Joynt Creditors That there can be no division of the Joynt Estate whereby to charge any part thereof with the private debts of either party and till the Joynt debts are paid and till division be made of the Surplus both parties are alike interessed and every part of the said Joynt Estate that the Commissioners have no power by the Commission to Administer an Oath to the Plaintiffs for proof of their debts they claiming debts from the said Widdows only and the Commission is against Widdows and Berman Joyntly and not severally and therefore cannot admit of the Plaintiffs Creditors This Court declared That the Estate belonging to the Joynt Trade as also the debts due from the same ought to be divided into Moieties and that each Moiety of the Estate ought to be charged in the first place with a Moiety of the said Joint debts and if there be enough to pay all the debts belonging to the Joynt Trade with an Overplus then such Overplus ought to be applied to pay particular debts of each Partner but if sufficient shall not appear to pay all the Joynt debts and if either of the Partners shall pay more than a Moiety of the Joynt debts then such Partner is to come in before the said Commissioners and be admitted as a Creditor for what he shall so pay over and above his Moiety and decreed accordingly Charles Howard contra le Duke de Norfolk al' 34 Car. 2. fo 722. THe Plaintiff by his Bill seeks to have Execution of a Trust of a Term of 200 years of the Barony of Grostock The Case was this The Earl of Arundel the Duke of Norfolks Father by Lease and Release Perpetuities or Entailing a Term for years with Remainders over Anno 1647. setled the Barony of G. and other Lands to himself for life then to the Countess Elizabeth his Wife for life and after her decease there is a Term limited to the Lord Dorchester and other Trustees for 200 years under a Trust to be declared in a deed of the same date with the Release and the Limitation of the Inheritance after the Term of 200 years is first to Henry Howard now Duke of Norfolk and the Heirs Males of his Body then to Mr. Charles Howard the now Plaintiff Brother of the said Henry and so to all his Brothers Successively in Tail Male remainder over Then by the said other Deed the Earl declares the Trust of the Term of 200 years and that deed in the reciting part declares that it was intended the said Term should attend the Inheritance and the profits should go to such persons and in such manner as was therein after limited viz. to Henry Howard now Duke of Norfolk and the Heirs Males of his Body so long as Lord Thomas Lord Maltrevers Eldest Son of the said Earl of Arundell or any Issue Male of his Body should be living but in case he should die without Issue Male in the life-time of Henry Howard not leaving his Wife enseint with a Son or in case after the death of Thomas without Issue Male the Honour of the Earldom of Arundel should descend to Henry Howard then Henry Howard and his Heirs to be excluded of the Trust and then it should be to Charles the Plaintiff and the Heirs Males of his Body remainder in like manner to other Brothers After this the Contingency doth happen for Thomas Duke of Norfolk dies without Issue and the Earldom of Arundel as well as the Dukedom of Norfolk descended to Henry now Duke of Norfolk by Thomas his death without Issue presently upon this the Marquess of Dorchester the Surviving Trustee Assigns the Term to one Marriott he Assigns it to the now Duke of Norfolk and the Duke suffers a Recovery to the use of him and his Heirs and the Plaintiffs Bill is to have execution of the Trust of this Term to the use of himself and his Heirs Males of his Body The Defendants insist That by the Assignment by Marriott to my Lord Duke Henry the Term was Surrendred and quite gone that the Common Recovery which barred the remainders which the other Brothers had would also be a Bar to the Trust of this Term and that the trust of a Term to Henry and the Heirs Males of his Body until by the death of Thomas without Issue the Earldom should descend upon him and after that to Charles and the Heirs Males of his Body was a void Limitation of the remainder to Charles The Plaintiff insists Though the Term by the Survivor is gone and Merged in the Inheritance yet the Trust of that Term remains in Equity That this is not a Term that attends the Inheritance but it s a Term in gross and so not barred by the Recovery and that the Limitation of the remainder in Contingency is good in Law and Relief ought to be had in this Court The Lord Chancellor Nottingham the Case being of great Consequence calls the Judges to his Assistance viz. the Lord Chief Justice Pemberton the Lord Chief Justice North and the Lord Chief Baron Mountague and they made one single point in the case Whether this Contingent Trust of a Term limited to the Plaintiff Charles and the Heirs of his Body upon the dying of Thomas without Issue Male whereby the Honour did descend to Henry be good in point of Creation and Limitation for as for the Recovery if this be not a good Limitation in point of Creation the Recovery will do nothing so that supposeth it to go along with the Inheritance and if this take effect then it will suffer no prejudice by the Recovery And as for the Assignment by Marriott to the Duke if this Court decree it for the Plaintiff then it is a Breach of Trust and then he must answer for it and so must the Duke for it is a Surrender to a person who had notice of the Trust If for the Defendant then it is of no weight So that the whole rests upon the first single point viz. whether it be a good Limitation upon the Contingency to Charles or as they call it Springing Trust a springing Trust And the said three Judges were all of Opinion that it was a void Limitation and that it ought to be Decreed for the Defendant They said Term in gross and a Term attending the Inheritance the difference there is great difference as to the Limitation of Terms that are in gross and Terms that attend the Inheritance as to Terms in Gross they are not capable of Limitation to one after the death of another without Issue but in Termsattendant upon an Inheritance there may be such a Limitation if the Inheritance be so limited and not else Now the Term is capable of a Limitation to Henry and the Heirs Males of his Body and for want of such Issue to Charles and the Heirs Males of his Body because it hath an Inheritance to support it But now to put another limitation upon it that upon the
not found to be read tho' no Counterpart was sealed yet none of these by any of the Presidents have either been singly or altogether allowed as Causes to set aside a Deed in Equity He was of Opinion that the Deed doth confirm the Will of 1675. in the setling and assuring the Estate part on the Dutchess and part on the Earl and as to particular limitations the Duke might alter his Mind from the Will and do it according to the Deed. The Third thing they insist on by way of Surprize is That it was done contrary to the Dukes Intention Whereas the Defendants have proved that it was according to his Intention and the other side say not neither before nor after the making of the Deed For that there were several Wills made by Duke George and not a word of any Limitation of any Estate to the Earl of Bathe Which is answered by the other side That the Wills are in few words and thereby all given to Duke Christopher and not any provision made for any younger Son or Daughter neither in these Wills nor in the Will of 1675. is there any thing given to the Father of this Monck Another Objection That the Duke never intended any thing to Sir Walter Clergies for that he was fallen into his displeasure and what is given is a remote Remainder but there were Proofs of continued Kindness to the Earl of Bathe And the greatest proof that there was no Surprize was the presence of Sir William Jones at the execution of the Deed who was of great Ability and Integrity and would not be guilty of a surprizing and he was satisfied that there was nothing but fair dealing in the execution of the Deed. As to the Will of 1687. perhaps it might be intended not to give this Estate to the Earl and that there was great Advice taken on that Will But what was the meaning of the Duke in making the Will of 1687. if it must signifie nothing The truest Answer that hath been given is That he Advised whether a Will would revoke the Deed and when he understood that it would not but that he had put all out of his power except by a strict Revocation then he gratified the continued Importunities of his near Relations and endeavours by that to render himself easy so he conceived the Deed well executed and is pursuant to the VVill of 1675. and cannot be set aside on the point of Surprize The next point insisted on is Concealment and they insist on a Clause in the Earls Answer where the Duke sent for the Deed in Order to make a new Settlement The Will he might have Revoked without the Deed but as the Plaintiff saith the not doing of it was a Concealment and the Argument is good if the fact were true But it s not so for it doth not appear that he ever intended to Revoke the Deed and both the Will of 75. and the Deed of 81. were delivered into the Earls Hands just before the Duke went abroad and the Concealment was not from the Duke but the Dutchess and the Presidents Cited of Clare contra Com' Bedford and Raw contra Pott come not up to this Case The next point insisted on is Revocation The Will of 1687. say the Plaintiffs is a Revocation in Equity though there was not the Quality or Number of Witnesses described and limited in the Proviso It s no Revocation neither was it intended so the Duke wrote a Letter to the Earl that he had done him no wrong and he left the Keys with him and imployed the Earl in selling the Cockpitt and Albemarle House and the Duke continued in the same mind to Moâ—ck and Sir Walter Clargies and there seemed no reason why he should not be of the same mind as to the Earl and there was a great Provision made for the Dutchess by the Will and Deed but not a word of Mr. Monck in either but only in this last Will. Where there are two voluntary Conveyances he that hath the Estate by Law shall hold it Where a Party shall be relieved where there is a defect they shall be relieved where there is a defect they shall be relieved where there is a deceipt or falsity and the Presidents are that they have been relieved in such Cases where it is to pay Debts or to provide for Children several Presidents have been Cited as Price and Green Ferrers and Thannett Webb and Webb temp Eliz. Doctor Hamilton contra Maxwellin 1655. Bowman and Yates Wallis and Coate contra Gryme Thwaytes contra Deg Arundell contra Phillpott As for the Trust nothing was said by him of it for it cannot be presumed that there was any Resulting Trust for that was to undoe what he had done before The Defendants are in possession by a Verdict upon the Deed and there is no reason to disturbe them Lord Chief Justice Holt This Case depends on a Will of 1675. and a Deed of 1681. and a Will of 1687. and the question is whether the Will of 1687 doth Revoke the Deed of 1681. it being not pursuant to the power He was of the same Opinion with Baron Powel and Lord Chief Justice Treby The Deed is a good Deed and so all the Evidences and Circumstances relating to the Deed ought to be taken to be true viz. that Sir William Jones was advised with in the Draught and was present as a Witness and that the Will of 1687. is a good Will but not to be relieved against the Deed of 1681. which must be taken to be a good Deed and he reduced what he had to say to four Heads 1. Of the Frame and Manner of the Deed. 2. Whether on the Evidence the Deed were unduly obtained 3. Of the Circumstances and Conditions of the Persons 4. Of the Person of the Duke himself and the Circumstances he was in when he made his Will of 1687. for whether the Plaintiffs shall be relieved against the Deed is the Question As to the first It s said the Will of 75 and the Deed make but one Conveyance and that is fetcht from Law for at Law a Fine and Recovery and Deed to Lead the Uses are but one Conveyance So as to the first from the Contradictions and Misrecitals in the Deed which have been insisted on there is no Cause to relieve against the Deed. As to the second on the matter of obtaining the Deed he said he could not find any undue obtaining of the Deed but that Sir William Jones his Hand was in the Proviso of the said Deed and that the Deed was not executed by a Surprise for the Dukes Councel was present at the execution of the Deed and here is no fraud to set it aside As to the Case of Winn and Bodvile which has been Cited there was a great fraud and practise but there is no fraud or circumvention here but the Deed is fairly obtained and there is nothing but a presumptive Evidence against it which ought not
prejudicial to the King or his Government which the Affidavit doth not specifie and if that were yet no Writ doth regularly lie in this Case against a Lay-man to find Security as this Writ is but only against a Clergy-man neither is the Writ Indorsed as formally it ought to be Supersedeas and therefore ought to be superseded and several Cases were offered and Presidents produced on the behalf of the Defendants But the Plaintiff insisted The Causes of a Ne exeat Regnum that by the Affidavit of Sir John Read the Defendant conveying and making over his Estate to others standing out an Excommunication and absconding his person and giving out That he intends to go beyond the Seas the said Writ is well warranted and for Justification thereof several Cases and Presidents were urged and it appearing that the only matter which carries any countenance or pretence of irregular issuing the Writ that it ought to be for a Clergy-man to find Security and not for a Lay-man is an Opinion taken up in a Posthumous Work of the Lord Coke 3 Inst 179. being called his 3d Institutes contrary to the general Authorities Presidents and Practice of granting Writs of Ne exeat Regnum in former and later Times which are usual against a Lay-man to find Security as well as a Clergy-man or else there can be no Writ at all to be found in the Register against a Lay-man to find Security in any case Lay-men to find Security as well as Clergy-men upon a Ne exeat Regnum or any Ne exeat Regnum against a Lay man neither is there in the Register any such form of Indorsing the Writ as is suggested but what is inserted in the Register is but a Note of some Observer So that his Lordship with the Judges are of Opinion upon the whole Matter that there is no ground to grant a Supersedeas of the said Writ of Ne exeat Regnum but that the same was well granted and ought to stand and Ordered it accordingly Dixon contra Read 20 Car. 2. fo 46. 561. THe Bill is No relief against a Bond entred into to a Solicitor to pay 100 l. when a Verdict should be recovered That the Plaintiff being Sued by the Defendant Read in the Sheriffs Court in London upon a Bond of 200 l. for the payment of 100 l. to the said Defendant by the Plaintiff when the said Defendant being a Solicitor should recover a Verdict on the behalf of one Thrale upon which Bond though the Defendant was so far from being instrumental in getting any such Verdict that he acted for Thrale's Adversary yet the Defendant hath gotten a Verdict on the said Bond Whereupon the Plaintiff removed the Cause into the Mayor's Court and from thence into this Court by Certiorari and the Plaintiff according to proceedings in such cases proved his Suggestions Yet the Defendant without a Procedendo Procedendo hath removed the Proceedings back out of the Mayor's Court into the Sheriffs Court and hath there taken out Execution and taken the Plaintiffs Bail thereupon and levied 102 l. This Cause was heard by the Master of the Rolls who saw no cause in Equity to Relieve the Plaintiff against the Penalty and Interest of the said Bond. This Cause came to a Re hearing before the Lord Chancellor being assisted with the Lord Chief Justice Hales who were of Opinion with the Master of the Rolls and confirmed his Decree Smith contra Holman 20 Car. 2. fo 192. THat the Defendant caused the Plaintiffs Bail at Law to be Arrested soon after the Plaintiff and Defendant had joyned in a Commission for Examining of Witnesses which was for the same Matter here in question and also about two days before the Execution of the Commission the said Defendant caused the Plaintiff to be Arrested when he was preparing for the said Commission so that the Plaintiff could not execute the same The Plaintiff prays That the Defendant for such his Abuse Plaintiff two days before the Commission for Examination of Witnesses was arrested by the Defendant and in Execution ordered to be discharged and the Defendant to pay Costs and be at the charge of a New Commission being against the ancient Priviledge of this Court to Suitors that are in the management of their Causes in this Court may stand Committed and pay the Cost of the last Commission and damages sustained by the said Arrest The Defendant insisted he was ignorant of such Priviledge and that the Plaintiff was now in Execution This Court in favour of the Desendant spared the Commitment but ordered him to pay the Plaintiff Costs of the last Commission as also his costs and damages sustained by reason of the Arrest Imprisonment and Prosecution thereon and referred it to a Master of this Court to Tax and that the Plaintiff giving a new Judgment for the debt in question the Defendant shall at his the Defendants Charges presently release and discharge the said Plaintiff out of Execution and the Defendant to be at the charges of a New Commission and the Plaintiff to take an Injunction till Hearing of this Cause Wiseman contra Foster 20 Car. 2. fo 731. THe Plaintiffs Father George Brigges by Will devised to the Plaintiff Ann 500 l. for her Portion which was appointed to be paid to her at the Age of One and twenty years or day of Marriage and made the Defendant Dame Ann Foster his then Wife and his Son George his Executors and by a subsequent Clause in his Will declared That it should be in the power of his Executors to order and dispose of the Plaintiffs Portion according to their discretion to the use of the rest of the Children unless the Plaintiff should marry by the advice and consent of the Defendant Dame Ann and others who were Overseers of his Will or the greater part of them And the Defendants insist That the Plaintiff hath Married without such consent therefore ought to have but 250 l. Whereas the Plaintiff insists That the said Clause was intended only in terrorem and awe to the Plaintiff Ann to induce her to take heed how she married and not that she should lose any part of her Portion so as she married one who deserved the same which she hath done with the consent of the Major part of the Overseers The Defendants insist Portion to be paid on Marriage with consent of c. Some consent and some not yet decreed to be paid That the Plaintiff marrying as aforesaid ought to have but 250 l. as by the Memorandum in the Will and the rest to be distributed amongst the other Children of the Testator But the Plaintiff insists That in this case there was not by the Will any devise over to the said other Children This Court upon Reading the Proofs touching the approbation of the Major part of the Overseers and their consent to the Plaintiffs marriage decreed the Defendants to pay the Five
of the premisses were accrued to the said Plaintiffs but that by reason of the said Proviso and several Ambiguities in the said Deed it was doubtful to what parts the Plaintiffs Settlement with Proviso not to attempt the impeachment of it Court dirccted a Trial at Law and that the Trial should be no forfeiture the Heirs general were intitled unto so to be protected against the said Proviso and to have the partition of the Lands is the Bill His Lordship declared it was most fit that a Trial at Law be had touching the Plaintiffs Right and Title and that such Action to be brought shall not be taken or construed a breach of the Proviso aforesaid or forfeiture of the Plaintiffs Right and Title to the premisses Smith contra Sallett 24 Car. 2. fo 382. THe Bill is to have an Issue directed by this Court to try whether the Fines of the Copyholders due to the Lord of the Mannor were certain or arbitrary The Defendant insisted Fines of Copyholder whether certain or arbitrary it having been tried at Law the Court would not relieve the Plaintiff other than for the preservation of Witnesses That there had been several Trials already and Verdicts have passed for a Fine certain and particularly one in Ejectment before Mr. Justice Windham and another before the Lord Chief Justice Hales upon a Special Issue directed out of the Exchequer Whether the Fines were certain at 8 d. an Acre and 8 d. a Cottage or not And a Verdict passed on both Trials for a Fine certain This Court declared They could not relieve the Plaintiff in Equity other than for the preservation of Testimony and dismissed the Plaintiffs Bill Lewis contra Lewis al' 24 Car. 2. fo 664. This is on a Case stated viz. THat the Lord St. Will. John and his Trustees demised a Lease on the premisses for 99 years unto the Defendant Turner if the Plaintiff Alice then Wife of Dr. William Lewis and Theodore Lewis Son of the said Dr. Lewis and one Feilder or either of them should so long live That this Lease was made at the nomination of and in Trust for the said Dr. Lewis That after in July 1666. the Doctor made his Will and as to the premisses devised them to the said Alice for life and after her death then to the said Theodore Lewis to be disposed of as the said Doctor shall appoint them by his Will in writing or Deed and of his Will made the said Alice his Executrix That in March 1667. by a Declaration in writing to which the said Doctor and the Defendant Turner are parties and executed by them both the Trust of the premisses was thus declared viz. for the said Doctor for life afterwards for such person or persons as the said Doctor by his Will or Deed should appoint and in default then for the Executors or Administrators of the said Doctor That in July 1667. the Doctor died without making any other Will or Deed or other Appointmen for the disposing of the premisses That Alice by virtue of the said Will and Deed entred and possessed the premisses That it appears also in the Case Parol Declaration of ones Intent not good against a Declaration in writing some Proof was offered touching a Parol Declaration of the said Dr. Lewis his Intention that the Son Theodore should have the benefit of the said Lease but that being by Parol against a Declaration in writing the Court conceived it not material in the Case and that it is also in the Case that the said Theodore claimeth so much of the term as should be behind at the death of the said Alice and that the said Alice claims the whole term as Executrix to the said Dr. Lewis The Court at the first Hearing was assisted with the Mr. Justice Atkyns Trust of a term devised to J.S. and then to J. D. to be disposed of as the Testator should appoint by his Will or Writing He makes a Writing and declares it to himself for life and after to such persons as he should by Will or Deed appoint and for default of that to his Executors and made no other Will or Deed the Executor shall have it who inclined to be of Opinion for the said Theodore and that the said Defendant Turner the Trustee ought to execute the Trust for him But his Lordship differing in Opinion and having since advised upon the Case with Mr. Justice Windham and several other of the Judges who were all clear of Opinion That according to the Declaration in writing the Plaintiff Alice the Executrix is well intituled to the benefit of the said Lease This Court therefore doth decree That Turner the Trustee do execute the trust and convey and assign the said Lease and the remainder of the term therein to the Plaintiff Alice or whom she shall appoint Lance contra Norman 24 Car. 2. fo 233. THe Plaintiff Lance his Suit is Recognizance that the day before the Marriage of the Plaintiff and his Wife the said Plaintiffs Wife was perswaded to enter into a Recognizance of 2000 l. without defezance to the Defendant Norman being the Plaintiffs Wives Brother to which the Plaintiff was not privy or consented which Recognizance the Plaintiff seeks to have set aside and vacated The Defendant Norman insists That the Plaintiff was Suiter to his Sister designing to gain her Estate but she not likely to have Children intended the said Defendant Norman part of her Estate and upon that account gave the said Recognizance and at that time the said Norman was in the Country and no ways knowing of it nor had contrivance in it but the said Plaintiff proving unkind to his Wife and turned her out of doors and parted with her not making any provision for her This Defendant hath put the same in Suit The Plaintiff insisted that his said Wife voluntarily absented from him and took and conveyed awaygreat part of his Estate and hath acted as a most insolent and undutiful Wife and entred into the said Recognizance without his privity This Court being assisted with the Judges was satisfied that the said Recognizance was entred into the very day before Marriage without defezance or the Plaintiffs privity whereby to defraud the Plaintiff and one witness only deposed the Plaintiffs consent to the drawing the said Recognizance who hath an Assignment of the same to himself The Court decreed the said Recognizance to be set a side A Recognizance entred into by the Wife the day before Marriage set a side and a perpetual injunction and vacated on the Record thereof and a perpetual injunction is granted against it and this Court proposed on the said Plaintiffs Wives returning back all the Estate which she took and conveyed away that the Plaintiff do allow her 20 l. per Annum which was consented to by the Plaintiff for her separate maintainance Howard Vxor contra Hooker 2 Car. 2. fo 587. BIll is to set aside a
Cutler 30 Car. 2. fo 285. THe Testator deviseth Lands to be held by his Executors Will. Lands devised to be held by Executors till his Son attain 22 years Son dyes before 22 Executors decreed to hold the Lands till the said 22 years till the Testators Son attained 22 years of Age for maintenance of the Executrix and her Children that the said Testators Son dyed before 22 years of Age. This Court decreed the Executrix to hold the Lands against the next Heir until the said Sons Age of 22 years as if the said Son had lived to 22 years and the Plaintiffs debt on Bond to be paid by the next Heir or the reversion to lye liable and charged therewith Jolly contra Wills 30 Car. 2. fo 523. THat Roger Garland Elder Brother Will. Devise of Goods to J. S. for 11 years the remainder over J.S. decreed to deliver the Goods after the 11 years by Will did give unto John Wills the Defendants late Husband the use of all and singular the Goods Plate c. whatsoever then in his House for Term of 11 years from his death and after the 11 years expired he gave the same to his two Nephews Robert and Roger Garland and to his Niece Elizabeth the Plaintiff to be equally divided amongst them and after the 11 years the said Wills was to deliver them to the Plaintiff The Defendant Wills insists that by the bequest of the said Goods for the 11 years she and her Husband to whom she is Executrix are well intituled to the property of them and that the Devisour is void in Law and Equity This Court decreed the Defendants Will to deliver the goods to the Plaintiffs to be divided according to the Will the said 11 years being expired German contra Dom Colston 30 Car. 2. fo 741. THis Court decreed Legatees to refund to make up Assets that in case hereafter any Debt of Sir Joseph Colston should be discovered and recovered against his Executors the Legatees of Sir Joseph Colston are to refund in proportion what they have received for or towards their Legacies to make up Assets for satisfaction thereof Cotton contra Cotton 30 Car. 2. fo 71. 282. THat Nicholas Cotton being seized in Fee of Copyhold Devise and Free hold Lands in Middlesex and Surry of 500 l. per Annum in 1676. dyed without Issue wherebythe same descended to the Plaintiff as Couzen and Heir to the said Nicholas but the Defendant Katherine Cotton pretends that the said Nicholas Cotton made his Will in Writing 25 years since viz. in 1650. having first surrendred the said Copyhold Land to the use of his Will and bequeathed the same to the said Defendant Mrs. Katherine Cotton his Relict and her Heirs but if such Will were the said Nicholas purchased some Lands since which descended to the Plaintiff and that the said Nicholas a little before his death contracted with Sir Thomas Lee and his Trustees for certain Copyhold and other Lands in Sunbury and was to pay 1110 for the same and paid most of the Mony in his Life-time and had possession The Defendant Mrs. Cotton insists that Nicholas Cotton her late Husband deposited in the Hands of the said Sir Thomas Lee or his Trustees 600 l. designing to purchase the said Land in Sunbury but her said Husband Cotton was to have interest for the said Mony and he only rented the said Sunbury Lands and not purchased them because a good Title could not appear but insist that after the death of her Husband she purchased the premisses and paid 320 l more then the 600 l. paid into the said Sir Thomas Lee's Hands and that her Husband by the said Will devised to her all his Real and Personal Estate and made her Executrix This Cause being now heard by Mr. Articles for a purchase and 600 l. paid but interest was paid for it till the Conveyance executed contractor dyes before any conveyance the 600 l. was part of his personal Estate Justice Windham who on reading the Articles between the said Nicholas Cotton and the said Sir Thomas Lee whereby the said Nicholas Contracted with him for the purchase of his Free and Copyhold Lands in Sunbury in Fee simple for 920 l. is of Opinion that the said Nicholas dyed before any Conveyance made by the said Sir Thomas Lee of the said premisses to the said Nicholas and the said Sir Thomas paying Interest for the said 600 l. and the said Nicholas paying Rent for the said premises the said 600 l. at the death of the said Nicholas was part of his personal Estate and as to that 600 l. could not relieve the Plaintiff but difmist the Bill And as to the Morgage made to Perkins by the said Nicholas and the Defendant his Relict it appearing that part of the Morgaged Lands was before that Morgage made Equity of redemption to whom belongeth setled on the said Nicholas and Katherine in Joynture or otherwise so as the same came to her as Survivor this Court is of Opinion that the Equity of Redemption belongs to her as survivor and not to the Plaintiff But as for the other part of the Mortgaged premisses and other matters in the Plaintiffs Bill for which he seeks relief as Heir The question being whether any republication were of the said Nicholas his Will Republication of a Will and whether the same Lands do belong to the Plaintiff as Heir or to the Defendant Katherine as Devisee by force of the said Will. This Court referred that point to a Tryal at Law upon this Issue whether the said Nichelas Cotton did by his said Will devise the said Lands in Shepperton in the Defendants answer mentioned to be purchased by the said Nicholas Cotton of one Rowsell in Fee in 1659. to the said Katherine or not A Tryal at Law having been had upon the point aforesaid a Special Verdict was by the Lord Chief Justice North's direction sound Lands decreed to the Devisee and on a Solemn Argument before all the Judges of the Common Pleas they unanimously gave Judgment for the Defendant that the Lands in question did belong to the Defendant Katherine as Devisee by the said Will. This Court confirmed the Judges Opinion Civil contra Rich 30 Car. 2. fo 338. THat Sir Edwin Rich made his Will whereby he after some Legacies gives and Bequeaths all the residue of his Estate both real and personal to Sir Charles Rich his Heirs and Assigns for ever and maks him Executor of his Will and in his Will says he left his Estate as aforesaid in Trust with him wherewith to reward his Children and Grand-children according to their demerit This Court declared A general Trust in a Will for Children and not a fixed Trust to create a certainty of right That as to Sir Edwins Estate taking the words of the Will of the said Sir Edwin as they were they could amount to no more than a general Trust in Sir
consented and agreed to by the Relict and Executrix and so decreed at the former hearing This Court declared Devise of a Personal Estate in Remainder after the death of J.S. is a void Devise and Vests wholy in J.S. she being Executrix That the Devise of the personal Estate to the Plaintiff in Remainder was a void Devise and the said Estate to the Testator immediately thereupon did Attach and vest in the said Alice his Relict and Executrix and the Defendant as her Executor was and is well intituled thereto and decreed accordingly Bredhust contra Richardson 31 Car. 2 fo 695. THat Samuel Russell by his Will gave to his three Daughters Sarah Christian and Elizabeth 540 l. to be divided amongst them viz. For each of them in particular 180 l. but if any one or two of them 540 l. To be divided amongst three Daughters and if one or two dyes without Issue the Daughters to Inherit each other one Marries the Plaintiff and dyes Sans Issue the Plaintiff is intituled to the 180 l. as Administrator to his Wife should dye without leaving a Child that the Daughters should Inherit one anothers Goods Monies Lands and Chattels which the deceased should leave behind them and that the Plaintiff intermarried with the said Elizabeth and that she died without leaving a Child before payment of the said 180 l. The Plaintiff insists That he as Administrator to the said Elizabeh his Wife is intituled to the said 180 l. and her share of the said Goods The Defendant insists That by the words and true intent of the Testator and the said Will the same doth not belong to the Plaintiff but came or in Equity belongs to the Defendants as Surviving Sisters This Court declared the Plaintiff is well intituled to the said 180 l. and decreed accordingly Turner contra Turner 31 Car. 2. fo 102. THat the Plaintiffs Father lent to Ayloff 700 l. and 200 l. at another time for which Ayloff Mortgaged Lands to the Plaintiffs Father and his Heirs with proviso that on payment of 600 l. to the said Plaintiff Father or Heirs then the premisses to be reconveyed to Ayloff that the Plaintiff is Executor to his Father and Brothers and so claims the Mortgages as vesting in the Executors of his Father and not in his Heirs The Defendant being the Son and Heir of the Plaintiffs eldest Brother deceased and Grandson and Heir to the said Plaintiff's Father insists That the Plaintiff and Defendant and others who claimed several shares and parts of the Plaintiffs Fathers personal Estate agreed to a Division thereof amongst themselves and a Division was made and Releases given of each ones demands in Law or Equity to the said Estate and the Plaintiff in particular released and the said Ayloff's Mortgage with the Mony due thereon with other things was set out and allotted to the Defendant by consent of all the parties and received by the Defendant in part of his share and the Plaintiff accounted to the Defendant for the profits of the said Ayloffs Mortgaged premisses received by him and afterwards in 1664 the Defendant had a Decree for the Mortgage Mony against Ayloffs Executor and received the same to which proceedings the Plaintiff was privy and the Defendant says it is unreasonable that the Plaintiff should now make a demand to the said Mortgage to unsetle matters so setled by his own consent but the Plaintiff insists he looked on the premisses at that time to come to the Defendant as Heir and knew not his own Titile thereto and the shares set out came but to 250 l. apiece and Ayloffs Mortgage was worth 800 l. This Court is of Opinion The Heir is decreed to have a right to a Mortgage in Fee and not the Executor that the Plaintiff ought to be relieved and had an undoubted Right to the said Mortgaged premisses and decreed the Defendant to repay all the Mony received by him thereon to the Plaintiff Bois contra Marsh 31 Car. 2. Land Legatees and Mony Legatees decreed to abate in proportion notwithstanding an Agreement to the contrary fo 441. THis Court declared That all the Legatees both Land Legatees and Mony Legatees ought to abate in propotion notwithstanding the Agreement to the contrary and that the said Agreement be set aside Audley contra Dom ' Audley 31 Car. 2. fo 848. THe Bill is to set aside a Lease made by Sir Henry Audley the Plaintiffs Father Power to make Leases if well pursued to the Defendants as Trustees for the Defendant the Lady Audley for 99 years if Henry Francis and Ann Audley Children of Sir Henry by the Defendant the Lady Audley should so long live paying yearly so much Rent as amounts to two parts in three of the yearly Value of the said Houses according to the best improved Value But the Plaintiff insists The said Lease is not made pursuant to the power reserved to the said Henry by a Deed of Settlement made by one Packington in 4 Car. 1. in Consideration of a Marriage between the said Sir Henry and Ann one of the said Packingtons Daughters and Coheirs by which it was declared That the benefit of such power in the said Sir Henry to make Leases was to be for the younger Children of the said Sir Henry by the said Ann his first Wife and the said Lease was not well gained from Sir Henry The Defendant insisted it was made pursuant to the power which was That Sir Henry should have power to make Leases for a provision of any thing he should have or otherwise as he should direct Which Matter was referred to the Lord Chief Justice Hales who declared the power good and that Sir Henry had pursued that power The Plaintiff insisted That the Rent reserved is altogether uncertain and lies only in Averment and that if the Value averred by the Plaintiff should in the least be disproved the Plaintiff would be Nonsuited in any Action And so insisted That it was proper for this Court to fix and establish that for a standing Rent which can be made out to have been two parts of the best improved Value at the time of making the said Lease and that the Rent so to be ascertained the Defendant might Covenant for constant payment thereof This Court on perusal of the said Lease and power and of the Lord Hales Opinion declared the said Lease to be good and sufficient and that unless proof be made of a greater value than the Sum of 290 l. Two parts in three of the improved value reserved as a Rent by a power the constant payment of such a Sum at the time of making the said Lease decreed to be paid whether the premisses rise or fall which hath been constantly paid by the Defendant the Lady Audley and accepted of by the Plaintiff that the said Sum must be taken as two parts of the full value of the premisses at the time of making the said Lease which or the greater
dying of Thomas without Issue whereby the Earldom shall descend this shall go over to Charles that cannot be for it hath no Freehold to support it and so it s a Term in gross further there cannot by the Rules of Law or Equity be a Remainder for years of a Term limited after an Estate Tail neither directly nor upon Contingency as in Burges's Case but the Law will allow a remainder directly upon an Estate for life so likewise upon a Contingency if that were to happen during the Continuance of the particular Estate But this case is a step further and not to be allowed they relied chiefly upon Child and Bayles Case which was put thus by Chief Baron Mountague a Devise by A. of a Term to William his Eldest Son and his Assigns and if he die without Issue then to Thomas his youngest Son It was Judged in the Exchequer Chamber to be a void remainder because thereby a perpetuity would ensue though it was argued in that case that it was given upon a Contingency to the younger Son which would soon be Determined and end in a short time Chief Baron Mountague put this for Law a Term may be limited to one and the Heirs Males of his Body upon a Contingency to happen first with Limitation over if that Contingency do not happen it is a good Limitation as if a Term be limited to the Wife for Life and then to the Eldest Son if he over-live his Mother and the Heirs Males of his Body the remainder over to a younger Son if the Eldest Son dye in the life of the Mother the Limitation to the second Son may be good but if there be an Instant Estate Tail created of a Term tho there be a Contingency as to the expectation of him in remainder yet this is such a Total Disposition of a Term as after which no Limitation of a Term can be and so the Judges were of Opinion that the Plaintiff had no Right to the Term but the decree ought to be for the Defendant The Lord Chancellor Nottingham differed from the Judges and Decreed for the Plaintiff He put some steps or Preliminaries which he agreed with them and which were clear 1. That the Term in question though it were attendant on the Inheritance at first yet upon the hapning of the Contingency it s become a Term in gross 2. That the Trust of a Term in gross can be limited no otherwise in Equity than the Estate of a Term in gross can be limited in Law 3. The legal Estate of a Term for years whether it be a long or a short Term cannot be limited to any Man in Tail with the remainder over to another after his death without Issue this is a direct perpetuity 4. If a Term be limited to a Man and his Issue and if that Issue die without Issue the remainder over the Issue of that Issue takes no Estate and yet because the remainder over cannot take place till the Issue of that Issue fail that remainder is void too Reeves Case 5. If a Term be limited to a Man for his life and after to his First Second and Third Son in Tail Successively and for default of such Issue the remainder over though the Contingency never happen yet the remainder is void though there were never a Son born to him that looks like a perpetuity Sir William Buckhursts Case 6. One Case more and that is Burgesss Case A Term is limited to one for life with Contingent remainders to his Sons in Tail with remainder over to his Daughter though he had no Son yet because it was foreign and distant to expect a remainder after the death of a Son to be born without Issue that having a prospect of a perpetuity was adjudged void 7. If a Term be Devised or Trust of a Term limited to one for life with twenty remainders for life Successively and all the Persons in Esse at the time of such limitation these are all good remainders 8. A Term is Devised to one for 18. years after to C. his Eldest Son for life and then to the Eldest Issue Male of C. for life though C. had not any Issue Male at the time of the Devise or death of the Devisor but before the death of C. it s good being a Contingency that would speedily be worn out Cotton and Heaths Case for there may be a Possibility upon a Possibility and a Contingency upon a Contingency and in truth every Executory devise is so and therefore the contrary Rule given by Lord Popham in the Rector of Chedingtons Case is not Reason These things were agreed by all But the Point is The Trust of a term for 200 years is limited to Henry in Tail provided if Thomas die without Issue in the life of Henry so that the Earldom shall descend upon Henry then to go to Charles in Tail and whether this be a Limitation to Charles in Tail is the Question My Lord Chancellor conceived it a good Limitation as a springing Trust to arise upon a Contingency and which is not of a remote or long Consideration As for the Legal Reasons of this Opinion they were these 1. Many Men have no Estates but what consist in Leases for years Now it would be absurd to say That he who has no other Estate than what consists in Leases for years should be uncapable to provide for the Contingencies of his own Family though they are directly in his immediate prospect he shall not make provisions for Wife and Children upon Marriage 2. It was the Opinion of the Lord Chief Justice Pemberton That had it been thus Penned it had been good If Thomas die without Issue Male living Henry so that the Earldom descend upon Henry then the 200 years limited to him and his Issue shall cease but then a new Term of 200 years shall arise and be limited to the same Trustees for the benefit of Charles in Tail Now what difference is there why a man may not raise a new springing Trust upon the same Term as well as a new springing Term upon the same Trust It is true in 6 Ed. 6. in the time of Lord Chancellor Rich all the Judges delivered their Opinion If a Term of years be devised to one provided if Devisee die living I. S. then to go to I. S. is absolutely void But in 19 Eliz. Dier fo 277 328. it was held by the Judges to be a good Remainder Executory Remainder and that was the first time that an Executory Remainder of a Term was held to be good As for Child and Bayles Case the Case is truly Reported by Crook A Term of 70 years is devised to Dorothy for life then to William and his Assigns all the rest of the Term provided that if William die without Issue living at the time of his death then to Thomas which is in effect the present Case but there was more in it William had the whole Term to him and his
or any Estate therein contained or to dispose of the said Honours Manours and Lands in any other sort or to any other Person or Persons and his or their Heirs or for any other purposes and the same his Mind Intent and purpose should signifie and declare in Writing under his Hand and Seal in the presence of six Credible Witnesses three whereof to be Peers of this Realm and should pay to his Trustees or any of them the Sum of Six pence with intent or purpose to frustrate or make void the said Indentures That then and not otherwise and immediately after such Signification Declaration and payment or tender of payment of 6 d. as aforesaid the said Use and Uses Estate and Estates Trusts Confidence Intents and Purposes and all and so much of the premisses whereof the Duke should make such Signification or Determination should cease Determin and be utterly void to all Intents Construction and Purposes whatsoever and that then and from thenceforth it should and might be lawful for Duke by such Writing or any other Deed or Writing Subscribed Sealed and Testified as aforesaid to declare new or other Use or Uses Trust or Trusts of all or so much of the premisses whereof the Duke should make any such Signification or Declaration or otherwise to dispose of the premisses or any part thereof at his Free Will and Pleasure any thing in the Deed to the contrary notwithstanding And for the further prevention of the mischief and Inconveniences that might attend any future or suddain Surreptitious Will Covenant which might at any time defeat his Recited Will which he declares to have made upon Mature Deliberation Covenants for himself his Heirs Executors and Administrators with the Duke of New-castle and his Trustees that he would not Revoke Annul or Discharge the said Will or any the Legacies thereby devised unless by some instrument Sealed and Executed in the presence of many and such Witnesses as are in the said Proviso specified declared and described for Credible Witnesses within the said Proviso according to the Intention Literal Sense and true meaning of the Duke expressed in the said Proviso He denies the said Deed was obtained by Surprise but that the Duke executed the same in the presence of many Credible Witnesses and that the Duke left the Deed and Will in his keeping And as to so much of the Bill as requires the Defendant to give an account of what part of the said Dukes Personal Estate came to the Defendants Hands he is Advised by the Rules of this Honourable Court that he is not Compellable to Answer thereunto for that it appears by the Plaintiffs Bill that at the time of the Exhibiting thereof the Plaintiffs were not intituled to make such demand or to have such account it thereby appearing of their own shewing that they have not proved the said Will of 87. but that the same was and still is under Controversie undetermined in the Prerogative Court whereof or as to that part of the Bill he demurs As to the Objection That it was a Concealed Will and Deed the Defendants insist that it was done silently but the Duke would have it kept Secret that he might be free from Trouble and Importunity And they insist That as to the last Will of 85. That the Duke Advised with Councel to know whether a Will made after the Settlement would avoid or impeach the Settlement was answered that it would not and that Proviso must be strictly pursued whereupon he was well satisfied and that the said Deed ought to be supported and not set aside in Equity being made upon such Meâ—â—torious Consideration of Blood Merit c. The Plaintiffs insist That the said Deed if any such being a Voluntary Settlement only that the Will of 87. is a good Revocation thereof in a Court of Equity So that the great Question was if the said Deed it being found to be valid at a Trial at Law is Revoked by the said last Will according to Equitable Intention or Construction This Cause having been Debated and Argued several times by Learned Councel and afterwards by three Judges viz. my Lord Chief Justice Holt the Lord Chief Justice Treby and Mr. Baron Powell it was agreed by them that the Deed was a good Deed well executed and not Revoked by the Will of 1687. The Lord Chief Justice Treby's Argument in short was thus In 1675. the Duke made his Will and declares in respect that the Earl of Bathe was his Kinsman and had done many Kindnesses to him and his Family the Earl should have the greatest part of his Estate and gives several Legacies to one Monck and then he makes a Deed of Settlement in 1681. tho' the Limitations by the one and the other differ but it is not made to revoke but to confirm the Will Both the Will of 1675. and Deed of 1681. do agree in giving the greatest part of the Estate to the Earl of Bathe but the Proviso in the Deed makes the dispute and then there is a Will of 1687. wherein a larger Estate is given to the Dutchess and Colonel Monck c. and desires the Honour of Potheridge may be established on the Moncks The Plaintiffs Bill is to establish the Will of 1687. and set aside the Deed of 1681. and Will of 1675. And the Deed on the Hearing of the Cause was directed to be tried and a Verdict for the Defendant and the Plaintiff hath acquiesced under it and so this Deed must be taken as a good Deed and Conveyance without any suspicion for the Right was tried and the whole Contents tried and if it were good at Law whether there be cause to set it aside in Equity is the Question He was of Opinion That the Deed was a good Deed and ought not to be impeached in this Court The Plaintiffs Arguments against the Deed are 1. Surprize 2. Concealment 3. That the Will of 1687. is a Revocation in Equity 4. That there is a Trust As to the Surprize He observed they did not make use of the word Fraud in gaining the Deed but that it was something put upon the Duke for want of deliberation He said he was not satisfied that there was any Surprize on the Duke for he was not languishing at that time under any Sickness but it was done and executed in good Company and after dinner with great Consideration both before and at that time They pretend a want of Circumstances in the execution whereas Sir William Jones was advised with before the Deed sealed and present at the time of the sealing Several other Circumstances were insisted on by the Plaintiffs but none are sufficient to set aside the Deed. The Deed of 1681. and the Will of 1675. are not inconsistent tho' they differ in the limitation of the Estate But by both the greatest part of the Estate is given to the Earl of Bathe Tho' they could not find Instructions for drawing the Deed tho' the Deed was
the same that she shall release the 2000 l. per Annum within Three years after his death or else that Devise to be void The Remainder of his Lands in Berks to Sir Walter Clergyes pur vie and after in Tail Male Remainder to his Cousin Henry Monk in Tail Male Remainder to his own Right Heirs To Bevile Greenvile Son to the Earl of Bath his Freehold Lands in Surrey and Southampton for life and then in Tail Male Remainder to his Cousin Tho. Monck pur vie and then in Tail Male Remainder to his Cousin Henry Monck in Tail Male Remainder to his own right Heirs His Lands in Devon to Colonel Thomas Monck for life and then in Tail Male Remainder to his Cousin Henry Monck in Tail Male remainder to his own right Heirs All his Lands in Ireland to his Cousin Henry Monck in Tail Male with Remainder to his own right Heirs Provided That if he have any Issue all devises of any Sums of Mony except for his Funeral his Father's Monument Alms-houses and Legacies to his Executors shall be void and if he leave any Issue the premisses devised to Sir Walter Clergyes Mr. Greenvile Thomas and Henry Monck and their Issue shall go to his Issue viz. to his Sons successively in Tail Male if Daughters in Tail with Remainders to the said persons as before Provided If he leave Issue Male he deviseth to his Wife as an Additional Joynture to her Rent charge Lands in Devon and Essex for her life and makes the Dutchess during her life and in case of her death the Dutchess of Newcastle Guardians of his Children he shall have And in case it happen that Colonel Thomas Monck or any Heirs males of his Body shall live to come and be in possession of the premisses devised to him he desires they will live at Potheridge the Ancient Seat of the Family and desires his Majesty to grant them the Title of Baron Monck of Potheridge that it may remain in the Family in Memory of his Father and himself and his Service his Father had the Honour to do the Crown in the Restauration and makes the Duke of Newcastle Lord Cheney Jarvis Peirpoint Sir Walter Clergyes Sir Thomas Stringer Henry Pollexfen Esq and others Executors That the Duke gave direction to Henry Pollexfen Esq to make this Will and when drawn was fully approved of by the Duke upon mature deliberation Which Will being in Three parts he carefully lock'd up and after leaving Two parts of his Will to two persons and kept the Third he went to Jamaica That the Duke when in Jamaica heard Colonel Thomas Monck was dead in Holland sent to the Earl of Bathe Sir Tho. Siringer and others to send over for Chripher Monck the Colonels eldest Son to Educate him so as to fit him to bear the Character of one to whom he intended the greatest part of his Estate if he died without Issue In September 1688. the Duke sickned in Jamaica and there again published his said Will and declared that if he died the Box and Will should be delivered to the Dutchess and died in October following That the Dutchess at her Return from Jamaica found that the Earl of Bathe set up another Will dated 3. Aug. 1675. whereby the Remainder of the greatest part of the Estate was given to the Earl of Bathe and his Heirs and likewise a Settlement by way of Lease and Release in corroboration of that Will by which he seeks to avoid and frustrate the Will of 1687. That the Duke sent to the Earl of Bathe for the Will of 1675. if any such to have it delivered to him that he might make another Will That the Will of 1687. was Sealed at Sir Robert Claytons the same day after other Writings had been by him sealed to the Lord Chancellor Jeffreys of some Lands sold to him and that the Dutchess nor any of her Relations ever knew or heard of the said Deeds till after the Dukes death nor known to Sir Thomas Stringer who was the Dukes standing Councel and the Plaintiffs farther insist if there were such Deed yet it ought not to avoid or impeach the said last Will though the power of Revoking the same was not literally pursued yet the same in Equity ought to be taken as a Revocation and the rather for that at the making of the Will the Duke remained owner of the Estate and he lookt upon himself so to be for that he had since the said pretended Deeds sold some part of the Estate to Chancellor Jefferies without any Revocation and the Earl of Bath paid no valuable Consideration and that he ought to be protected in the enjoyment of the personal Estate and the Specifick Legacies devised to her in the Will of 1687. tho' the Will of 75. if any such be was intended by the Duke principally to hinder the discent to his next Heir and the Deeds if such there be were for the same purpose and that tho' the Deed recites to confirm the last Will of 75. yet does in several places controul it and alter it whereby and by the extraordinary strange and unprecedented Declarations Provisoes and Covenants therein the Plaintiff believes the Deeds were never executed by the Duke or if so that he was surprised therein and pray Relief in the premisses To this the Defendant makes Answer Answer and sets forth the Will of 1675. whereby the greatest part of the whole Estate was given to the Earl and his Heirs and sets forth the Considerations of his so doing as Antient Kindred and Esteem between Duke George and the Earl of Bath and several Services and good Offices that he had done the Family and likewise sets forth that being well satisfied with such his disposition of his Estate and finding that he had been often importuned to alter the same and fearing lest the repeated Practises and Arts attempted against such his Disposition might some time or other surprise him into a Compliance Consulted with Sir William Jones and other his Councel how to Obviate such practises and to settle his Estate in such manner as that it might not be avoided although for his ease he should at any time seem to yield to the Sollicitations of his near Relations whereupon in Anno 1681. the Duke makes a Settlement wherein he begins That for the assuring of the Honour Manours c. upon a Person of Honour c. and for the Corroborating and Confirming the said Will of 75. and to the end that no pretended last Will should be set up by any Person whatsoever and for the Natural Affection that he beareth to the Earl of Bath c. grants by Lease and Release several Mannors Lands and Tenements c. some in Possession and some in Remainder upon the Earl of Bath in Fee and so to Walter Clergies c. in which Deed there was this Proviso Proviso That if the Duke shall at any time during his life be minded to make void the said Indenture