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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

THE ARGUMENTS OF THE LORD-KEEPER THE TWO Lords Chief Justices AND Mr. Baron Powell When They Gave JUDGMENT FOR THE Earl of BATH Die Martis 12 Decemb. 1693. In the Middle-Temple Hall Com. Bathon adv Com. Mountague at al. THIS Day being appointed by the Lord Keeper to hear the Opinions of the two Chief Justices and Mr. Baron Powell who assisted at the hearing of this Cause and to deliver his Lordship 's own Judgment therein Mr. Attorney General moved on the Behalf of the Earl of Mountague c. for the Judgment of the Court and Mr. Baron Powell delivered his Opinion first Mr. Baron Powell The Question in this Case is Whether there be any Ground in Equity to set aside a Deed of Release made in July 1681. for the Settlement of the late Duke of Albemarle's Estate by which my Lord of Bath claims The Validity of this Deed hath been tried at Law upon an Ejectment in the Court of Kings-Bench by Direction of this Court where the Title has been found for the Earl of Bath by the Strength of this Deed so that it must be agreed my Lord of Bath hath a good Title at Law because the Verdict hath found it so and all Parties concerned have hitherto acquiesced under this Verdict This Case comes now back upon the Equity reserved and it is only now to be considered what Matters of Equity have been offered to avoid this Title thus found at Law And those I think may be reduced to five Heads First That this Deed was obtained by Surprize and Circumvention Secondly That it was a concealed and a forgotten Deed. Thirdly That this is a Deed attendant upon a Will and so revocable in its own Nature although it had no Power of Revocation in it Fourthly That there is an implied Trust in this Deed that the Duke might have charged the Estate to the full Value and consequently might well dispose of it in Equity And Fifthly That the great Solemnity and Deliberation used about making the last Will and the publishing that Will do amount to a Revocation in Equity notwithstanding that the Circumstances of the Power are not strictly pursued I am of Opinion in this Case that this Deed having been affirmed by a Verdict upon a Solemn Trial at the Bar at Law none of these Matters are sufficient for to ground a Decree in a Court of Equity to set aside this Deed and I shall give you my Reasons for this Opinion in the same Order I mentioned those Heads in with particular Answers to the particular Objections under each Head 1. It is said this is a Deed that was obtained by Surprize and Circumvention Now I perceive this word Surprize is of a very large and general Extent They say if the Deed be not read to or by the Party that is a Surprize Nay the Mistake of a Counsel that draws the Deed either in Misrecitals or other things that is a Surprize of the Counsel and the Surprize of the Counsel must be interpreted the Surprize of the Client These things have been urged in this Case and I thought fit to mention them for the introducing my Reason against this Head of Argument and it is this That if these things be sufficient to let in a Court of Equity to set aside Deeds found by Verdict to be good in Law then no Man's Property can be safe I hardly know any Surprize that should be sufficient to set aside a Deed after a Verdict unless it be mixed with Fraud and that expresly proved and I know not of any such proved in this Case It is true Duke George by his Will and the Settlement made upon his Son at his Marriage takes no notice of or makes any Provision for the Earl of Bath but that I take it is not to be regarded as any way material at all because he takes no notice in either of them of any Body else but him that was his Heir But I must observe here by the way that there was not only a very near Relation between Duke George and the Earl of Bath but a very intimate Friendship cultivated by mutual Offices of Kindness between them to his Death And I must mention one Particular because to me it seems a clear Answer to this Objection that is His making no Provision for the Earl in the Will or Settlement might be the Occasion why Duke George did make such ●n earnest Application to King Charles the Second that upon Failure of his Issue Male his Majesty would please to bestow the Dukedom upon the Earl and annex Theobalds to it which would then revert to the Crown And that King did often promise he would and afterwards did it solemnly under the Sign Manual But then it is said that after this Duke Christopher made his Will and therein there is no notice taken of any such Disposition of his Estate to the Earl of Bath but that is not I think to be regarded neither because that was a Will only of his Personal Estate and made when he was under Age and could not dispose of his Real Estate Then come we to the Year 1675. when the Will was made to which this Deed has some Relation and by that Will Duke Christopher doth settle a great Part of his Estate upon Failure of Issue of his own Body upon my Lord of Bath There is no Pretence of any Surprize upon the Duke when he made this Will and it is plain then he had an Intention that my Lord of Bath should have a great Share in his Estate if he died without Issue Now then it is to be considered what there is of Proof in this Case of any thing that might be a Ground to conceive why he should alter this Intention between the Years of 1675 and 1681 when this Deed was made There is no Proof of any Misunderstanding between the Duke and the Earl in that Interval but on the contrary that there was a continual Friendship and Intercourse of Kindness between them all the while as doth appear by a continual Succession of Letters and other Correspondences passing between them in those Years one of which I cannot chuse but take notice of because of the Date of it to wit in June 1681. upon my Lord Lansdown's Intention to travel wherein the Duke takes notice of the Interest he had in my Lord of Bath's Family and particularly in his eldest Son as the greatest next to that of the Earl himself And I say I mention this Letter because of the Date that it is so near the very Date of the Deed that it is possible the Date was then made because it was within a Month after that Letter sealed and executed therefore it might well be referr'd to in it Next this appears to be a Deed drawn by the Duke of Albemarle's own Counsel Sir Thomas Stringer for it is proved the Paper-Draught is all of his Son's Hand-writing except the first and last Sheet and all of it interlined

Respect for him than to dispute such trivial Matters and for any Leases or Contracts they come within the Rule of Purchases and so the Consideration would preserve them Then they say Here is no Monument for the Duke a Person of so great Quality but that may be made good out of the personal Estate I am sure it is no Objection in point of Law But the last Thing they urge is If there be no Relief in this Case you put the greatest Indignity and Reproach upon the Duke that can be imagined That he should call Mr. Monk Cousin send for him out of Holland to leave his Will with him in the Will give him so great a Share of his Estate desire the King to make him a Baron and appoint his Son to be educated as one that was to make no small Figure in the World that he should send for my Lord Chief-Justice Pollexfen to draw this Will make three parts of it deliver one to the Dutchess of Newcastle another to Colonel Monk and carry a third with him into Jamaica and there take publick notice of it and after all this Expectation raised in Mr. Monk of a Fortune run himself into the Charges of an expensive but what he knew would be a fruitless Suit This say they is an unconceivable Dishonour to the Duke to be represented as one that would prevaricate so with the King and the World and play with the Misfortunes of his Kinsman and the rather because the Duke was a plain sincere hearted Man and in all this did but pursue his real Intentions of Kindness to Mr. Monk and his Children Truly methinks they have just as much to say on the other side What shall those many Declarations of Kindness to the Earl before this Deed in this Deed and after this Deed by Letters and other things signify his Care of my Lord Lansdown as one he was most concerned next to my Lord of Bath himself his Petitioning the King to confer on him the Title of Duke of Albemarle in case of his failing of Issue-Male and all this to signify nothing besides the known Kindred the apparent Obligations and Merit of my Lord of Bath sure if all this be considered the Duke's Honour is as much concerned on this side as on the other to approve himself sincere in all these Solemn Transactions Would he own him as his nearest Kinsman and the most deserving of his Blood and all the while have a secret purpose in the last Act of his Life to make a Will by which he would set aside all he had profess'd to do for him and by leaving this Deed and Will with him leave only so much in his hands as should put him into a chargeable Suit for nothing Therefore upon the whole I think there is greater reason to conclude that the Duke did not certainly mean to do this last Act as what he would have to stand against so much formerly done the other way But I rather think the Evidence is strong to perswade any one that the making of this last Will was to satisfie another purpose and make his own Condition easie at home But my Opinion as to the Judicial part of this Case which I thus happen to be of is the stronger in me because of the Authority of two Cases which I take to be express in Point and those are the Cases of Wynne and Roberts and Fry and Porter In the Case of Wynne and Roberts there was Proof of a very great surprize upon the Man whereby he was induced to make a Will and to disinherit his Child of whom he was before very fond and who was married into a very Honorable Family and to break a Settlement solemnly made before all this Matter was Charged in the Bill and proved But not withstanding this the Court declared they would give no Relief but if they could expect any they must go to Law and at last it was ended only by a Bill in Parliament The Court said Try it at Law a Will or no Will and do not expect the Chancery should make Mens Wills or set them aside if legally made especially then not upon bare Conjectures and Suppositions concerning a Man's intentions to relieve against a Solemn Act and Title found at Law In Fry and Porter's Case one of the great Reasons why the Court denied Relief there was that it was a Controversy between two voluntary Conveyances and there that Side that had the Advantage at Law ought to keep it and it was without Precedent to relieve in any such Case So say I in this Case we have no Precedent of Relief in any such as this now before Us We must not say this Court is unlimited unbounded by any Rules it is no doubt limited by Precedents and Practices of former times and it is dangerous to extend its Authority further If therefore I err in my Opinion in this Case I err with these Precedents on my Side and because I have never an one to guide me the other way the Desendants are in Possession of a Verdict Judgment and Title at Law and I can see no ground of Equity to relieve the Plaintiffs against them Then it being very late the Court put off the delivering of the Lord Chief Justice Holt's Opinion and the Lord Keeper's Decree till another Day Die Veneris 23 Decemb. 1693. In the Court of Chancery in Westminster-Hall Com. Mountague al. adv Com. Bathon al. e contra Lord-Chief-Justice HOLT IN this Case wherein the Earl of Mountague and the Dutchess of Albemarle and others are Plaintiffs and my Lord of Bath and others Defendants I shall open the Case very shortly as it stands upon the two Wills and upon the Deeds There was a Will made in the Year 1675 by Christopher Duke of Albemarle wherein there is a Disposition of several parts of his Estate upon his dying without Issue to several Persons but the main Part and Bulk of it is given to my Lord of Bath And in that Will there is mention made of a particular Esteem and Affection which the Duke bare to my Lord of Bath that he was the nearest of his Kinsmen by his Father's side and that he also was indebted to him for many great Acts of Friendship and Offices of Kindness performed to him and his Father Then there is in that Will also an express Desire that the Title of Duke of Albemarle by the King's Favour might be conferred upon the Earl of Bath and that the eldest Son of the Earl of Bath and so the eldest Son of the Family successively should be called Lord Monk so that the Names of Albemarle and Monk may with the King's Favour remain with his Estate in the Posterity and Family of my Lord of Bath in memory of the late Duke his Father and himself The Estate being so disposed of by the Will of 75 there are two Deeds made in the Year 1681 a Lease and a Release The Release doth recite

of my Lord of Bath It doth plainly appear there was a most particular Friendship and mutual Confidence between them in Matters of the Highest Nature and Chiefest Concern Nay that this proceeded so far on my Lord of Bath's side in Duke George's time that he prevailed with King Charles the II. to promise under the Sign Manual and recommend it to his Successors to Create my Lord of Bath Duke of Albemarle if here were a failure of Issue by the Duke Then that this Friendship did continue between Duke Christopher and my Lord of Bath is plain beyond all Controversy for it began upon a very good Foundation That is Whereas the Garter should have been given to the Earl of Bath he prevailed to have it returned to the Young Duke and it continued so much all along that there was nothing of Moment relating to the Duke's Affairs in which the Earl was not mainly concerned And all this is proved by a Series of Letters continuing down from the Death of Duke George to the Death of Duke Christopher In 74 he sends him Word he had pursued his Advice and his Advice should always be very prevalent with him In 75 he tells him he expected to see him with great Impatience because he was not able to go on in the Regulation of his Family without his Assistance and Advice that he had finished his Will and would make all more Perfect when he came to him It should seem his former Will was trusted in my Lord's Hands and when that was returned or brought up in a few Days after this Will of 75 is made and by that all the Estate or the main of it is given to my Lord of Bath and it was the first Will I think that he made after he came of Age and had any Power to dispose of his Estate in Land and thereby as I said he Deviseth the bulk of it to my Lord of Bath He always desired as the Will declares That in case he had no Issue the Earl might succeed him in his Honours and Estate as well out of true Affection to him as his nearest Kinsman on his Father's side as out of due Gratitude for the many Acts of Kindness and Service done by the Earl beyond all the rest of his Kindred and Friends upon which he humbly desires his Majesty to confer the Dukedom upon him and that the Eldest Son of the Earl and so successively the Eldest Son of the Family should be called Lord Monk to preserve his Name and Honour in Memory of his Father and of himself There cannot be Words that express more Kindness and Respect and intention of Advantage than are here used There was an Attempt by Proofs in this Cause to shake the Credit even of this very Will but when the Counsel on that side came to speak to it they could produce no proofs that would at all come near it It is plain then that at this time no Man could have more Kindness for another than the Duke had for the Earl In the Year 78 there appears the same sense in the Duke of the Earl's Friendship by his Letters and the Obligations of Gratitude he had to him That he had no Friend in whom he could confide but himself and desiring him to come to assist him in the Management of his Affairs That his Kindness and Friendship was never to be forgotten without the Highest Ingratitude All this is a sort of Evidence against which there is no opposition to be made so it also continued to the Year 80. when he sent him word of a Servant's death and desired him to secure his Papers and Accounts Thus it stood to the time of making that Settlement and while the Duke and he were upon such Terms with one another it was no strange thing that he should make such a Deed as this and the manner both of preparing and executing it seems far from having anything of surprize in it Then the next thing that hath beeen urged was that this being a Settlement under a power of Revocation which he intended to make use of it was Secreted and Concealed from him so that he could not know what his Power was and several Cases were put where a Man in such Circumstances knowingly suffers a Purchaser to go on with his Bargain he shall not have any Advantage by such a Concealed Settlement Those Cases were all admitted to be good and particularly that mentioned by Mr. Baron Powell and my Lord Ch. Just Treby the Case of Mr. Clare And I think truly I need go no further than to say That there is no Resemblance between that Case and this That is where a Purchaser is concerned and the Person that conceals the Deed suffers the Purchaser to proceed without giving him any notice If indeed there had been a full and clear Proof that the Duke had a real intention to Revoke this Deed if he could have known what he was to do in order to it and had been hindred by the Fraud an● Contrivance of any Person concerned in it in point of Advantage and if by such Concealment it was impossible for him to know the true Circumstances of his Power that would have made a different Consideration in a Court of Equity but there is no Proof that these Deeds were ever in the hands of my Lord of Bath till some little time before the Duke went beyond Sea when the Duke delivered them to him For as to Aleman's Deposition that was but a delivery upon the Execution and not a delivery for Custody And my Lord of Bath in his Answer says He had not them till then expressly so that as far as that goeth it is all the Evidence you have where the Deed lay all the while And his Answer is fortified in this by what Mr. Courtney says that my Lord told him when he came to him that the Deed it self was in the Hands of the Duke and he had received the Draught from the Duke to advise upon And it is further verified by two Material Facts by the Abstract that was taken about some two Years before by Sir Thomas Stringer and by what is admitted on all hands was by my Lord of Bath delivered up when the Will of 87 was preparing and that the Will of 75 and Deed being produced together under the Duke's Seal after his death it is to be taken that both together were put under the Cover and Sealed up by the Duke and delivered to my Lord of Bath as he himself says in his Answer There being then so much ground to believe that the Deed was in the Duke 's own hands what Obligation should there be supposed to lie upon my Lord of Bath to make any mention of it to him It was always intended to be a private thing that is plain There is no Proof what the purposes of the Duke were in making the Will the Purport and Effect of the thing speaks it self But my Lord of Bath says That

and that Mind continued till 81 and it appears by Letters as well before as since that Duke Christopher intrusted him in all his Affairs of Consequence acted not in any thing but with his assistance continually made use of his Friendship at Court to the time of his Death when he was dissatisfied with any of his Servants my Lord of Bath was the Man that must settle the matter when he was to Purchase my Lord Bath must buy for him when he was to sell my Lord of Bath was to transact the matter when he wanted Money my Lord was to procure it for him when he was in danger of losing Money my Lord is applied unto to prevent it All this appears by the several Letters that have been read and produced When he was gone to Jamaica and any Request at Court my Lord's Interest was that which he relied upon my Lord of Bath was the single Trustee to be applied to chiefly in what concerned the Estate the Keys of the Evidence-Room were to be deposited with him as being principally Concerned if he should miscarry Now it must be confessed a Man may do as much as all this comes to and make use of another Man's Friendship and not design to give him his Estate when he had once firmly setled it so and repeated his Assurance of Kindness and continued to make Profession of Kindness all along to the time of his Death and went on to make use of his Service because he thought he might freely command the Service of one who expected to have such Advantages from him yet then I do not see but that it must be admitted that he did deliberately design to impose upon my Lord of Bath or if he did not he did intend to impose upon my Lady Dutchess Now be it which it will I do think he is not to be excused in reference to the Point of Honour as to the Request made to the King for the Earl of Bath and in pursuance of Duke George his desire who engaged the late King to promise under his Sign Manual and he hath made the same kind of Request for Mr. Monk Now upon the whole Matter whether this VVill of 1687. was made to free him from some Importunities in his Family is a great Question There are some proofs in the Case that greatly look that way It is plain he did not execute it for several Months after it was prepared and drawn and when it was published it was obtained with great Importunity against his Inclinations at that Time and there doth not appear any Intention that it should revoke this Settlement but on the contrary it should seem he did not intend so for there are no VVitnesses called to the VVill but the same that came with Stringer from Newcastle House to that purpose But whether he did intend it should take Effect as to the Personal Estate only or to delude my Lord of Bath which way his Honour is best saved is not at all to our purpose to consider upon the Case before us in Judgment Though I must say take it one VVay or the other he seems to blame and to have dealt in some sort double The next thing insisted upon is That this Deed is revoked in Equity of this VVill and though the Power be not pursued in all the Circumstances yet his Intention appearing to make this different disposition of his Estate a Court of Equity should supply that defect Now I take it for granted that a Power of Revocation shall not be carried further in a Court of Equity than the Law will carry it The Law hath been liberal in expounding Powers of Revocation favourably and where the Law expounds a thing according to an equitable Construction there is no reason for Equity to extend it further Where there appear to be other equitable Considerations it may have another Judgment but if it stands without any mixture of other equitable Considerations I think it would be very hard to break through a Settlement especially so solemnly made that he thought fit to restrain himself from altering it without the Assistance of so many Noble Persons whenever he would make use of the Power thereby reserved to him I say it would be a very strange thing for a Court of Equity without the mixture of any other Considerations to assist another voluntary Conveyance against this The Case of Arundell and Philpot is a full Authority in this Case and it has been so often repeated that I need not mention it any further As to what was insisted upon by some about the Revocation being compleated as to the number of VVitnesses by the publication in Jamaica and the impossibility of having any Peers there I must confess had the Duke in Jamaica had an express deliberate Intention and Purpose to revoke and done any Acts to testify it and gone as far in pursuance of the Circumstances as his Condition in those parts would admit that might have come in within that Foundation of Equity to wit Accident But I think there is no ground of Proof of any such Intention or Action For the Proof amounts to no more than this The Duke to prevent any troublesom Applications to him shut up himself in his Room and those that came to him were to come in at the Window And a strong Box in which his Papers were standing under the Window by frequent trading upon it he had a Suspicion that there had been some Attempts to force and open it whereupon he calls for the Box to open it and out of it takes several Papers which he read or gave to Dr. Sloan to read several Letters as I remember and afterwards he took up a sealed Pacquet and said to the Doctor This is my Will and put it down again Is this any manner of proof in the World that this Act was done animo testandi Much less is it any proof that there was any notice taken at this time of this Settlement or that he would avoid it I would say something to that other Point that this being a Deed made to confirm and corroborate the Will of 75 is but Ancillary to the Will and depends upon it and is to stand or fall with it and upon the Revocation of that Will did fall with it This is an Objection wholly inconsistent with the other Arguments that are used against this Deed that it was by Surprize For by those Arguments they would destroy the Deed as inconsistent with the Will but now the Argument is turned the other way But my Lord Chief Justice Holt has so fully and clearly answered that matter that I shall not need to trouble you with saying any more in it The Cases cited about it are in no sort applicable to this Case The last thing insisted upon was supposing the Deed to stand good yet there being a general Trust raised in it to pay the Legacies in the Will my Lord of Bath was no more than a Trustee and the Duke continued Master of the Estate and he who had such a general Power to charge the Land might do it to the full Value and then consequently might dispose of the Land too Now this Point of Trust is the proper Subject of a Court of Equity but to expound a Deed which is made on purpose to prevent a Descent upon the Heir and then to make a general resulting Trust to let the Heir in is such a Construction as will apparently contradict it self and the Deed. But that will fall out to be a Point that comes to be considered hereafter how far this may be a Trust in my Lord of Bath to answer Legacies or Debts in case the Personal Estate should fall short it is not properly considerable now The only Point that was spoken to by the Counsel and left for the Judgment of the Court was this whether in this Case here were sufficient Matter for a Court of Equity to interpose so far as to set aside or impeach this Deed of 81. Now as to that Matter I think I have the Concurrence of my Lords the Judges in it and I am of Opinion that there doth not appear sufficient Ground upon this Case for a Court of Equity to do any such thing Therefore I declare my Judgment That as far as my Lord Mountague and my Lady Dutchess and Mr. Monk their Bills pray that the Court will interpose to set aside this Deed so far their Bills ought to dismiss'd As to any other Matters that arise in the Case I suppose there will be time taken to speak to them but this is the only Matter in Judgment before us at present FINIS

with Sir Thomas his own Hand Errington has proved the Abstract al of Sir Thomas his Hand with the very date in it and swears that Sir Thomas examined it with him Now is it to be imagined that Sir Thomas Stringer should prepare such a Settlement for the Duke to execute without any Order or Instructions from him about it No certainly that cannot be thought But they say Sir Thomas Stringer if he did draw it might forget it or overlook it and he now denies any Knowledg of it Truly I cannot value much what Sir Thomas Stringer has sworn in this Cause he is not consistent with himself and makes but a very odd Figure in the Cause Mr. Stringer My Lord I beg your pardon for interrupting Mr. Baron Powell but I must vindicate my Father he never swore a word in this Cause Lord-Keeper No he did not he was dead before the Cause came into the Court. That was a Mistake Mr. Baron Powell I am sure there was Oath of what he had said about this Deed. Mr. Stringer That my Lord you may make what you please of but he never made any Oath in the Cause Mr. Baron Powell But that which I mention him for was that there is Proof apparent that he was advised with about this Deed and he was the Duke's constant Counsel I do not think I confess that Sir William Jones did draw this Deed it is not insisted upon by the Counsel of my Lord of Bath that he did and any one that considers the Frame of it will think as I do But I conceive he was advised with upon the Proviso and the Writing in the Margent against the Proviso I approve of this Proviso I believe to be his Hand Though several Persons of good Credit that were well acquainted with his Hand have sworn they believe it not to be his Hand But they might be mistaken and to me it appears by the Comparison of the Records Deeds and Papers in open Court for it is plain according to the various Nature of the several Things he writ or set his Hand to he did write several Hands and particularly wrote his Name sometimes one way and sometimes another And therefore upon Comparison of that with other Papers I do believe it to be his Hand The next Thing I would mention is this Here are six subscribing Witnesses to the sealing and executing of this Deed at Albemarle-House of which Sir William Jones was one And one Aleman that is one of the Witnesses swears That when the Duke delivered the Deed to the Earl of Bath he wished he could have done more for him It was probable then the Duke believed he had done something for him and it is very probable too he knew what he had done for him when he wished he was able to have done more And Mr. Prideaux swears though he does not exactly fix the time that the Duke told him himself he had settled his Estate upon the Earl of Bath Then I say it is hard to believe the Duke was surprized in making this Deed when his own constant Counsel drew it so able a Counsel perused and approved so main a part of it and was present at the Execution of it and he should express his Wishes to be able to do more can he be supposed not to know what he did But now let us examine the Evidence and Objections on the other side They say it doth not appear that this Deed was ever read to the Duke or by him It is indeed proved the last Will was read to him by my Lord Chief-Justice Pollexfen but not at the time of the Executing of it But however I think the not reading of a Deed to or by the Party that executes it is a very slender Objection to make out a Surprize so as to set it aside That would shake many a Conveyance I doubt it would shake many Deeds that were made and executed by the Duke For though he was so cautious as some of their Witnesses say that he would not execute any Deeds but what his Counsel set their Hands to yet I do not find that any of them used to be read to him or he himself read them at the time he sealed them Therefore it is a dangerous Doctrine to set aside a Deed upon such an Account Some People will not have Leisure to hear Deeds read or read them themselves Then they object the Mistakes and Mis-recitals of the Limitations of the Will in the Deed which refers to the Will as particularly that of Norton Disney and some others of less moment But God forbid that the Mistake of a Counsel in a Recital in a Deed should be of that great moment as to set aside the Deed when executed by the Party But there is another Matter much insisted on by them as an Argument of Surprize that is This Deed is pretended to be made in Confirmation of the Will in 75 and yet it varieth from that Will in almost all the Limitations of the Estates except in some part of that to my Lord of Bath I confess I have look'd over the Variations and there are several but I have this in general to say to it that I take it this Deed was made for the sake of the Earl of Bath and that it was for the Earl's better Security that he bound himself up by so strict a Proviso not to revoke And if you look into the Deed it will be found to confirm the Will as to my Lord of Bath which was the main Point of both Deed and Will For it sets the Estate given to him upon a firmer foot than it was by the Will which was revocable in its Nature Therefore it must be intended as no doubt it was for that very Purpose to secure it more to my Lord of Bath than it was by the Will But that which is said to be an Argument of the greatest weight and moment in this Matter that there must be Surprize in the Case is this It is hardly to be believed and almost impossible that the Duke should send for Mr. Monk out of Holland by his Will desire the King to bestow upon him the Barony of Potheridg the ancient Seat of the Family make a Disposition of his Estate by a Will so solemnly prepared and deliberated upon take care to have three parts of it one whereof was to be transmitted to the Dutchess of Newcastle another part delivered by himself to Mr. Monk and the third part taken with him to Jamaica and there pulled out and declared to be his Will and yet intend no real Disposition of his Estate by all this These are things so dishonourable to the Duke that they are not easily to be believed of a Man of his Honour and Quality I confess this is an Objection of great weight and carrieth much Presumption with it but it is Presumption only which how far it shall conclude against a Verdict is left to Consideration But besides I

therefore might in these Particulars vary in the Deed from the Will of 75. But I would still have this observed that in substance they do agree he doth preserve the same Favour and good Intention for my Lord of Bath to give him his Estate as his nearest Kinsman If then these Limitations in the Deed were pursuant and agreeable to the Duke 's then Mind it is no matter if there be any such Variations or Alterations from what was in the Will and that it was agreeable to his Mind then I shall by and by take notice of some things that occur in this Case and which seem to satisfy me in it that this was his Intent For I did observe that one thing they insisted upon to shew it was by Surprize was that this was contrary to the Intentions of both the Duke of Albemarle and the constant Series of Purposes in the Family and they undertake to give Instances of it The Defendants Counsel say that his Intention was to give his Estate to the Earl of Bath who was his near Kinsman to whom he had very great Obligations that my Lord of Bath was concerned in that great Action of Restoring the Royal Family which was the Raising of his own that he was a constant Friend of Duke George and his and his Sons chief Counsellor and Adviser and that the Family were under great Obligations is and must be admitted both from what is in the Deed expressed and what is otherwise proved But the Plaintiffs say no they had no such Intention neither one or other of them and particularly Duke Christopher had none neither before the making of this Deed nor after Duke George he makes his Will in June 1665 wherein he gives all his real and personal Estate to his Son and nothing at all to my Lord of Bath I did look into the Will which is very short and there is nothing given to any Body but his Son That is the whole of the Will Then in the Year 1669 is the Settlement made by Duke George upon his Son's Marriage and there is nothing settled upon my Lord of Bath not so much as a remote Remainder In 73 Duke Christopher makes his Will and therein gives great Legacies to the Dutchess but none to the Earl of Bath These are Instances before this Will and Deed but the Answers given them are these which make me not satisfied with the Plaintiffs Objection or Proofs of his never Intending to give my Lord of Bath his Estate First as I said Duke George's Will is very short and takes notice of no Body but his Son and as he gives nothing in it to my Lord of Bath so neither doth he to any Body else and that very Devise is void because it was to the Son and Heir to whom it would without that have descended and it signifies very little to their purpose being in the same Year with King Charles's Sign-Manual at his Request to promise the Earl the Dukedom upon failure of Issue-Male As to the Marriage-Settlement in 1669 there is indeed nothing settled on the Earl of Bath so much as in remainder but in such Settlements Men usually do provide only for the Issue of that Marriage and so leave the Disposition of Remainders to Subsequent-Settlements As to the Will of Duke Christopher in 1673 at that time they say he was but a Minor of 20 Years of Age and it was only to dispose of his Personal Estate for as to his Lands if he had made any Devise of them it had been void and the personal Estate was at that time about 60000l But within a Year or two after that when he came of Age is the Will of 75 made and there is a mighty liberal Gift made to my Lord of Bath and pursuant to his Father's Desire and King Charles's Privy-Seal doth he make that Request for the Dukedom for my Lord of Bath And it must be observed upon all these things that as there is nothing given to my Lord of Bath in Duke George's Will and Settlement nor in Duke Christopher's Will in 1673 so nor is there any Lands in either of them nor in the Will of 1675 or Deed of 1681 given to Thomas Monk the Father of the now Plaintiffs so that that Objection is much stronger against them than against my Lord of Bath Now I do not find any Proof of a Provocation or Cause given by my Lord of Bath to make the Duke totally change from this Intention to give him the greatest part of his Estate and 〈…〉 put him quite out of his Favour nor doth it appear he was so here were several Letters read there have been Copies of them brought us and I have look'd upon them against these Letters it has been observed that there is no notice taken in any of them of this Deed but there is some of the Will of 1687 while the Duke was in Jamaica about the Death of Colonel Monk I confess I cannot say there is any one Letter that speaks of this Deed by the Name of a Deed but there is one or two that hath an Aspect upon it and very near respect to it and cannot refer to any thing else particularly that which was written relating to my Lord Lansdown when he was going to travel and another about his Marriage wherein he takes notice how much he was concerned in him even next to his Father himself as he very well knew and that he wrote so much about him for Reasons best known to the Earl himself this seems to point at some Conveyance and aims at this Deed to my thinking directly They have made another Objection That the Duke never intended to leave any part of his Estate to Sir Thomas Clarges because he was under the Duke's Displeasure upon account of something he took ill from him but that receives an easy Answer What is limited to him is but a Remainder and that of no great Estate neither Besides that the Evidence of the Duke's being displeased with Sir Thomas is but a hearing by a third Hand but I find no Displeasure proved at all that was conceived by the Duke against my Lord of Bath to the last Come we then to the time of making this Deed and let us see whether the Duke did really intend what the words of this Deed do import and that I think is made evident by Proofs that have not been answered or contradicted The Deed takes notice of the very great and many Acts of Friendship and Kindness received by him and his Family from my Lord of Bath and it is proved the Duke declared it ought never to be forgotten nor could he ever make him sufficient Amends It should seem he had procured his Father's Garter for him when he might have had it himself he thereupon tells Mr. Prideaux that he was setling or had setled his Estate upon my Lord of Bath which must be much about the same time that this Deed was made One of the

this Will but in the Recital of it there are some Differences from what is in the Will it self some Variations from it In this Deed it is mentioned that the Intent and Design of the Deed was to dispose of the Estate according as was in the Will And whereas it might be thought strange that the Duke by his last Will which by that Deed he doth confirm and not intend to revoke should give away his Estate from the Heir at Law Therefore for the satisfaction of the World the Duke doth declare the Reason which hath been frequently mentioned and then the Deed disposeth of the Estate some to the Greenvills some to the Clarges but the Main and Bulk of the Estate he settled upon my Lord of Bath But in this Deed there is a Power of Revocation to this effect That it shall be lawful for the Duke at any time to revoke this Deed upon the tender of a Shilling by writing under Hand and Seal in the presence of six Witnesses whereof three to be Peers of the Realm and then to limit new Uses Then he makes his Will in the Year 1687 and therein he gives his Estate in a different manner that is the bulk and the main of it is given instead of my Lord of Bath to Mr. Monk whom he supposeth to be his Kinsman and desires that the Name and Title of Baron Monk may by the King's Favour be bestowed upon him in case he himself died without Issue Now the Question is whether or no this Will in 87 hath revoked this Deed made in 81 in Equity for there are but three Witnesses to this Will and not one of them a Peer so that in Law it is very plain it is no Revocation at all it cannot be a good Revocation there because the Power is not pursued the Circumstances are not observed here is neither the tender of a Shilling nor six Witnesses whereof three Peers nay not only so but here are but three Witnesses in all and not one of them a Peer I am of the same Opinion with my Lord Chief Justice of the Common Pleas and my Brother Powell that this is no Revocation in Equity and that there ought to be no relief had by the Devises of the Will of 87 against those that Claim by the Deed of 1681. These things are to be premised as granted and not to be questioned First That the VVill of 75 was a good VVill there is no manner of dispate to be made of that Secondly This Deed of Release that was made in 1681 is a very good Deed and there is no manner of dispute to be made of that neither for if there had not been a Verdict in the Case yet if they come to have the Opinion of a Court of Equity touching Relief in Equity against this Deed it ought to be taken to be a good Deed in Law or they were not to come hither for Relief against it And as this Deed is to be admitted to be a good Deed so in this Debate all those Circumstances that appear in the Depositions are to be admitted to be true in this Cause I do not say that they are never hereafter to be controverted but now upon this Debate they are to be admitted true As First That Sir William Jones his Hand is to the Perusal and Approbation of the Proviso and it is his VVriting Secondly That he was a VVitness to the Execution of this Deed. And Thirdly That this is true which Errington swears about the Abstract of this Deed made by Sir Thomas Stringer which being main Circumstances about the Deed and Controverted now must be taken for true in the Consideration of this Cause And then a third thing that is to be admitted without all Contradiction too is that this VVill of 87 is a good VVill. The Case standing thus and all these things being taken for granted the Question I say will be VVhether those that Claim by this VVill of 87 can have any Relief against those that Claim by the Deed of 81 And I think there ought to be no Relief but those that Claim by the Deed of 81 have a good Title in Equity as well as in Law I shall not mention any thing of the Evidence that hath been given or insisted upon to support the Deed nor now answer any of the Objections made against the Truth of it for I told you first I take it for granted that it is a good Deed and a true Deed without all dispute But to the intent I may comprehend all the Matters that I think are any way considerable and fit to be insisted upon I shall speak to four general Heads First I shall consider whether upon the Frame and Manner of this Deed of 81 there be any ground of Relief for the Plaintiffs against it Secondly VVhether there appears upon the Proofs and Depositions in this Cause that there was any undue way or manner of Obtaining this Deed from the Duke Or any Way or Contrivance or Management for the Contriving it in being afterwards which may produce a ground of Equity for the advantage of the Plaintiffs Thirdly I shall consider the Circumstances and Conditions of the Parties that are in this Cause those that Claim by the Deed of 81 and those that Claim by the VVill of 87 and whether upon that account there can be any Equity raised in this Cause And Fourthly I shall consider the Person of the Duke of Albemarle and the particular Circumstances he was under at the time of making this VVill in 87 and whether by reason of him from whom the Estate proceeds or the Circumstances he was under there will appear any ground of Equity in this Case The first Consideration I say shall be whether upon the Frame and Manner of this Deed there be any ground of Equity for the Plaintiffs against it There were several things under this Head that were insisted upon by the Counsel for the Plaintiff As First That this Deed of 81 doth partake of the Nature of a VVill because it recites a VVill and it is made to confirm a VVill and therefore shall be Revocable in a Court of Equity as a Will shall be in a Court of Law Secondly That it pretends to Recite the Will of 75 and there are several Mistakes in the Recital and very great Variations from it Thirdly That there are several Dispositions different from those in the Will which it pretends to confirm Now for the first To maintain that when a Deed recites a Will and doth say it self is made to confirm that Will therefore this Deed shall be Revocable in its Nature in Equity as a Will is at Law I must needs say is a Motion that I never heard started before I must confess I am apt to think with the Proceedings and Practice in Courts of Equity that may make it so strange to me it having been laboured with no small apprehended Clearness at the Bar. Therefore for that I