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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

so you cannot imagine that the Duke was at all surprized therein but that when it was executed it was according to that design and purpose Next Sir Thomas Stringer who was the Duke's Counsel to Peruse and amend the Draught as appears by his own Hand sworn by his Son and his Man To imagine then that a Man should be surprized into the making of a Deed when his own constant Counsel doth Peruse and Amend the Draught and the Counsel he used particularly to advise with is by at the Execution and a Witness to it is to say a Man was surprized when he had the Advice of Counsel about it and they were at his Elbow at the Executing of it Now I must confess I am to seek and do not well know what is a Fraud in Equity that shall avoid a Deed which is a good Deed at Law The Case of Bodmin and Wynne and Roberts mentioned by my Lord Chief Justice and my Bother Powell that spake the last day this Cause came on is I think a Case of great Authority in a Court of Equity because it had a great Transaction both in this Court and in the House of Lords before it came to a Resolution and Result I shall put the Case in short as it was here in Court Mr. Roberts Son to the late Earl of Radnor married the Daughter of Mr. Bodmin Bodmin had made a Will and given his Lands to the Children of his Daughter in Tail and after this he makes another Will whereby he gave one part of that Estate to Mr. Wynne and another part to a remote Kinsman It did most plainly appear in the Depositions of this Case that this Will was obtained by great Fraud and Circumvention that is Wynne got into his Acquaintance by pretences of some little Offices of Friendship and Kindness he got him away from his Friends and Relations and during his Sickness he did by false Stories withdraw his Affection from his Daughter kept him in secret Places that no Friend might come at him and while he was so secreted and wrought upon was this last Will made whereby he gave his Estate away from his Child to a Stranger All these pieces of Practice were Apparent before the Court at the Hearing of this Cause which was heard by my Lord Clarendon Assisted by who all Unanimously Declared that this was a VVill obtained by Fraud and by Practice and that there was great Reason if they could to relieve against it But they searched Precedents and could find none that would come up to the Case Thereupon for difficulty there was Advice taken about it in the House of Lords and there upon Consideration was an Order made by way of Advice to the Lord Chancellor that he should proceed to do Justice to either Party though there were no Precedent found to govern the Judgment Afterwards this Cause came to be heard again 12 June 1666 when my Lord Chancellor being assisted by my Lord Chief Justice Bridgman my Lord Chief Baron Hales and Mr. Justice Raynsford did declare That there could be no Relief though it was said before it was apparently a VVill obtained by Fraud and this to the Prejudice of the Heir at Law who had never Offended or given him any Cause to Disinherit her So the VVill was dismissed but the Parties complaining in Parliament were Relieved by the Legislative Power by an Act of Parliament Now besides that there was Evidence of ill practice in that Case but in this I say I find none this is so great an Authority and does shew the wariness of a Court of Equity that I think none can be greater Equity would not relieve them but they were put to seek their Relief by a Law made on purpose But I will suppose now in this Case that when my Lord of Bath did understand the Kindness of Duke Christopher and knew of the Will of 75. and knowing the Incoastancy of the Duke's Temper and other Circumstances in the Family and the Revocableness of a Will should have applied himself to the Duke and told him ' It is true you have been so kind as by your Will to bequeath me a great part of your Estate but you may be prevailed with on a sudden or by some Artifice or other to alter this Will of yours and you may be surpriz'd into the doing of it pray will you make a more solemn Settlement to confirm this Kindness by a Deed And had prevailed to get him to do it Suppose I say he had done so tho I find no Evidence in this Case of any such thing suppose he had been employed in the whole transaction of such a Deed is this unlawful or is it any harm No it is very innocent he might lawfully do it and if he had opportunity he might prudently do it But I say I find not so much as that in this Case but this Deed was fairly obtained from the Duke whether it was by the advice desire or interposition of my Lord of Bath doth not appear or whether it were the Duke 's own voluntary Act though I think it is not material whether it was the one or the other But it hath been said That when Duke Christopher did design to alter his Will and for that purpose sent to my Lord of Bath to bring the Will of 75. which he had in his Custody my Lord of Bath should have told him of this Deed too And therefore the concealing of the Deed of 81. from D. Christopher is a kind of fraud and not making a discovery of it then he shall not now take advantage of this Slip and have the Estate by this Deed because if the Duke had considered the Proviso in the Deed he would have taken eftectual care to have had a good Revocation in all the Circumstances And that he did not so revoke it must be imputed to the concealment of this Deed from the Duke by the E. of Bath So was the Case of Mr. Clare at the Suit of the E. of Bedford which was opened the last Term. A Man that stands by and sees a Cheat which might have been prevented by his discovery shall not take advantage of his own wrong and profit by such concealment But doth it appear in this Case that my Lord of Bath knew to what purpose the Duke sent for his Will or how or in what manner he would alter the Settlement of his Estate Why must he be bound to take more notice of this Deed to the Duke than the Duke himself It was the Duke's own Act and not my Lord of Bath's and why should he give him notice of his own Act The Rule of Law when one is obliged to give notice to another is this When the thing lieth more in the Knowledg of the one than the other and he cannot come to the Knowledg but by his means But when one Man hath reason to know and doth as much as the other he is not bound to give notice

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

Equity I say the Heads of Equity insisted upon to set aside this Deed are four First Surprize and Circumvention in obtaining of it and that relates to the Creation of it Secondly Concealment from the Duke and this by my Lord of Bath and so he was not informed how his Power was circumstanced and therefore not able to execute his Power according to the Circumstances which makes it become a fraudulent Deed and for that Cause the Plaintiffs shall have Relief against it Thirdly Here is a Revocation in Equity though it be not in all Points such as would be sufficient in Law yet here is so much done towards it such a Solemnity in the Action done and such an Impediment of doing more as will amount to an equitable Revocation The fourth Head is that which was mentioned of the Trust in the Deed. As to the first Point of Surprize it was a Head much laboured by the Counsel on the Plaintiffs side and yet I confess I am still at a loss for the very Notion of Surprize for I take it to be either Falshood or Forgery that is though I take it they would not use the word in this Case Fraud if that be not the Meaning of it to be something done suddenly and unawares not with all that Precaution and Deliberation as possibly a Deed may be done Here was a Case cited not long ago in another great Case in this Court out of the Civil Law about Surprize but that was under another Head that is a Man was informed by his Kinsman that his Son was dead and so got him to settle his Estate upon him this is called in the Civil Law Surreptio I know not whether that Word will answer those Gentlemens Notions about this Matter Now the Civilians define that thus Surreptio est cum per falsam rei narrationem aliquod extorquetur when a Man will by false Suggestions prevail upon another to do that which otherwise he would not have done And I make no doubt but Equity ought to set aside that but then this is Properly called Fraud and that must be made out it can never be intended I find not any such thing pretended to be made out that my Lord of Bath did use any false Suggestions to the Duke or Informations at all for what appears in the Proof I beg Pardon if I mistake or forget any of the Proof Then here is Matter of a Surprize objected which must be something that will not avoid this Deed at Law but will avoid a Deed in Equity which yet is not direct Fraud or Falsehood in the Party but is to be gathered out of the particular Circumstances of the Case but what in certain to make of it I confess I cannot tell I would repeat the Words that the Plaintiffs Counsel used they say it is absurdly drawn it was unduly put upon the Duke 't was done without his perusing it or having it read to him it was contrary to his common Intention before and after the Sealing of it It must be admitted that there was Deliberation and Consideration and Intention enough proved to make it a good Deed at Law otherwise there would not have been a Verdict for it but it should seem there was not enough of these in Equity and the want of this is what they call Surprize and that must avoid this Deed in Equity But I confess I am not satisfied that there were any Surprize in this Case in any thing the Duke at the time of making this Deed was under no Force no Restraint no false Information as I observe no nor any Solicitation from my Lord of Bath at all he was in his own House at his full Liberty he was in very good Company for I take it for granted as I shall insist further by and by that Sir William Jones was by at the Execution of this Deed and a Witness to it the Duke was under no Sickness no Weakness and I must take notice of one Proof more which was mentioned he had not been drinking but was in very sober Company This appears to be the Condition in which the Duke was at the Sealing of the Deed in question But let us consider what are the Particulars of Surprize that they who oppose this Deed insist upon I think they are reducible to these three There was a want of collateral Circumstances that use to attend the Execution of Deeds made with good Deliberation and without Surprize Then there are some Observations made upon the wording of this Deed which argue Surprize and then they say it must be obtained surreptitiously because it is contrary to his constant Intention and all the Course of his Actings as well before as after that time First they say there is a want of Collateral Circumstances that are to attend the Execution of Deeds made with good Deliberation and without Surprize and that it appears in these Particulars First it doth not appear who drew this Deed It is certain they say that it could not be Sir William Jones and I think so too They observe and with very good Reason that he saying I approve of this Proviso doth prove that he did only concern himself with the Proviso and did apply himself singly to that and did not manage the Body of the Deed. Then it doth not appear that the Draught of this Deed was read or the Deed subsigned or countersigned by Counsel as was the Duke's usual Method nor was there any Counterpart of the Deed Whereas to the Will of 87 it was carefully drawn and made and three Parts of it prepared and then there were very great Persons concerned as Trustees in this Deed and yet several of them knew nothing of it To this I must acknowledg that the Objection is for the most part true but how far it is an Objection we shall consider farther by and by First for the want of Instructions about the drawing this Deed this is now above 10 Years before it comes in question and such Instructions there might have been but in length of time lost or laid aside and when once a Deed is actually made great Persons as well as lesser ones are careless of the Preparations for such Deeds the Deed binds the Estate and if that be carefully kept there may easily be a Negligence as to the rest I did observe before that though the particular Limitations in the first Will and this Deed do differ yet both Deed and Will do agree in Substance to settle the Bulk of the Estate to my Lord of Bath It is likewise observable that there is a strong Proof Sir Thomas Stringer drew this Deed for his Hand is interlined in every Sheet of the Draught and as I do remember his Son writ it Sir Thomas Stringer was at that time my Lord Duke's Counsel and I confess there have been reported several things about this Matter from his Mouth which because they are very various and inconsistent I wish he had been

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

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