial at Bar in Ejectment brought by Thomson on the Demise of Charles Leach the Special Verdict finds that Nicholas Leach was seized of the Lands in question in his Demesne as of Fee and being so seized 9 Nov. 19 Car. 2. he makes his last Will and thereby devises the Premisses to the Heirs Males of his Body lawfully to be begotten and for default of such Issue to Simon Leach his Brother for his Life and after his Decease to the first Son of the Body of the said Simon lawfully to be begotten and the Heirs Males of the Body of such first Son lawfully to be begotten and for default of such Issue to the second c. and so on to the eighth Sons of all and every other Sons c. and for default of such Issue to Sir Simon Leach his Kinsman Son and Heir of Simon Leach of Cadley in Com' Devon ' Esq deceased and the Heirs Males of his Body and for default of such Issue to the right Heirs of him the said Nicholas for ever Then they find That the Lands in the Declaration and those in the Will are the same that afterwards viz. 10 Apr. 20 Car. 2. Nicholas died seized without Issue of his Body that after his Death the said Simon his Brother and Heir Entred and was seized in his Demesne ut de libero tenemento for term of his Life Remainder to the first Son of the Body of the said Simon the Brother and the Heirs of the Body of such first Son lawfully to be begotten and for default of such to the second c. Remainder to Sir Simon in Tail Remainder to the said Simon the Brother and his Heirs belonging That Simon Leach the Brother being so seized afterwards viz. 20 Aug. 20 Car. 2. took to Wife Anne the Daughter of Vnton Crook that
in the Negative doth amount to it viz. that he shall continue no longer especially when the Act recites the Mischief to be a Continuance during Life It implies that the Clerkship of the Peace should be never granted for a longer Interest than the Custos had in his Office The 3 and 4 Edw. 6. doth indeed repeal part of the 37 Hen. 8. not by express words but by a very strong Implication by giving the Chancellor a power to nominate the Custos But the Office of Clerk of the Peace is not toucht by that of Edw. 6. and continues as settled by 37 H. 8. which is during the continuance of the Custos Then 't is the new Statute which gives the occasion of the present Dispute and there 's nothing in this Act which can make such an Alteration in the Law as was below contended for The words So long only as he shall well demean himself are not enlarging of his Estate but Restrictive and whensover 't is considered how to make a Grant for Life to be good you must consider the power and capacity of the Grantor and how the thing is capable of being so granted as in Case of Tenant in Tail or Fee and each make a Lease for Life in the latter Case 't is for the Life of the Lessee and in the former for the Life of the Tenant in Tail because of the different Capacities of the Grantors and so the thing it self is considerable here 's an express Statute that saith it shall be only during the continuance of the Custos now that Provision is to be pursued 'T is said that a Grant quam diu se bene gesserit is for Life but the words themselves do not import any such thing 't is indeed a restrictive Condition which the Law imposes upon all Offices for Misbehaviour in any Office if in Fee is a Forfeiture but the chiefest Consideration is if it be an Office that is capable of being granted for life if it be so these words may amount to a Grant for Life as expounded by usage and the nature or capacity of the Office it self but otherwise if the Office be not grantable for Life such words will not give an Estate for Life These words seem only to be an Expression of what the Law always implieth tho' not particularly expressed If it operate any thing it seems only to have reference to the power of the Grantor as a Restirction on him and not as an Enlargement of the Estate of the Grantee especially where by a Law in being there 's an incapacity upon the very Office not to be granted for life Then it was urged that the Statute of 37 H. 8. was not repealed the 3 and 4 Edw. 6. doth not alter this Matter at all and where it did make any Alteration the same is expresly repealed by this last Act in question It is a settled Rule that if there be two Statutes and both consistent and not contradictory the latter can never be said to repeal the former and so is Dr. Foster's Case 11 Rep. 5 6. so it is in Wills Hodgkinson and Wood Cro. Car. 23. This last Act of Will. et Mar. is consistent with the 37 Hâ—n 8. the one says He shall continue during the time that the Custos doth remain such so as he demean himself well the other says He shall enjoy his place so song only as he demeans himself well in it Now take the Office to be by the 37 Hen. 8. only granâ—able to hold during the continuance of the Custos then suppose in the same Act it should be said to hold so long only as he demean himself well where is the inconsistency or contradiction And if none then this last Act doth not Repeal the former as to this Matter And Mr. Fox's Grant is pursuant to the Statute of Hen. 8. and Mr. Harcourt's hath no relation to it Then 't was argued That 't was unreasonable that a Custos should have an Officer under him of anothers choice when himself is responsible for the Records which such Officer is concerned with The primary Intent of this last Act was only to settle the Doubts about the Keepers of the Great Seal not to alter the Estate of the Office of Clerk of the Peace The Offices of the Judges in Westminster-hall determine with the King's Life who grants them tho ' they are granted to hold during good behaviour In this Act the reason of using these words was for Caution to advertise them that Misbehaviour should forfeit their Places If an Alteration of the Law had been intended they would have said for Life so as he demean himself well especially when as was said before he was removable for Misbehaviour by the former Laws in being Wherefore upon the whole Matter it was prayed that the Judgment might be reversed On the other side it was argued with the Judgment That 't is clear and apparent that this Act of W. M. was made not only to satisfie Doubts and prevent Questions about the Office for the Custody of the Great Seal but to settle the manner of naming the Custos and Clerk of the Peace and that 't is in part introductive of a new Law and in part a reviver of the old But the general end was that that Office of Clerk should be filled and executed by a learned able honest Person because it concerns the Administration of Justice He is the King's Attorney in many respects he not only writes the sense of the Justices in their Orders but draws Indictments and upon Traverses he joyns Issue as one qui pro Domino Rege in ea parte sequitur and prays Judgment for the King in many Cases joyns in Demurrer when occasion requires and is in the Sessions the same as the Clerk of the Crown is in the King 's Bench. Now to accomplish this end of having a Person well qualified and to encourage and oblige him to his good Behaviour it requires a Residence in the County it enjoyns that the Person named be able it subjects him to the Jurisdiction of the Justices who have a daily observance of his demeanour it gives them a power to remove him upon a just Complaint which they could not before it frees him from the usual Temptation to Fraud and Corruption by introducing him gratis sine pretio and to provoke his Care and Diligence it gives him a more durable Estate in his Office then he had before when he bought it viz. Freehold an Estate for his Life That it should be so is convenient because then he will be encouraged to endeavour the increase of his Knowledge in that Employment which he may enjoy during Life whereas precarious dependent Interests in Places tempt Men to the contrary That this is an Estate for Life appears from the words of the Act they do direct how long he shall enjoy his Office so long only as he shall behave himself well If the word only had been omitted
and yet ' t is there in the power of the Ancestor by good Pleading to have supported the Patent and by bad pleading to destroy it and therefore when the Foundation which is the Patent fails the Honour and whatever it be that is erected upon it shall fail also Every Estate by the consent of all Persons interested and concerned in the thing may be taken away for the Law is so set against Perpetuities that a Clause intimating it is void and tho' an Honour is not Jones Rep. 109 123. assignable yet it may be extinguished It 's true if a Man hath but a part of an Estate as only an Estate for Life he can't alone pass away the whole Estate but none who hath the Inheritance in Tail or in Fee but he may destroy the whole and tho' any one have but part yet by the concurrence of all that are concerned the whole may be destroyed It is admitted if he commit Treason and is attainted thereof he loseth the Honour for himself and his Posterity now 't was in his power to do this act overt and if by an act unlawful he hath power to defeat the descent of the Intail upon his Issue there is the same reason that by a lawful act he should part with it there are two Acts of Parliament in force which fortifie the Fine it must be granted that those Honours are within the Statute de Donis and then there can be no reason they should not be within the Statutes of Fines 4 Hen. 7. 34 H. 8. which say that Tenant in Tail may levie a Fine of all things that are intailable within the Statute de Donis whatever therefore is within the one is within both and it is not sufficient to alledge that it is inconvenient that it should be within the Statute of Fines for there is an Act of Parliament and without an Act of Parliament to exempt it it can't be exempted It may be proved by great variety of Precedents to have been the practise in former times anciently nothing more frequent than to release Hoours See Selden's Titles of Honours 730. it was as frequent as to grant them In latter times Delaval's Case 11 Rep. 1. it hath been the Judgment of the Lords that Honours may be extinguished which in 1668. was certified by all the King's Counsel Learned in the Law to be good Authority But to go a little higher Andrew Gifford Baron Pomfret in Fee 4 Hen. 3. Rot. 100. surrendred to the King so 23 Hen. 3. Simon Mountford Esq Earl of Leicester having a Mind to take an Honour from his eldest Son and confer it upon his younger and so it was surrendred and regranted accordingly Selden seems to construe this to be by way of Transmission and not Surrender yet others of later Authority as Cambden's Britan. Title Earl of Leicester say expresly that he did Surrender it and Selden himself says it was by Concurrence of the King King Hen. 3. Rot. Cr. 24. men E. 1. created one Earl of Richmond and he surrendred to the King Cambden's Brit. Title Earl of Richmond Roger de Bigod surrendred not only the Office of Earl Marshal but also the Earldom of Norfolk William Duke of Juliers whose Father came in with Edw. 3. was created Earl of Cambridge 40 Edw. 3. m. 21. in Fee his Son surrenders to the King which Record we have here So Edward the Third made his Son John of Gaunt See Cambden's ubi supra Earl of Richmond who surrendred it to the King And lastly in the Years 1639 1679. Roger Stafford whom the King intended to make a Viscount by the Advice of the Learned Men levied a Fine thereof by which 't is now enjoy'd Lastly he argued ab inconvenienti for no Lord in the House will be in safety if it should be other ways there being many sitting in this House by virtue of Surrenders from other Lords in former days and perhaps some of their Heirs are alive and so if these Surrenders be adjudged invalid it would shake your Lordships own Possessions and make it dubitable whether Forreigners and Persons unknown may not come and thrust them out but if not so it may cause Confusion amongst themselves their former Honours having been surrendred to accept of others and perhaps some not thinking their Titles secure will stick to the former and so occasion Dispute and Confusion about Precedency and lastly it will put a great Disgrace upon your Ancestors proceedings who deemed this Course legal and those must show very good Precedents that it hath been disavowed if they will encounter such constant Practises In the next place 't was answered to their Arguments and Objections and as for that first Argument That an Honour is inherent in the Blood he answered That this Inherency in the Blood is not essential to Honours for an Honour may be created for Life and then none of the Posterity or Blood of the Peer is thereby enobled It may be limited to the Heirs Males of the Body so that an Honour may touch and enter far into the Blood and yet not run with it and farther it may be limited to the Heirs by such a Wife there the Issue by the second Venter shall never inherit the Dignity and yet is as near to the Father as those that are by the first so that 't is no true ground that they go upon that Nobility is inherent in the Blood and for what was alledged as to the Inconveniency of Surrendering Dignities he answered That there may be necessary Reasons for the extinguishment of an Honour and it may be for the benefit and advantage of the Party and his Posterity as if it do happen that the Family do fall into Poverty and be not able to support the Honour of Peerage with decency and so this Honour would perhaps be a Disgrace to the rest of the Lords and in a Child's Case it may happen to a Noble Family to have those Afflictions that to continue the Honour would expose the Family to Infamy and therefore some times to prevent the Son of Adultery from his succeeding to the Dignity it may be convenient to surrender it and yet this cannot be without the concurrence of the Prince who being the Source of Honour can best judge of the Reasons for stopping the Stream and it cannot seem an harder Case to disinherit him of the Honour then of the Estate which he may do and if he leave his Honour without his Estate it will be a Burden on his Shoulders which he will be unable to bear and seeing it 's necessary that there be a concurrence of the Prince it is undecent to suppose so vile a thing of the Crown as to comply with the Peevishness and Simplicity of the Parents where there is no reason for it And as for what hath been alledged for the Invalitity of those Precedents that they were in Cases of New Creations and were in nature of Transmissions he answered That when an
a Colony or Plantation and that imports rather the contrary and by such Names these Plantations have always gone in Letters Patents Proclamations and Acts of Parliament But whatsoever may by some be said as to Statutes in particular binding there the Common Law must and doth oblige there for 't is a Plantation or new Settlement of English-men by the King's Consent in an uninhabited Country and so is the History of Barbadoes written by Richard Ligon Printed at London 1673. pag. 23. says he 'T was a Country not inhabited by any but overgrown with Woods And pag. 100. They are governed by the Laws of England And Heylin in his Geography lib. 4.148 says The English are the sole Colony there they are called the King's Plantations and not his Conquests and he neither could nor can now impose any Laws upon them different from the Laws of England 'T was argued that even our Statutes do bind them and many of them name these Plantations as English they have some Municipal Rules there like our By-laws in the Stanneries or Fenns but that argues nothing as to the general which shall prevail when the one contradicts the other may be a Query another time By the 22 23 Car. 2. cap. 26. against the planting of Tobacco here and for the Regulation of the Plantation Trade the Governours of those Plantations are once a Year to return to the Custom-house in London an Account of all Ships laden and of all the Bonds c. And they are throughout the whole Act called the King's English Plantations Governours of such English Plantations to some of the English Plantations And Paragr 10. 't is said Inasmuch as the Plantations are inhabited which his Subjects of England and so 't is in 15 Car. 2. cap. 7. sect 5. and in 12 Car. 2. cap. 34. they are called Colonies and Plantations of this Kingdom of England From all which 't is natural to infer That the Rules in case of conquered Places cannot prevail here Conquest est res odiosa and never to be presumed besides 't is the People not the Soil that can be said to be conquered The reason of a Conquerour's Power to prescribe Laws is the Conqueror's Clemency in saving the Lives of the conquered whom by the strict right of War he might have destroyed or the presumed Chance of Subjection which the conquered Prince and People threw themselves upon when they first engaged in the War But this is not pretended to here tho' all the Cases about this Subject were put below stairs Then taking it as the truth is certain Subjects of England by consent of their Prince go and possess an uninhabited desert Country the Common Law must be supposed their Rule as 't was their Birthright and as 't is the best and so to be presumed their Choice and not only that but even as obligatory 't is so When they went thither they no more abandoned the English Laws then they did their Natural Allegiance nay they subjected themselves no more to other Laws than they did to another Allegiance which they did not This is a Dominion belonging not only to the Crown but to the Realm of England tho' not within the Territorial Realm Vaughan 330. says That they follow England and are a part of it Then 't was argued further If 't were possible that it should be otherwise when did the Common Law cease On the Sea it remained in all Personal Respects If Batteries or Wounds on Ship-board Actions lay here Then the same held when they landed there and no new Laws could be made for them but by the Prince with their consent Besides Either the Right of these Lands was gained to the Crown or to the Planters by the Occupancy and either way the Common Law must be their Rule It must be agreed that the first Entry gained the right and so is Grotius de jure Belli Pacis lib. 2. cap. 8. sect 6. and these Lands were never the Kings tho' they afterwards submitted to take a Grant of the King 'T is true in case of War what is gained becomes his who maintained the War and doth not of right belong to that Person who first possessed it Grot. lib. 3. cap. 6. sect 11. But in case it be not the effect of War but only by force of their first Entry it must be considered what Interest they did acquire and certainly 't was the largest that can be for an Occupant doth gain an Inheritance by the Law of Nations and the same shall descend then by the Rules of what Law shall the Descent be governed it must be by the Laws of the Country to which they did originally and still do belong But then supposing the Lands gained to the Crown and the Crown to distribute these Lands the Grant of them is to hold in Soccage and that is a common Law Tenure why are not their Persons in like manner under the Common Law When a Governour was first received by or imposed upon them 't was never intended either by King or People that he should Rule by any other Law than that of England And if it had been known to be otherwise the number of Subjects there would have been very small In these Cases their Allegiance continues and must be according to the Laws of England and 't was argued that ex consequenti the protection and rule of them ought to be by the same Laws for they are mutual and reciprocal unum trahit alterum and that Law which is the Rule of the one should be the Rule of the other besides 't is the Inhabitants not the Country that are capable of Laws and those are English and so declared and allowed to be and consequently there 's no reason why the English Laws should not follow the Persons of English-men especially while they are under the English Government and since the Great Seal goes thither And further a Writ of Error lies here upon any of their ultimate Judgments so says Vaughan 402. and 21 Hen. 7.3 that it doth so to all Subordinate Dominions and tho' the distance of the Place prevents the common use of such Writ yet by his Opinion it clearly lies and he reckons the Plantations part of those Subordinate Dominions Now a Writ of Error is a remedial Writ whereon Right is to be done and that must be according to the Laws of England for the King's Bench in case of a Reversal upon such Writ is to give a new Judgment as by Law ought to have been first given Vaughan 290 291 says It lies at Common Law to reverse Judgments in any inferiour Dominions for if it did not inferiour and Provincial Governments might make what Laws they please for Judgments are Laws when they are not to be reversed It lay to Ireland by the Common Law says Coke 7 Rep. 18. tho' there had been no Reservation of it in King John's Charter Then 't was inferred that the lying of a Writ of Error proves the Laws
Disorder and most Proceedings informal and in the English Tongue in such a mean Court where are few Precedents to guide them where the Parties themselves are not empowered to draw up their own Proceedings as here above but the whole is left to the Steward who is a Stranger to the Person concerned and therefore 't is hard and unreasonable that Mens Purchases should be prejudiced by the Ignorance Unskilfulness or Dishonesty of a Steward or his Clerks that there is scarce one Customary Recovery in England which is exactly agreeable to the Rules of the Common Law that the questioning of this may in consequence endanger multitudes of Titles which have been honestly purchased especially since there can be no aid from the Statutes of Jeofailes for they do not extend to Courts Baron 'T was further urged That there was no Precedent to enforce Lords of Mannors to do as this Bill desired that the Lords of Mannors are the ultimate Judges of the Regularity or Errours in such Proceedings that there 's no Equity in the Prayer of this Plaintiff that if the Lord had received such Petition and were about to proceed to the Reversal of such Recovery Equity ought then to interpose and quiet the Possession under those Recoveries That Chancery ought rather to supply a Defect in a Common Conveyance if any shall happen and decree the Execution of what each Party meant and intended by it much rather than to assist the annulling of a Solemn Agreement executed according to Usage tho' not strictly conformable to the Rules of Law For which Reasons it was prayed that that Appeal might be dismissed and the Dismission below confirmed and ' was accordingly adjudged so The Countess of Radnor versus Vandebendy al. APpeal from a Decree of Dismission in Chancery the Case was to this effect The Earl of Warwick upon Marriage of his Son settles part of his Estate upon his Lady for a Jointure and after failure of Issue Male limits a Term for 99 years to Trustees to be disposed of by the Earl either by Deed or Will And for want of such Appointment then in trust for the next in Remainder and then limited the whole Estate in such manner as that a third part of a Moiety thereof came to the Lord Bodmyn the Appellants late Husband in Tail general with the Reversion in Fee to the Earl and his Heirs The Son died without Issue the Earl by his Will appoints the Lands to his Countess for so many years of the Term as she should live and to her Executors for one year after her Death and charges the Term with several Annuities some of which remain in being The Respondent's Father purchased part of these Lands from the Lord Bodmyn after his Marriage and had the Term assigned to him The Lord Bodmyn dyes the Appellant brings her Writ of Dower in C. B. the Respondent pleads the Term for 99 years and she Exhibits her Bill praying that she may after the discharge of the Earls Incumbrances have the benefit of the Trust as to a third of the Profits of this Term and upon hearing the Cause the Lord Chancellor saw no cause to give Relief but dismissed her Bill There were many Particulars in the Case and many Proceedings before both in Law and Equity but this was the whole Case as to the general Question Whether a Tenant in Dower shall have the benefit of the Trust of a Term which is ordered to attend the Inheritance against a Purchaser after the Marriage The Lord Chancellor Jeffryes had been of opinion with the Appellant but the Cause coming to be heard again a Dismission was decreed and now it was argued against the Decree on behalf of the Appellant that Equity did entitle her to the Thirds of this Term that a Tenant by the Curtesie is intitled to it and br the same reason a Tenant in Dower that the Term created by the Settlement was to attend all the Estates limited by that Settlement and in Trust for such Persons as should claim under it which the Appellant doth as well as the Respondents that it was in consequence to attend all the particular Estates carved or derived from the others the Term was never in its creation designed for this purpose to prevent or protect against Dower that in the Case of Snell and Clay the Tenant in Dower had it in Chancery against the Heir at Law and that this was the same Case a Purchaser with notice of that Incumbrance of Dower the Vendor being then married this was an Estate of which the Husband was full Owner and received the whole Profits that in proportion 't is as much a Trust for her for her Thirds during Life as it is a Trust for the Respondents for the Inheritance she claims under her Husband who had the benefit of the whole Trust If there be a Mortgage by an Ancecestor upon the whole Eqinty will permit her to redeem paying her proportion according to the value of her Thirds for Life and the same reason holds in this Case and there 's no Precedent in Equity to the contrary And many Precedents in favour of Tenant in Dower were cited and much Reason well urged from parallel Cases to entitle the Lady to her proportion of the Trust of this Term. On the other side 'T was said that Dower is an Interest or Right at the Common Law only that no Title can be maintained to have Dower but where the Common Law gives it and that is only to have the Thirds of that which the Husband was seized of and if a Term were in being no Feme was ever let in but after the determination of that Term that this is the first pretence set up for a Dower in Equity the Right is only to the Thirds of the Rent reserved upon any Term and 't is a new thing to affirm that there shall be one sort of Dower at Law and another in Chancery that 't is and always hath been the common received Opinion of Westminster-hall and of all Conveyancers that a Term or Statute prevents Dower that if a Purchaser can procure it the same becomes his Defence that this is what the Wisdom of our Forefathers thought fit to use and tho' some Mens reasoning may render it in appearance as absurd yet the consequence of an alteration will be much more dangerous than the continuance of the old Rules that tho' this Lady's Case be unfortunate yet the multitude of Purchasors who have bought upon full consideration and have been advised and still conceive themselves safe under this Law will be more unfortunate if the Law be broken Then ' was argued That there could be no Equity in this Case for it must be not only from the Party Appellant but also against the Respondent and that 't is not because he bought the whole Her Portion her Quality and her being a Wife create no Equity as to the Purchaser 't would perhaps be prevalent against an Heir but
that this was never designed to take effect as an use to be vested immediately and it was no more then if the Deed had declared the use to be after the expiration of twenty Years or at other future time to the Heirs of the Body of William Horne and for default of such Issue to his right Heirs and that such time had happened the use would have vested in the Heirs of his Body or in his right Heirs if he had Died before that time That 't is true there must be a person capable of taking at the time when the Contingency happens and so there was here at the time of his Death That it could never be intended that the Heirs should take immediately for that then there was no such person in being there could be no Heirs during his Life That this was like the Case of Webb and Sir Caesar Cranmer where the Trust of the Estate during the Life of the Duke of Southampton was adjudged to remain in the Heirs of the Devisor the Duke himself not being capable to take it That here being no person able to take under this Deed and Fine during the Husband's Life it shall be construed to remain as it was before till that Life ends and then the use ought to take effect for otherwise both the Deed and Fine are to no purpose they are all in vain and the intent of the parties to it is defeated And there were Cited the Lord Paget's Case in 1 Anderson and Woodlett and Denny 2 Crook 439. and 1 Leon 256. On the other side it was argued with the Judgment that this Deed and Fine can raise no use to the Heirs of the Husband according to the Rules of Law It was insisted That if Husband and Wise do levy a fine of the Wife's Land and no uses are declared or such uses are declared as are void and can never take effect such Fine is to the use of the Wife and her Heirs that in such case the Estate remins ' as it was or if the Fine Operates any thing it shall be for the benefit of the party to whom it did belong before Then it was urged That this was designed to raise an use immediately to the Heirs of the c. and that there was no person capable of taking at the time of levying this Fine the common Maxim in the Law proving it quod nemo est heres Viventis that the name and nature of an Heir import a successor after Death that this being designed to raise an use ex presenti and no person being capable of taking at that time the same must be void That this is the case of a Deed executed in the Life-time of the parties and not a Will where large allowances are often made in favour of supposed intentions by reason that persons are often surprized by Sickness and presumed to want the assistance of Counsel but the Rules of Law are always allowed to govern in Construction of Deeds Then it was urged that nothing was ever designed to the Husband himself by this that no words in the Deed can favour such a presumption that this must either work as an Estate in present or by way of remainder if the latter then by the known Rules of Law there must be a particular Estate to support it and such particular Estate must be either expressed or implied here is none expressed and if implied it must be in the Wife and if in her then she dying before the Husband her particular Estate did determine before the remainder could take place and consequently by all the Rules of Law it can never take place and no particular Estate can be implied in or for the Husband for that there is nothing said shewing such intent and if the Construction of Law be to prevail then as was urged before that is in favour of the Wife But here it was plainly designed to take effect immediately and therefore void because there was no person in being capable of taking at the time the Estate was intended to vest and no uses are to be executed by the State which are limitted against the Rules of the Common-Law Chudleigh's Case 1 Rep. 129. if the limitation of an use be at this day to A. for Years and afterwards to the use of the Heirs or Wife of B. which shall be this is void because 't would have been void if limitted in possession Dyer 190. the Earl of Bedford's Case in Popham 3 4. and 82. resolved in like manner to be void because would have been so in an Estate conveyed at Common-Law And all that can be objected is that then this is all void which is no more than may be pretended upon every imperfect conveyance but here the Case is in a Court of Law and the Defendant is a Purchaser who hath been Thirty Years in Possession tho' that doth not appear in the Case And it was said That as to the Notion of a springing contingent use 't is hardly intelligible in it self and by no means applicable to this Case because here are no words in this Deed that carry any relation to a future time or Contingency and the Objection is only this That the Conveyancer was mistaken in his Judgment or that the parties knew not what they meant or that they meant to create such an Estate and in such a manner as the Law will not allow and neither of these are Reasons sufficient to prevail for the Reversing of a Judgment given according to the Rules of Law by which Men's Inheritances have all along been governed and upon which many Estates do now depend 'T was further urged That the contrary Opinion which must be advanced to annul this Judgment would reder the Law and Men's Conveyances as doubtful and uncertain as last Wills and Testaments and submit Men's Titles to the Arbitrary Power and Will of those that shall Judge of them It is to impower them to suppose intentions where not expressed and to raise uses by Implication where they were never designed And in short 't will destroy all the difference between good and bad Conveyances and enable Men to limit uses and raise Estates contrary to and in different manner from what the Law hath hitherto allowed it will render Purchases more uncertain than they are at present and that 's more than enough already and the consequence must be to produce a confusion in property c. wherefore upon the whole it was prayed That the Judgment might be affirmed and it was affirmed accordingly Watts al' versus Crooke APpeal from a Decree in Chancery The Case in short was this That Peter Crooke and Elizabeth his Wife who was Sister of the half Blood to George Watts claimed to have an equal share with John Watts and Elizabeth Camfield who were Brother and Sister of the whole Blood to the Deceased of his Personal Estate and a Decree was made in Chancery in favour of Crooke and his Wife It was argued on
Appellants were relieved Richard Carew who married Penelope would have no Portion with her 'T was answered That that could not alter the Case the Agreement and Intention of the Parties being the most considerable Matter and besides Richard enjoyed the Estate during his Life without impeachment of Waste And as to the Debts 't was answered That those were no Ingredients in the Question however there would be 4000 l. paid towards it and the Personal Estate was more than enough to pay the residue For which and other Reasons 't was prayed that the Dismission might be Reversed On the other side it was insisted on with the Decree 1. That the Limitation by the Settlement in July 1674. to the Heirs of Penelope upon payment of 4000 l. by them to the Heirs of Richard Carew within Twelve Months after the death of Richard and Penelope without Issue at the time of the decease of the Survivor of them is a void Limitation the Fee-simple being before limited to Richard and his Heirs and so not capable of a further Limitation unless upon a Contingency to happen in the Life of one or more Persons in being at the time of the Settlement which is the furthest that the Judges have ever yet gone in allowing these Contingent Limitations upon a Fee and which were the Bounds set to these Limitations by the late Lord Chancellor Nottingham in the Case of the Duke of Norfolk that tho' there were such Expressions as had been read on the other side yet the Bounds set by him to these Limitations were only dependent upon Life or Lives in being and never as yet went any further And if they should be Extended and allowed to be good upon Contingencies to happen within Twelve Months after the Death of one or more Persons they may be as well allowed upon Contingencies to happen within a Thousand years by which all the Mischiefs that are the necessary Consequents of Perpetuities which have been so industriously avoided in all Ages will be let in and the Owner of a Fee-simple thus clogged would be no more capable of providing for the Necessities and Accidents of his Family then a bare Tenant for Life 2. If this Limitation were good 't was urged That the Estate limited to the Heirs of Penelope was virtually in her and her Heirs must claim by Descent from her and not as Purchasors and by Consequence this Estate is effectually barred by the Fine of Penelope the design of limiting this Power to the Heirs not being to exclude the Ancestor but because the Power could not in its nature be executed until after the decease of the Ancestor it being to take effect upon a Contingency that could not happen till after that time and this Bill and Appeal was not only to have the said Richard Carew who married Penelope to have not one Farthing Portion with his Wife but to make the now Respondent Sir Richard Carew to lose the 4855 l. which his Father Sir John Carew paid as charged on the Lands in question For which Reasons and many others well urged about the Mischief and Danger of Perpetuities and their Increase of late years to the intangling and ruine of many Families it was prayed that the Decree of Dismission might be affirmed but the same was Reversed Sir William Morley Knight of the Bath Plaintiff Versus Peter Jones Defendant WRit of Error to Reverse a Judgment in B.R. in Ejectment upon the Demise of Bellingham upon a Special Verdict which finds That Anne Bowyer Spinster was seized in Fee of the Mannor of Frencham that the said Anne and Edward Morley Esq and Sir William and J. Wells ante tempus quo c. viz. 22 July 1664. did make and as their Deed deliver a certain Indenture with their Seals sealed whereby the said Anne demises the Mannor aforesaid to Sir William and Wells and their Executors for one Month from the Day next before the Day of the Date that Sir W. and Wells entred and were possessed that they the 23d of July in the said Year sealed and as their Deed delivered another Indenture with their Seals sealed whereby the said Anne reciting a Marriage intended between Anne and Edward and that Edward had agreed to settle a Jointure out of his Lands to the value of 300 l. per Annum and that the said Anne had agreed in case the Marriage took effect and a Jointure were made as aforesaid to settle the said Mannor on him and his Heirs and to particular Trusts after-mentioned until the same be performed She the said Anne in consideration of the Marriage and in performance of the Agreement on her part Bargains Releases and Confirms to Sir W. and Wells their Heirs the said Mannor and all her Right c. and the Reversion c. in Trust for the said Anne and her Heirs until the Marriage take effect and assurance of a Jointure be made as aforesaid and after such Marriage and Assurance of such value as aforesaid then to the use of Edward and his Heirs c. Then the 1st of August 1664. a Marriage was had then the 29th of Jan. 1665. a Deed is Executed between the said Edward and Anne of the first part and Young and Truster as Trustees on the other part reciting that a Fine is already acknowledged and agreed to be levied in due Form of Law next Hillary Term between the said Young and Truster Plaintiffs and the said Edward and Anne his Wife of the said Mannor of Frencham and thereby declared that the said Fine should be to the use of Edward and his Heirs Two days after the Execution of that Deed and before the Fine levied viz. 31 Jan. 1665. another Writing indented was made and executed under Seal between the said Edward of the one part and the said Anne of the other part whereby they both in Consideration of the said Marriage and other good Causes did Covenant Consent and Agree to revoke all former Grants Bargains Contracts Writings Covenants and Obligations made or done between them or any other for them until the said Edward had performed the Agreements in the said Marriage Settlement on his part both in Law and Equity and that in default thereof it might be lawful for the said Anne and her Heirs to enter into the said Mannor and Land conveyed by the said Settlement without the lett of the said Edward and his Heirs Afterwards the Fine was levied Octabis Purificationis which was the 9th of February in that Term And afterwards by Indenture between the said Edward Morley of the one part and one Henry Doble of the other part dated 9 July 1666. the said Edward in consideration of 600 l. Mortgages the said Mannor to Doble and his Heirs Then the Money not being paid by Edward Morley to Doble Doble did 2 June 1676. in consideration of 600 l. with Interest paid by Sir William Morley conveys the said Mannor to one Thomas Young that Edward Morley did never convey the Lands agreed
afterwards the 20 Aug. 25 Car. 2. he being so seized did Make Seal and as his Deed deliver a certain Writing purporting a Surrender of the said Lands to the said Sir Simon Leach which Writing was prout c. Then they find that the said Simon Leach the Brother non fuit compes mentis sue tempore confectionis sigillationis deliberationis scripti illius c. That afterwards viz. 10 Nov. 25 Car. 2. the said Simon the Brother had Issue of his Body on the Body of the said Anne his Wife Charles Leach that the said Simon died and Charles Leach the Lessor of the Plaintiff is eldest Son and Heir of the said Simon c. Et si videbitur Cur ' quod c. Upon this Verdict there was Judgment for the Plaintiff And now it was argued That the said Judgment was Erroneous and said that in the Case there were two Queries 1. If this were a good Surrender there being no Acceptance or Agreement by Sir Simon before the Birth of the first Son Charles But this was not insisted on before and therefore waived here the same having been adjudged by the Lords to be a good Surrender even to an Infant without Acceptance in another Action between the same Parties which you may see reported in 2 Ventris 198 208. Then it was argued on the second Query That the Lessor of the Plaintiff in the Ejectment being a Remainder Man in Tail cannot take any Advantage of his Father's Lunacy That in this Case he could claim no Title as Heir at Law to his Father or Uncle because of the intermediate Remainder to the Defendant in Tail so that quoad this Estate he is as a meer Stranger and not as Heir and tho' he were able to avoid it by Writ or the like yet it being once good the particular Estate of Simon the Father of Charles was determined before the Contingent Remainder to the first Son could take place and consequently it can never after revive Then the Question is Whether this Surrender by a Non compos being an act done by himself and not by Attorney be void or only voidable There 's no express Case that a Surrender by one who is Non compos to him in Remainder is void Perhaps 't will be said as it hath been That the Acts of a Madman are meer Nullities by all Laws in the World But to this 't is an Answer That the Laws of England have made good and honest Provisions for them so as to avoid their Acts for the Benefit of the Party of the King and of the Heir But it was repeated that this was a Contingent Remainder and if it could not vest when the particular Estate did determine whether by Death or Surrender it never could vest at all for a future Right to defeat the Surrender as Heir cannot support such a Contingency a present right of Entry would but if no such present right the Remainder is gone for ever and here was no such in Charles If Tenant for Life make a Feoffment with condition of Re-entry the Contingent Remainder shall never arise again tho' the Condition be broken and a Re-entry were made So is the Case of Purefoy versus Rogers 2 Saund. 380. Wigg versus Villers 2 Rolls Abridg. 796. and then Charles cannot avoid this Deed for the avoiding of a Deed is to take somewhat out of the way in order to the revesting of somewhat but here was nothing to work upon for if the Surrender were good for a Moment the particular Estate for Life was once gone and consequently for ever and this must hold unless the Act were totally void Then 't was argued That during the Life of the Party 't was only voidable for the King by Office no Man can Stultifie himself and so is the great Resolution in Beverly's Case 4 Rep. and 1 Inst 247. and Whittingham's Case 8 Rep. and if it be not void as to himself it cannot be void as to others And tho' Fitzh in his N. B. says that he himself may have a dum non fuit compos that is not agreeable to the received Law for Beverly's Case was never shaken till now and Fitzh supposes it only voidable by saying that Writ doth lye There is also a Reason for this Rule of Law that a Man shall not disable himself by pretence of Distraction because if the Pretence were true he had no memory and consequently could not know or remember that he did such an Act and therefore 't is as it were impossible for him to be able to say that he was so distracted when he did it 't is for him to say what 't is not possible for him to know But they would compare this to the Case of an Infant yet even there all his Acts are not void his Bond is only avoidable he cannot plead that 't is not his Deed 'T is true that Acts apparently to his prejudice cannot be good as 1 Cro. 502. Suppose a Non compos Signs Seals and Delivers such a Deed and after recovers his Senses and agrees to it would not this be a good Surrender from the first Perkins sect 23. 1 Inst 2. and if it can be made good by a subsequent Agreement 't was not totally void and if not totally void 't is with the Plaintiff in Error The Law besides is very tender in case of Freeholds to make Conveyances void by bare Averments and this would be of dangerous Consequence if when there was no Inquisition or Commission of Lunacy during Life that thirty or forty years after a Conveyance it should be in the power of a Stranger to say that the Vendor was mad 't will make Purchasors unsafe Acts solemnly done ought to have a solemn Avoidance The 1 Hen. 5. cap. 5. Fine to be void 't is void as a Bar but yet it makes a Discontinuance and must be solemnly avoided Lincoln Colledge Case 3 Rep. Stroud and Marshal 3 Cro. 398. Dett sur Oblig ' The Defendant pleads that at the time he was of non sane memory and on demurrer adjudged no Plea and the Opinion of Fitzh held not to be Law And 3 Cro. 622. 50 Assis 2. Fitzh Issue 53. a Release by a Non compos which is much the same with a Surrender only one works upwards and the other downwards and after Recovery the Party agrees to it the same is binding 39 Hen. 6.42 and 49 Edw. 3.13 Then was mentioned the Provision of the Law in these Cases besides the Care of the Court of Chancery which protects the weak and unwary by Rules of Equity There 's a Writ de Ideota Inquirend ' and the express direction of the Writ is to enquire quas terras alienavit which shews that 't is not void The Statute of Prerogativa Regis is express Authority for it the Reason given is that such Persons Lands should not be aliened to their hurt or the King 's It must be agreed that before Office found the King cannot avoid
there could be no colour for a Doubt By 1 Inst 42. 'T is an Estate for Life determinable upon Misbehaviour for during good Behaviour is during Life 't is so long as he doth behave himself well i.e. If he behaves himself well in it so long as he lives he is to have it so long as he lives during Life and during good Demeanour are therefore synonymous Phrases the same thing when used with relation to Offices the Condition annexed if observed continues it during Life the contrary determines it This is the Rule and Law in case of Offices in general and must hold in this for this is an Office 2 Hen. 7.1 He is called Att ' Domini Regis 'T is capable of being enjoyed for Life and consequently of being granted so especially when an Act of Parliament declares it shall be so There 's nothing in the nature of the Employment that hinders it and there can be no doubt but that a Statute may impower a Custos in possession who hath only an Estate at will to name a Clerk to hold during Life or good Behaviour The Justices are at pleasure Suppose then the Act had said That they should name him in this manner he must have continued tho' they had died or had been removed the Case is the same here he is as much intrusted with the Acts of the Justices as with the Records belonging to the keeping of the Custos Then there 's nothing in the Act that savours of an Intention to make him dependent on the Custos's Office The Custos is to name him but the Justices have the controul over him he is an Officer to the Sessions and the Justices only can remove him The Limitation of the Interest of the Custos in his Office and that of the Clerk are different and that shews that the duration of the one was not to depend on the other Besides the Custos is to name not when he shall be made Custos as it would have been worded if the intention advanced on the other side had been true but whensoever it shall be void It doth not say Every new Custos shall or that every Custos shall name but generally when 't is void he shall c. Then as to the Objection That this new Act is consistent with the 37 Hen. 8. and therefore that is still in force 'T was answered That by the former Act he was intirely placed under the Custos who had power to displace him upon Miscarriage the Sessions then could not do it tho' a Court and a Court of Record they might suspend him but could not deprive him of his Office even for ill Demeanour This was that Act. Now the present Law abridges the power of the Custos he must name a Resident before he might appoint any able Person the Person was then removable by the Custos now only by the Justices Care is taken that nothing is to be given for the Office and now he may make a Deputy without the approbation of the Custos Here 's plainly a different Jurisdiction over him and a different Estate vested in him this express Limitation of the Interest to him is an Exclusion of the former Estate as dependant upon that of the Custos And besides this is a Substantive distinct enacting Clause of it self and no ways relating to the Statute of Hen. 8. Why was this Limitation penned differently from that unless to give another sort of Interest As to the Cases of new Laws which repeal former 't was said That the Rule was certain that whatsoever Statute is introductive of a new Law tho' penned in the affirmative is a Repeal of the former as implying a negative i. e. the latter ought to be observed if it concerns the same Matter The Statute of Edw. 6. controuled the Statute of Hen. 8. One directed the Keeper to name the other the King and both are in the affirmative yet the latter must be observed And if this be a new Estate as it hath been adjudged below then the Party ought to enjoy it And for this was cited 1 Sid. 55. Plowd 113. and other Books Then 't was said That the Clerk of the Peace named by the Justices in default of the Custos would have an Estate for Life and by the same reason it ought to be so here Tho' the Custos be to be named according to the Statute of Hen. 8. yet he is not to execute his Power of Custos according to that Act but is tied to a Resident hath not the Approbation of a Deputy and cannot remove By the Statute of Hen. 8. the Clerk had but an Estate at the will of the King the Custos having no other This is so long as he doth well in his Office these are different and when the Custos hath named him he is in by the Statute If what they on the other side contend for had been intended there was no need of these words of Limitation at all and the words in like manner as by the former act had fulfilled the intention if such had been As to the word only that would make no Alteration in the Case of any other Office Suppose an Office granted to a Man quamdiu tantum or solummodo se bene gesserit would that give less then an Estate for Life The word only was added not to abridge the Estate of the Clerk but rather to restrain the Power of the Custos that he should have Authority only to limit it during good Behaviour and not for a less Interest or Estate The Custos is confined that he shall not grant it for Years or at Pleasure Besides only is but just so long and no longer or so long as and 't is the same thing with the word as without it Dummodo sola vixerit is during all her Widowhood Suppose a power to make Leases to hold only for and during the term of 21 Years the same would be good for the whole Term. Then 't is no Objection That the Estate of the Clerk is greater than his is who names him for that may be by Custom as in the Offices in Westminster-hall Hobart 153. and the Clerks of Assize where usage fixes the Estate And the like in Case of Power to make Leases upon Family Settlements to Uses where Tenant for Life grants larger Interests then his own 'T is true the Powers and Estates raised by them issue out of the Inheritance but the Tenant for Life only names them as the Custos doth here tho' the Statute gives the Interest As to the Inconvenience That dependent Offices should continue against the will of their Superiours that can be no Objection since there are few great Officers in the Realm but have many Substitutes and Inferiours under them which were named by their Predecessors and are not removable almost every Bishop in England is under these Circumstances with respect to the Register of his own Court who notes and records his Acts c. This is an
Days of one whether they be many or few in number must be understood the Life c. That the Testatrix here could mean no other by Days but Life when she said That in case it pleased God to take her out of this World if it was his Will to give Days to give Life to her Child she left it all that belonged to her knowing well That if the Child was born alive it must be maintain'd from that Moment out of what was so left it that it appeared from the Preamble of the Codicil viz. In case it shall please God to take away my Child as well as my self then c. That the Testatrix never intended the Estate to go over unless the Child died as well as her self in her lying in Then it was argued from the Nature of the particular Legacies they were of such a sort as that they must be given without Sense or Reason had she not supposed her Child's Death as well as her own in her lying in for otherwise those new Ribbons must become old which were intended as a Present to a young Gentlewoman Clothes lockt up in a Trunk would have been of no use to Persons then in Distress and the poor Orphan had gone too far in Years to learn a Trade Then other Things are given as Tokens to be kept and worn by them for her sake as long as they lived Now what Reason can be assigned for this if she did not mean and suppose a Death in her lying in From whence it was inferred That the Intention of the Testatrix was to give all she had to her Child in case she survived her and if it did not survive her but was taken away as well as her self in her lying in then her Intention was to give that same All which she had given to her Child to other People as specified in the Will and unless this were the Intention the Child must have starved or lived upon Charity not having the Property of what was left it and the Condition precedent according to the Respondents Exposition excludes the Child till its Years of Discretion wherefore 't was prayed that the Decree might be reversed On the other side it was argued with the Decree that the same was just that no Objection could arise from the Nature of the other Legacies or of this as being reasonable or unreasonable for that 't is the Natural Right and Priviledge of every Person to dispose of that which they have at their pleasure to do what they will with their own a Priviledge so certain that tho' 't is used many times to ill purposes yet the Law cannot interpose nor restrain the Proprietor no not to preserve him and his Family from ruine as daily Experience shews That it is agreeable to Law and Justice and to true Piety to see that the Will of the Dead be performed and tho' the Law have ascertained how Estates shall go when there is no Will yet when there is a Will that disposes of it otherwise then the Law would do the Courts below will compel a Performance of such a Disposition as the Will directs Then 't was said That the Intention of the Testatrix in favour of the Respondent is both Charitable and Prudent He was her nearest Relation in England and considering a great part of what she left was once her Husbands she honourably gave as much to his as to her own Relations making her Husband's Sister and the Respondent Charles residuary Legatees to share equally and so is the Decree And to Reverse this Decree and permit the Appellant to go away with the whole as she must if the Decree be reversed doth directly destroy all the Prudent and Charitable Intentions of the Testatrix and carries the Estate where she never designed it viz. to the Appellant Then 't was argued That the Court of Chancery had done well in taking the Opinion of Persons skilled and knowing in the Matter in question that the Gentlemen of the Long-Robe of that Country now here in London did all give their Opinions that according to their Construction of these words in a Will it was an arrival to Years of Maturity or Age enabling to dispose that unless the Child had lived to such an Age as that she had been capable to give the same away her Representative in this Case could not be intituled to it Then ' was said That words are to be interpreted according to the Sense and Acceptation of those which use them That the Testatrix was a Native of France and therefore this method of Inquiring into her Meaning was just and reasonable That the Courts at Law have frequently consulted Merchants about the signification of Mercantile Terms and Trinity House about Marine Phrases so in like manner Grammarians Criticks Chymists and Artificers have been in the Court of Kings Bench consulted according to the Nature of the Thing in question upon words belonging to and used in their respective Professions That in case of words disposing of an Estate in a Foreign Language by the Will of a Foreigner the Judgment of Divines or Grammarians could be no proper Direction to the Court of Chancery but the Means of Information must be from those who were acquainted with the Rules of Interpretation in Case of Wills amongst those People That the Opinion of those Gentlemen was sufficient to justifie the Decree But then it was further argued That here the Meaning of the Testatrix could not be such as the Appellant would pretend i.e. that she meant to give her Estate to the Respondent and others only in case the Child she then went with should be still born or if born alive should dye with the Mother in her lying in for these Reasons First For that she was so far from apprehending that the Child would either be still born or if born alive would dye as soon as her self or in her lying in that she expected 't would live and as she hoped to full Age for she takes particular Care of its Education and earnestly recommends the same to the now Appellant and others prays God to bless it and not forsake it and hoped that all the Relations on the Father's side would for the Father's sake do it all the Services it should stand in need of Then taking it that the Testatrix did expect the Child to out-live her as unquestionably she did if her meaning had been such as the Appellant hath put upon her words the way to have it sure fixt to the Child and then to the Appellant had been to have made no Will at all because if the Child survived the Mother but a day or an hour or never so little the Law had vested the whole first in the Child in its own Right and upon the Child's decease in the Appellant as Administratrix to the Child Suppose the Child had outlived the Mother for a Month or the like what Interpretation could have been put upon this Will
Honour is Surrendred and a new Honour granted the former is either extinguished or not before the other takes effect if not then the Party hath both together against the will of the Donor and perhaps the new Honour may be of that Name and Place and those Persons may be concerned in it that will not permit it to be effected and if it be in the power of the Ancestor for the advantage of his Posterity by the Surrender of one Honour to take a greater it may be also in his power to do it for his prejudice As to the Objection That by the same Reason an Honour may be extinguished it may also be Transferred he answered That there was a great disparity betwixt them for as to Alienations of Honours there 's a great reason they should be disallowed for they all flow from the Prince and therefore 't is not fit they should be conferred on any but by the Prince tho' the King 's of England have granted power to a General to give the Honour of Knighthood c. in the Field for the Reward and Incouragement of Valour yet this granting of Nobility is a Prerogative peculiar to the King's Person alone no Man else can ennoble another Time was indeed when the Earls of Chester having Counties Palatine by virtue of their Jura Regalia did create Barons yet they never sate in Parliament as Peers because Peerage being a thing of so high a nature cannot be given by any but a Soveraign and is given as a Trust and Obligation so that common Reason saith they are not transferrable It is said in our Law that where Offices are granted to a Man in Fee See Jones 122 123. he may grant it over yet in some Cases they are so near to the Crown that they cannot be transferred but must descend with the Blood upon the same Reason no Man can ever transfer an Honour for the near Relation which it hath to the Crown but in case of Extinguishment that Relation and Trust ceaseth and so they are different Cases Then lastly as to the great Objection of the Judgment of the House of Lords in Roger Stafford's Case Anno 1640. he answered That notwithstanding that Case their Lordships had given him leave to argue it and therefore they intended not that should be any Impediment 2. That is no Judgment for they being a Court of Judicature do as other Judges judge of the Matter before them only Then the Question was Whether an Honour could descend to the half Blood They refetred it to the Judges who were of Opinion that it should Thereupon ariseth another Question Whether a Man might Convey or Transfer his Honour to another 'T was resolved he might not This drew another Question whereupon they resolved that a Lord could not Surrender his Dignity the Original Cause was about a Descent to the half Blood the Resolution is he cannot Surrender how then can they pretend that to be a Judgment when the Question in point of Judgment was not before them Suppose it had been resolved and it 's a wonder it had not all that time that a Lord could not forfeit and that had been a third step to have made it a perfect Business for considering the times it had been a most convenient Resolution But besides all that the King's Counsel were never heard in the point and the rejecting the Opinions of Learned Men shows it was no Resolution of the whole House tho' entred upon the Journal and therefore he prayed Judgment against the Petitioner The Earl of Shaftsbury spoke in the House for the Petitioner The stress of the Argument for the King in this Case is founded upon these two Assertions 1 That Honours are taken to be within the Statute de Donis c. and the general Rules of that Statute 2. And then secondly That Honours are to be governed as other Inheritances by the Rule of the Common Law As for the first it hath not been proved for the Resolution in Nevil's Case 2 Jac. was Extrajudicial and no Judgment of any Cause before them and in such Cases the Judges do not hold themselves to be upon Oath and if there be two or more of another Opinion they do not refuse to sign the Resolution of the major part and so it goes under the denomination of all the Judges but if it were a Judgment of them altogether they could neither alter nor make new the Law neither could they make that intended within the Statute de Donis c. which was not in being till many Ages after Beauchamp in Richard the Second's time being the first Honour that was entailed by Patent 2. The second Assertion is contrary to the Opinion of the most Learned Men the Honour and Dignity of the House the constant practise of Westminster-hall and the direct Evidence of the thing it self Justice Berkley a very learned Judge declared his Opinion Febr. 6. 1640. as appears by the Records of this House That Honours descend from the first that was seized of them contrary to the Rules of other Inheritances and that Honours are not governed by the Rules of the Common Law Justice Dodderidge in Jones 207. is of opinion That Honours are Personal Dignities which are affixed to the Blood the Lords never yet suffered their Honours to be tried at any Court at Law or any other where save before themselves tho' their other Inheritances are tried there as well as other Mens So possessio fratris holds of Lands but not of a Dignity which is not disposed of as other Inheritances nor will it be guided by the strict Rules of Law The Lord Coke is of Opinion in Bedford's Case That an Honour could not be taken away but by Act of Parliament therefore it will be allowed that the concurrence of all Parties concerned may extinguish this as well as other Inheritances but the Concurrence of all can't be without Act of Parliament for the whole Kingdom have an Interest in the Peerage of every Lord It is a dangerous Doctrine to say our Judicature and Legislature is our own only The House of Lords is the next thing to the Crown tho' that be far above them yet those that reach at that must take them out of the way first they were voted useless and dangerous before the Crown was laid aside and as in Descent of the Crown the whole Kingdom hath such an Interest in it as the King cannot Surrender or alien it so in a proportionable degree tho' far less the King and Kingdom have an Interest in their Lordships and Dignities and Titles It is true they may be forfeited but it doth not follow that they may be extinguished by Surrender There be two Reasons for the Forfeiture 1. There is a Condition in Law that they shall be true and loyal to the Government 2. Honours are inherent in the Blood and when that is corrupted that which is inherent is taken away but in case of a Surrender these Reasons do
not hold there is no Breach of any Condition in Law nor any Corruption of the Blood for these Reasons Felony without Clergy forfeits Honours whereas other Inheritances tho' Fee-simple are lost but for a year and a day and so are Freeholds for Lives which is another clear Instance that Honours are not governed by the Rules of Law It is pressed as a known Law that Honours are grantable for Lives a Point of greater Consequence than the Thing in debate It 's not a fair way of arguing nor to be allowed of As for the Precedents that are Selden 730. is expresly against them for it saith that the Honour of Baronages were in Abbots only in right of their Abbies not inherent in them So that 't is plainly inferred that other Honours are Personal Dignities The Lord Delaware's Case 11 Rep. makes nothing for them for it doth not follow that because he could not Surrender that which was not in him therefore he might Surrender that which was in him As to the other Precedents he gave these three Reasons 1. They were bare Surrenders no Fines 2. All those were made by Persons that had advantage by them having greater Honours granted unto them or such whose Interest was beyond the Seas and therefore were willing to quit their Dependencies here upon good Considerations that pleased them Et volenti non sit Injuria 3. All these Surrenders passed sub silentio and never admitted of any Dispute But as for the sole melancholy Precedent of Roger Stafford 1638. which was condemned in Parliament 1640. 't is to be observed that Resolution can't be condemned because of the Times for the Affront to the Lords in taking such a Fine was in 1638. and when could it be more properly remedied then in 1640. except it be expected there were a Prophetical Spirit of Judgment against a thing not in being there were 94 Lords present and the Vote was Nemine Contradicente which gives it as great an Authority as any Resolution that ever was The King's Counsel were not heard in the Case of Ship-money nor Knighthood-money where they had more right to claim to be heard than in this Case To conclude a Fine is a Judgment in the Common Pleas and your Lordships Honours are not triable in that Court below in Westminster-hall but if this Fine be allowable they must be triable there as well as other Inheritances And as to what has been said That some of your Lordships sit here by Remainders and they are in danger if Honours be not allowed to be intailed it 's denied and if they be intailed it 's not of the same nature with other Inheritances neither doth any Lord sit here by Title of a Remainder but by Virtue of a new Grant in the same Patent 'T was afterwards declared That the Lords Spiritual and Temporal in Parliament assembled upon a very long Debate and having heard his Majesty's Attorney General are unanimously of Opinion and do resolve and adjudge that no fine levied or at any time hereafter to be levied to the King can bar a Peer's Title of Honour or the Right of any Person claiming such Title under him that levied or shall levie such Fine Duval versus Price WRit of Error on a Judgment in the Court of Exchequer affirmed on a Writ of Error before the Keeper of the Great Seal c. in an Action of the Case for Slander The Writ was to this Effect Gullelmus Maria c. Thes Baronibus de Scaccario suo salutem quia in recordo processu ac etiam in redditione judicij loquelae quae fuit in Cur ' nostra de Scaccar ' coram Baronibus nostris praed ' de Scaccar ' nostro praed ' per Billam inter Edward ' Price Arm ' debitor ' nostr ' Johan ' Duvall Arm ' de quadam transgression ' super casum eidem Edwardo per praefat ' Johannem illat ' super quo judicium in Curia nostra de Scaccar ' reddit ' fuit pro praefat ' Edwardo versus dict' Johann ' qua quidem record ' process ' causa Erroris intervenient ' in Camera Consilij juxta Scaccar ' vocat ' le Councel Chamber coram Domino Custod ' Magni Sigilli Angliae vobis praefat ' Thes venire facimus jud ' inde versus praefat ' Johann ' coram c. affirmatum est quia in affirmatione judicij praed ' versus praed ' Johannem coram c. Error ' intervenit manifestus ad grave dampn ' ipsius Johannis sicut ex quaerela sua accepimus quos Error ' si quis fuerit modo debito Corrigi eidem Johanni plenam Celarem justitiam fieri volentes in hac parte vobis Mandamus quod si judicium coram praefat ' c. affirmatum est tunc record ' process ' tam judicii quam affirmation ' praed ' cum omnibus ea tangentibus quae coram vobis jam resident ' ut dicitur nobis in Parliament ' nostro viz. 17 die Septembris prox ' futur ' distincte aperte mittatis hoc Breve ut inspectis record ' processu praedict ' ulterius inde de assensu Dominor ' Spiritualium Temporalium in eodem Parliamento Existent ' pro Errore illo Corrigend ' fieri faciamus quod de jure secundum legem consuetudinem Regni nostri Anglie fuerit faciend ' Teste nobis ipsis apud Westm ' 8 Maii Anno 6. Record ' Process ' de quibus in Brevi de Errore huic Schedule annex ' specificat ' fit mentio sequitur in haec verba Placita coram Baron ' de Scaccar ' c. Midd ' Memorand ' quod alias scilicet c. And by the Bill Price complains of Duvall praesent ' hic in Cur ' eodem die de placito transgr ' super casum pro eo viz. quod cum he was a good Subject and free from all Suspicion of Treason and was a Justice of Peace in Radnor and Montgomery-shire and well performed his Duty and well-affected to the King and Queens Government and ready to oppose all their Enemies c. the Defendant maliciously designing to prejudice the Plaintiff and to bring him into the Displeasure of his Prince c. did tali die anno apud Westm ' in Com' Midd ' habens colloquium of the said Plaintiff say these English words of him He meaning the Plaintiff is disaffected to the Government the Government of the King and Queen meaning and having other Discourse of the Plaintiff and of the Government of the King and Queen did say of the said Plaintiff these other words viz. He meaning the Plaintiff is disaffected to the Government the said Government of the King and Queen meaning By pretext of which said words he was injured in his Credit and fell into the Displeasure of their Majesties and his Office aforesaid by reason thereof did totally lose and remain'd hitherto daily