Selected quad for the lemma: life_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
life_n	estate_n	good_a	remainder_n	4,208	5	11.4273	5	false

Text snippets containing the quad

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

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

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

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

must Appeal to you who are constant Practicers and Attendants here Whether it be not a Notion altogether New And to me as it is a New Notion so it is very fine and seems impossible to be supported by any Reason but must produce very strange Absurdities It is not to me to be reconciled with any Reason of Law or Equity as far as I understand any thing of either For to say that a Deed is revocable because it relates to a Will is first to contradict the Nature and Essence of a Deed. For a Deed takes effect immediately upon the sealing and delivery and is impossible to be altered from what it is and has in it or to be revoked by him that made it But because it relates to a Will it shall be revocable as a Will is That I say is a meer sine-spun strange Notion not at all agreeable to Reason Next such a Construction and Strain as this in Equity must overthrow the Intention and Design of him that made the Deed. For when a Man has made a Will which is not consummate till his death and after that makes a Deed and limits the Estate in such a manner as it was disposed of by the Will What doth this Man mean but that those Estates which were or arise by the Will upon his decease shall have immediate Effect during his Life And whereas he thought with himself it might not be so convenient to leave his Estate wholly to depend upon a Will which might so easily be altered it was his Mind and Intention that it should be made more firm by a Deed which is more permanent Next it is a mighty Strain to make a Deed revocable as a Will for then you must first set up again that Will which was thereby revoked for you cannot imagine but that when a Deed is made though to confirm a Will the Estate limited thereby doth arise by the Deed and the Will is revoked by the Deed. So you set up a Will that is no Will in Law and that shall controul a subsequent Deed which destroyed that very Will which is strange and contrary to all Rules of Law and Reason There were some Cases quoted wherein a Deed shall controul a Will as Dyer 49. It is said If a Man makes a Feoffment to the use of his Will which was next at that time to the Charter of Feoffment that that Will is revocable notwithstanding there is an express Application in the Deed to that Will it self and so the Uses arise by the Deed not by the Will and yet though this Deed hath relation to the Will that Will may be revoked This indeed hath the Terms put in this Case but in Reason is no way applicable to it When a Man makes a Feoffment and annexes his Will thereto there the Design is that the Estate should arise not immediately upon the Feoffment but attend upon the Will But if a Man make a Deed of Feoffment and says it shall be to the use of such Persons and for such Estates as in his Will or as he shall give according to the Will there though the Will doth mention the Names and limit the Estates the Uses do not arise by the Will but by the Deed For though the Will be no part of the Deed yet when the Deed doth refer to the Will and the Will hath limited the Estate it is as much as if all the Limitations had been comprized in the Deed. And I take it that Deed is not revocable because it hath an immediate Effect and can be no otherwise revoked but according to a Power reserved in the Deed it self And that is Hussey's Case Moor 756. A Man makes a Will and he makes a Feoffment to the Uses mentioned in the Will tho the Will be revoked as sure it is yet it is a sufficient declaration of the Uses It was further urged for the support of this Notion what is said in Hobart in the Earl of Ormond's Case The Case is put a little short in the Book A Man suffers a common Recovery to the use of such Person and Persons and for such Estate and Estates as he should dispose of and to in his last Will. This was a Case in Ireland and before the Statute of Uses was made there and so we must look upon it in England as a Case before the 27 H. 8. and then there being a Feoffment made he remains Cestuy que use in Fee in the mean time for he hath a Power by Will to dispose of the Use according as is expressed in the Deed. Then he makes a Deed in his Life-time and giveth away the Inheritance of this Use and afterwards makes his Will Now here is a Deed that giveth the Inheritance of the Use away and here is a Will that doth controul and alter the Disposition of this Deed. This was the use that was made of this Case Now in answer to that Suppose it were so this Will is but an execution of that Power which proceeds from the Deed for when a Man makes a Feoffment for the use of such Persons and for such Estates as he shall limit by his Will It is not the Efficacy of the Will that disposeth of the Estate but it is by virtue of the Deed so that the Deed in his Life-time was no execution of the Power reserved in the first Deed which was only to do it by a Will But I must say this further to that Case of the Earl of Ormond That I do not take that Opinion of the two Judges Hobart and Dodderidge there delivered to be Law and there were other two Judges Mountague and Hutton that were of another Opinion and others were of their Mind and it did not come to a judicial Resolution And my Opinion is this That if a Man made such a Feoffment before or after the Statute of Uses he hath the Fee Simple of the use vested in him in the mean Time and therefore hath a Power to dispose it And if he doth by Deed in his Life-time dispose of it that is a good Disposition and the Will shall not controul it for he is as much Master of the whole Estate both before and since the Statute of Uses as if he had made a Feoffment in Fee to the use of himself And then an absolute disposition of this by Deed doth extinguish and destroy the Power If he from whom the Estate moved doth reserve a Power in any particular manner to limit any Estate or Estates by his Will the whole Fee-simple is in him and any Act he doth do to dispose of the Estate will hinder him from executing of that Power And for this I shall quote you but one Case and that is in Lea 39. Broad's Case a Fine is levied to the use of such Persons and for such Estates as the should limit and appoint by his last Will and so the Case comes home to this Case He after this covenants to stand seized

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

Deed that besides the confirming of the Will he did mainly design the settling of his Estate Then let us consider the differences in point of Limitation between the Deed and the Will First They say in the Deed There is an Estate limited to the Duke for Life which is not in the Will that is proper in a Deed but would not have been absurd in a Will which is not to take effect till after his death Then for that Variation in the Limitation to the Dutchess it is not material in point of Value but for duration of the Earl and it was a reasonable thing so to make it for since he did intend to charge his real Estate with great Legacies it had been impossible to have sold any part of it that had been under a Rent-Charge of 6000 l. a Year and therefore it limits Lands of that Value As for the Limitation of Norton Disney which indeed is to the advantage of my Lord of Bath and is the only variation from the Will which is so for with respect to the Essex and Nothern Estates my Lord has but a Remainder after failure of Issue in General but in this it is after failure of Issue Male But then it is to be considered that the Honour would fail upon the Duke's Death without Issue Male and he did intend and desire that the Honour of Duke of Albemarle should come to my Lord of Bath His Father had gone so far in it as to procure a promise of it under the Sign Manual by K. Charles the 2d And at the same time he had an Estate of 15000 l. a Year and then it became him well that such a part of the Estate should go with the Honour As to that Objection that thereby there was no provision made for Daughters it were indeed a very great one if indeed there were no provision at all for them But it means no more than that if he left no Sons there would be an ample provision out of the rest of his Estate for Daughters And so in effect it is upon the Marriage-Settlement and the Will of 87. So that if it be an Argument of Surprize as to the one it is the same as to the other Then for that provision that is made out of Rotherhith and Norton Disney for the third Son it must be admitted that as to my Lord Duke's mind in the matter it would be ineffectual but there can be nothing infer'd from thence but that there was a great neglect of looking into the Settlement But that will be no ground in Equity to relieve against this Deed for if it should be so how many Settlements must we set aside upon Mens setling that over which in part they had no Power of making such disposition because the persons concerned in drawing the Settlement did not take sufficient care in every Particular to pursue the Power he had who makes the Deed. Besides there is the same mistake in the Will of 87 in relation to Potheridge where the Barony for Mr. Monk was to be fixed it being by a Settlement in King Charles the first 's time so setled in Tail that it could not or was not legally to be disposed of by Will Indeed it was said that there were some Articles made with Pride about that matter to carry the Estate according as the Duke should direct But those Articles cannot answer the Objection for they were made three Months after the Will and then they were made with a wrong Person and so signify nothing It has been objected That this Deed pretends to be for securing the Legacies in the Will of 75 but defeats them That is a Mistake in the Objection for it confirms the Will certainly as to the Legacies and doth create a Trust for performing and paying them indeed by a subsequent Act the Will of 87 there may be an Alteration made but that is no Argument against this Settlement itself There was another Observation made and that was That the Power of Revocation was unreasonable especially back'd with such an unreasonable Covenant not to revoke But as to that it is to be considered what the Design of this Settlement was he had made his Will before but he thought himself unsafe under that Disposition he was under apprehension of being applied unto and importuned to dispose of his Estate otherwise than he had a mind it should go therefore he intended this Settlement as a Guard against any Surprize of that kind and that being his Intention if it had been only a general power of Revocation it had been no more than what any Will or subsequent Act done by him would have effected but that had not answered his meaning And so as to the last Covenant in the Deed which they call the Derogatory Clause whereby the Duke covenants not to revoke the Will otherwise than as aforesaid I take it that doth import no more but that as to the preceding part of the Deed he guards himself against Surprize as to the real Estate so he doth here as to the personal Estate And tho' it prove ineffectual at Law that is not material as to the Intention of the Duke The last Observation upon the Deed is the penning it which is an Objection that is to go through the whole Deed but this Objection goes further than the point for which it is alledged for if it prove any thing it proves it to be a false Deed. But for this I do not find it so much as suggested that this Deed was drawn by Sir William Jones my Lord of Bath indeed says that it was left to the Care and Conduct of Sir William Jones but as to what appears he was onely concerned in the Proviso for it is very good reason to believe when he says I approve of this Proviso he did not refer his Opinion to any other part of the Deed. And indeed any one that knew or remember him will think that he concerned himself with no other part but what he set his hand to the approbation of I have taken notice of these Observations as Arguments urged by the Counsel which taken altogether should induce their ground of Equity from a Surprize in obtaining this Deed but when they are severally considered they seem not to be of such weight as is contended for But if the Obligations had been more in number or of greater consequence yet let the Deed be never so ill drawn and the Mistake and Mis-recitals never so many and the differences of Limitations in the Deed from those in the Will never so many too yet if this Deed were really executed by the Party all this will not be a sufficient ground in Equity to set aside this Deed. And the Counsel for the Plaintiff were well aware of this and therefore they go to other Circumstances out of the Deed to shew this Surprize and as far as I can observe the Objections upon this point are these That there is no Proof