South-hampton and the Earl of Winchelsey and Sir Orlando Bridgman and the said Gape and others and their Heirs upon Trust as to Mudghill as he before had declared and as to the rest of the Mannours and Lands on Trust for payment of all such debts in the said Indentures to be paid and unpaid at his death and for freeing his personal Estate and Executors from the payment thereof and of the Trust in the Deed of 1652 for the Lady Jane Seymour and after these Trusts performed all the Lands unsold and the Reversion thereof be disposed by the Lady Dutchess of Sommerset his Wife and the Trustees by his Will and their Heirs for 21 years from his death to such as the said Lady Dutchess should appoint and in default of such appointment for the raising such sums of Mony for the Plaintiff Elizabeth's portion and maintenance as the Deed of the 20 of April 1654 appoints or in default of such appointment by the Dutchess to go to such Person to whom the Trust of the Inheritance of the premisses after the 21 years is limited by the Will and the conveyance so to be made to the said Dutchess and the other person named in his Will should be upon further Trust that the said Dutchess and the other person should stand seized of the said Lands unsold and the Reversion of such part thereof as should be leased out for lives or years in Trust for William Lord Beauchamp and the Heirs Males of his Body and for want of such Issue forthe benefit of John Lord Seymour for life and after for the benefit of the first and every other Son of his Body and the Heirs Males of their Bodies respectively and for default of such Issue for the benefit of all his Daughters and the Plaintiff the Lady Elizabeth Bruce his Grandchild and all the Daughters of John Lord Seymour and their Heirs equally as Tenants in common and not as Joynt Tenants which Will the said Duke in 1660 ratified by new publishing thereof and all the Trustees in the deed of 1652 being dead except Sir Orlando Bridgman and Gape and the interest in Law being in them by Survivor ship Sir Orlando Bridgman knowing the debts in the deed of 1652 to be paid conveyed all the Lands therein mentioned to the said Dutchess of Sommerset That in 1671 the said William Lord Beauchamp Duke of Sommerset died without Issue whose Heir the Plaintiff the Lady Bruce is and after the Lord John Seymour became Duke of Sommerset and died without Issue by whose death the Plaintiff the Lady Bruce is intituled as Heir to Duke William her Grandfather to the reversion in fee of Mudghill Duke John being only Tenant in Tail thereof and ought to injoy the same it not being liable to pay any debts but is discharged thereof by her Grandfathers Will and not disposed from her by any Act the 19100 l. being all paid So that the questions now before the Court were whether the reversion of Mudghill expectant upon Pleydalls Estate for life as well as the residue of the Estate be liable to all the debts which Duke William owed at his death or only to the 19100 l. debts And secondly Whether the reversion of Mudghill as well as the residue of the Estate after satisfaction of all the debts of Duke William ought to be for the benefit of all Duke Williams Daughters and the Plaintiff Lady Bruce and their Heirs equally or the said reversion to go intirely to the said Lady Bruce as right Heir to Duke William As to the first question the Defendant insisted the said Reversion as well as the other Estate is liable to all the debts for that by the deed of 1652. Mudghill was conveyed for raising of Money for the payment of 19100 l. debts and all other debts that he should owe at the time of his death in which deed it is provided that after the said debts be paid he might by any deed or his last Will Revoke all or any of the said Trusts other than as concerning the 19100. debts yet made no Revocation other than by his last Will and therein he Revoked only those Trusts that were for the benefit of the Lord Beauchamp or the Lady Elizabeth Seymour or his own right Heirs and by the said deed the Legal Estate in Mudghill is setled in the Trustees and their Heirs and the Duke had no power to Revoke the uses or Estates till after the 19100 l. was paid and the said Duke directing his Trustees to convey Mudghill to his Son John he did thereby dispose of an equitable interest only of the reversion of Mudghill and the 19100 l. was not paid in the said Dukes life-time but great part remains unpaid and he hath contracted several new debts since the 20th of April 1654. which the Defendant since paid upon the Securities of the said Lands and Mudghill is one of the Mannours conveyed by the deed of 1652. for the payment of 19100 l. and all other the debts he should owe at the time of his death and altho' the same be directed by the last Will of the said Duke to be setled upon the Lord John Seymour and his Heirs Males yet the said Duke by deed of 1652. had no power to revoke the same for the payment of his debts or if he had he did not revoke the same by the said Will but left Mudghill and other the premisses subject to the payment of his debts and the Trustees understanding such to be the Dukes intention never setled Mudghill on the said Lord John Seymour who being lately dead without Issue the same is subjected to the payment of the said Duke Williams debts and when debts are satisfied the overplus of the Moneys and the said Mudghill and all other the premisses ought to be divided according to the intent of the said Dukes Will and by the said Dukes death and the Releases of the said Trustees the interest in Law became vested in Sir Orlando Bridgman and he conveyed Mudghill c. unto the said Dutchess and the said Gape and other the Trustees and their Heirs that they might therewith pay the said debts and though there be sufficient besides Mudghill to pay all the debts yet by the Will upon which this question doth arise that thereby the Trust for the Right Heirs of the said Duke are revoked in express Terms so that by any deed preceding the said Will the Plaintiff the Lady Bruce cannot claim any advantage as Heir the rather for that by the Will it doth appear that Duke William had an equal regard to his own Daughter and the Plaintiff the Lady Bruce his Grandchild and Heir and it cannot be presumed that he would more concern himself for the Welfare of a Grand-daughter than his own Daughters nor was the said Reversion of Mudghill disposed to the Plaintiff by any words in the Will though he did by express words in his Will Revoke all Trusts for the benefit of his Heirs in
he died about six Weeks after to whom the Lady is Administratrix The Judges Opinion upon both these Cases WE have heard the Case of Massingberd and Ash Remainders of a Term successively in a Deed of Trust being limited and confined to fall within 21 years are good and no Perpetuities referred to us Argued by Council on both sides both upon the Deed of Trust and upon the Will and are all of Opinion That the whole weight of the Case rests upon the Deed of Trust and that the Will though it have some Clauses in it which if they were substantive of themselves would alter the case yet as it is penned and the Clauses all bound up with relation to the Deed of Trust it does not And we are likewise of Opinion That all the Remainders and Contingencies in the Deed of Trust being limited and confined to fall within the compass of 21 years are good and that therefore the remainder of the Term ought to be decreed to the Plaintiff Sir William Massingberd Febr. 17. 1684. Thomas Jones Creswell Levings J. Charlton T. Street The Lord Keeper declared himself of the same Opinion with the Judges That the Remainder of the said Terms after the death of the said Dame Elizabeth were good Remainders in Law and that the Plaintiff Sir William ought to enjoy the premisses for the remainder of the said Terms accordingly and decreed the same Nodes contra Batle 35 Car. 2. fo 106. THe Bill is That the Defendant may redeem or be fore closed and the Defendant being served with a Subpoena refuseth to appear and sits out all process of Contempt to a Serjeant at Arms retorned and cannot be apprehended The Plaintiff prays the Bill may be taken pro Confesso This Court declared In regard the Defendant hath not appeared The Bill not to be taken pro Confesso if the Defendant hath not appear'd but a Sequestration shall issue out against him this Court could not decree the Bill pro Confesso but ordered a Sequestration against his real and personal Estate until he cleared his Contempt Moor contra Hart 35 Car. 2. fo 60. THat a Treaty of Marriage was had between the Plaintiff and Ann his Wife Marriage Agreement the Defendants Daughter who promised to give with her 4000 l. but when the Defendant perceived them to be mutually ingaged began to recede from his Promise which the Plaintiff finding a Letter was wrote to the Defendant by a Friend of the Plaintiffs desiring him to be plain and ascertain what Portion he would give the Plaintiff with his Daughter and then the Defendant agreed to give 1500 l. down and 500 l. more at his death if she should have Issue and both Sums to be charged on his Estate at Creaton and Wapingham which Agreement was in Writing and signed by the Defendant and he did in Answer to the said former Letter express and declare as much under his Hand and thereupon the Marriage took effect But the Defendant pretended he never made any such Agreement and that the Plaintiff married his Daughter without his Consent but confesseth he received a Letter from one Reeve a Friend of the Plaintiffs wherein he desired the Defendant to be clear and say what he would lay down upon the Nail in marriage with his Daughter to the Plaintiff and what he would secure to be paid at his death and that he sent a Letter to Reeve in Answer wherein he acknowledg'd the Plaintiffs deserts exceeded his ability and with all plainness acquainted him he would give her 1500 l. in present out of his Estate at Creaton and 500 l. more at his death if she should have Issue then living but that afterwards Mr. Reeves sent a Letter in Answer to that whereby the Treaty and Proposals are absolutely waved and the Defendant never further Treated but the Marriage was had without his Consent and without any Agreement in Writing or Settlement and therefore he insists upon the Act for prevention of Frauds and Perjuries To which the Plaintiff insists The last Letter sent by Reeve was no manner of the Treaty or Proposal in the former Letters in Jan. 1680. This Court Letters under ones Hand shall amount to a good Agreement within the Statute of Frauds and Perjuries on reading the several Letters sent by Reeve to the Defendant in the behalf of the Plaintiff and the Defendants Answer thereunto This Court is fully satisfied the Plaintiff upon his Marriage became well intituled to the 1500 l. agreed by the Defendant under his own Hand to be paid to the Plaintiff as his Wives Portion out of his Estate at Creaton and decreed accordingly Bradbury contra Ducem Bucks 36 Car. 2. fo 401. THis Court did declare Interest upon Interest decreed That the Plaintiffs ought to have Interest for their Interest Mony from time to time when it is a stated Sum. Dom ' Pawlet contra Dom ' Pawlet 36 Car. 2. fo 516. This is upon a Case stated viz. THat John Trust for payment of Debts Maintenance of younger Children and raising Portions late Lord Pawlet on Marriage with the Plaintiff the Lady Susanna his second Wife and of her Portion setled a Joynture of 1000 l. per Annum on her and afterwards having 3 Children viz. the Defendant the now Lord Pawlet and Susanna and Vere Pawlet by Deed conveyed Lands to Trustees and their Heirs viz. to the use of the said Lord Pawlet for life charged with Portions for his Daughters by the Lady Essex Pawlet his former Wife and after the death of the said Lord Pawlet to the use of Francis Pawlet and others for 500 years on Trust that they should after the commencement of the 500 years out of the Profits or by Leases or other lawful ways out of the premisses allow the now Defendant Maintenance and also sufficient to pay all the late Lord Pawlets debts and maintenance for the younger Children and after that to raise Mony to pay the younger Childrens Portions in such manner and time as the said Lord Pawlet should by any Writing or last Will appoint and in default of such limitation or appointment the Trustees to raise 4000 l. a piece for every younger Son and 4000 l. a piece for every Daughter of the said Lord Pawlet by the Lady Sasanna to be paid at their Ages or day of Marriages if such Portions could conveniently be raised and if not then so soon after as the same could be with this further That every younger Son and Daughter should have Maintenance till Portions paid and after all the said Sums raised the Remainder of the 500 years to be surrendred to whom the immediate Reversion belonged which is now the Defendant That the late Lord Pawlet by Will in 1677. and published at the same time when the said Deed was executed gave to his said two Daughters Susanna and Vere Pawlet 4000 l. for their respective Portions to be paid them as the said Deed directed and made the
of his Real Estate on Trustees and thereby made a provision for the Maintenance of William the younger during his Minority and therefore they opposed the Plaintiff Frances getting Administration of William the Elder The said Plaintiff Frances Whitmore insisted That by the Will of William the Elder there was no joynt devise made to the said William the Son and the Issue Male and Female of the Sisters of William the Father but a several devise to William the Son with Remainder to the Sisters Issue and that the said William the Son having an Interest vested in him by the Will of his Father and being 18 years Old when he died and he having then a power to have proved his Fathers Will the Earls Executorship during his Minority being determined might have spent or given away the said Estate in his life-time he might surely give away the same by his Will which he having done to the Plaintiff Frances she is thereby well Intituled to the same and that the remainder over to Issue Male and Female of the Sisters the Estate being purely personal is absolutely void This Court hearing several Presidents quoted Devisee Infant lived to 18 years and makes his Will and Executors and dies the Executor shall have the Legacy for that an Interest was vested in the Infant declared That by the Will of the Father there was an Interest vested in William the Son and the remainder over to the Issue Male and Female of the Sisters of William the Elder was void and that William the Son living to 18 years and making his Will as aforesaid and the Plaintiff Frances his Executrix she is thereby well intituled to the surplus of the said personal Estate and decreed the same accordingly Whitlock contra Marriot 1 Jac. 2. fo 700. THis Case being upon a Scandalous Answer Defendant ordered to pay the Plaintiff 100 I for putting in a Scandalous Answer His Lordship declared the said Answer to be very Scandalous and Impertinent and that the expressions taken by the Defendant to the Masters Report were not only more scandalous but also Malicious and that it appearing that Ryley the Defendants Solicitor had put Mr. Lynn a Councellors Hand to the Exceptions without his Knowledge This Court Ordered the said Ryley to be taken into Custody of the Messenger and declared the Answer and Exceptions were not pertinent to the Cause but meerly to defame the Plaintiff His Lordship Ordered the Defendant Marriot to pay to the Plaintiff 100 l. for his Reparation and Costs for the abuse and scandal aforesaid and the said Ryley to pay 20 l. and to stand committed to the Prison of the Fleet till payment thereof be made Ash contra Rogle and the Dean and Chapter of St. Pauls 1 Jac. 2. fo 154. THis Case is upon a Demurrer Bill to enforce the Lord of a Mannour to receive a Petition in nature of a Writ of false Judgment to Reverse a common Recovery demurred to and the demurrer allowed the Plaintiffs Bill is to inforce the Defendant the Lord of the Mannour of Barnes in Surrey to receive the Plaintiffs Petition or Bill in the Nature of a Writ of false Judgment to Reverse a Common Recovery suffered of some Copyhold Lands in the Mannour by Susan Râ—gle Widow which the Defendant Râ—gle holds under the said Recovery the Bill setting forth that Katherine Ferrers by the Will of her Husband or by some other good Conveyance was seized in Fee of Free and Copyhold Lands in Barnes formerly her said Husbands in Trust to Convey 200 l. a year thereof upon William Ferrers her Eldest Son and the said Susan his then Wife and Heirs Males of the Body of William Remainder in Tail to Thomas Ferrers the Plaintiffs Father second Son of Katherine and the Heirs of his Body Edward being obliged by Articles upon Susans Marriage with his Son William to settle Lands of that value on Susan for her Joynture That Katherine on that Trust in 1642. surrendred the premisses to the value of 100 l. per Annum to the use of the said William and Susan and the Heirs of their two Bodies begotten remainder to the Right Heirs of William which was a Breach of the Trust in Katherine in limiting an Estate Tail to Susan when it should have been but an Estate for life That William died before the Admittance leaving Issue only his Son William and in 1652. Susan surrendred to one Mitchell against whom the Common Recovery in question was then obtained wherein one Walter was Demandant the said Mitchell Tenant and Susan Vouchee to the use of her self the said Susan for life the Remainder to William Ferrers and the Heirs of his Body the Remainder to the Right Heirs of the Survivor of them the said Susan and William her Son That William the Son died soon after and Susan died in 1684. and the Plaintiffs Father Thomas being dead without Issue Male in case the Common Recovery had not been suffered the premisses would have come to the Plaintiff being the youngest Daughter to her Father as Couzen and Heir both of William Ferrers the Father and William the Son the premisses being Burrough-English and so the Plaintiff was well Intituled to prosecute the Lord of the Mannour in the Nature of a Writ of False Judgment to Reverse the said Recovery wherein there are manifest Errors and Defaults but the said Lord refuses to receive the said Petition and combine with the Defendant Rogle who is Son and Heir of the said Susan by a second Husband who pretends that his Mother Susan surviving her Son William Ferrers the premisses are discended to him by virtue of the use of the said Recovery limited to the Right Heirs of the Survivor of Susan and her Son William so the Plaintiffs Bill is to examine the defects of the said Recovery The Defendants demur for that the Relief sought by the Bill is of a strange and unpresidented Nature being to avoid and reverse a Common Recovery had in the said Mannour 30 years ago and that upon a bare Suggestion generally that the Recovery is erroneous without instancing wherein which may be said in any case The Master of the Rolls declared That as that part of the Bill which seeks to impeach or reverse the said Recovery for any errours or defects therein or compel the said Lord to receive any Petition for reversal thereof or any ways to impeach the same his Honour declared That this Court being the proper Court to supply the defects in Common Assurances and rather to support than to assist the avoiding or defeating of them and there being no presidents of such a Bill as this is he thought not fit to admit of this nor to introduce so dangerous a president whereby a multitude of Settlements and Estates depending on Common Recoveries suffered in Copyhold Courts for valuable Considerations would be avoided and defeated through the negligence or unskilfulness of Clerks and therefore conceived the said Common Recovery ought
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
if he were intituled to a Bill of Revivor he could not revive for Costs there being no Decree inrolled This Court allowed the Defendants Demurrer and dismist the Plaintiffs Bill of Revivor Raymond contra Paroch Buttolphs Aldgate in Com. Midd. 32 Car. 2. fo 517. THe Plaintiff being one of the Kings Waiters in the Port of London Priviledge and yet used the Trade of a Common Brewer and executed his said place by a Deputy The Defendants insist He is not to be exempted from bearing the Office of Overseer of the poor in the Parish The Plaintiff insists That the Kings Officers who serve his Majesty in Relation to his Revenue ought to be exempted from Parish Offices though they executed their places by Deputy and use an other Trade they being still liable to answer any misdemeaner committed by their Deputies and if their Deputies should be absent at any time they are bound to execute the same themselves which often falls out and Presidents of this Nature have often been found and hopes this Court will not take away any the priviledges such Officers ought to enjoy in right of their Offices and that a Supersedeas of priviledge be allowed the Plaintiff and his Writ of priviledge stand The Defendants insist That the Plaintiff driving a Trade of a Common Brewer and getting Money in the Parish he ought to bear the Offices of the Parish notwithstanding his said Office and if any Priviledge were due it ought to be granted by the Court of Exchequer and not by this Court This Court declared The Kings Officer priviledge from Parish Offices tho' he drive a Trade in the Parish That the Kings Officers ought to have the benefit of their priviledge and the execution thereof by a Deputy nor his dealing in another Trade should not in any sort be prejudicial to him he being to answer for any neglect or misdemeanour committed by his Deputy for that it is not reasonable that the Kings Servants or Officers should have nothing else to subsist on Such priviledge grantable out of Chancery as well as Exchequer but their immediate Services or Places under his Majesty and take no other imployment on them and although a priviledge of that nature be grantable in the Exchequer a Writ of priviledge under the great Seal was and ought to be taken in all respects as effectual and therefore allowed the Plaintiff his priviledge Dominus Bruce contra Gape 32 Car. 2. fo 723. THe question in this case is Deed. Will. Revocation whether the Mannour of Mudghill is within the devise of the Duke of Somerset by his Will in August 1657. of the Residue of the Estate unsold for the benefit of his three Daughters and the Lady Bruce his Grand-Child or whether it belongs to the Lady Bruce only as Heir at Law and whether the same be liable and comprehended in the Trust together with other Manours and Lands to Satisfie the 19100 l. Debts only or is subject with the other Lands in the said Deed and Will for Satisfaction of all the debts of the said Duke William The Case is viz. that the Plaintiff the Lady Elizabeth Wife of the Lord Bruce is Grand child and Heir of William late Duke of Somerset and Sister and next Heir of William also late Duke of Somerset who was the only Son of Henry Lord Beauchamp the Eldest Son of William Duke of Somerset the Grandfather which said Duke William the Grandfather did by deed the 13 Nov. 1652. Convey to the Lord Seymour Sir Olando Bridgman c. and their Heirs the Mannour and Lands in Trust for payment of Moneys to the Lord John Seymour and the Lady Jane Seymour Then upon further Trust to pay Debts amounting to 19100 l. and after in Trust for raising 10000 l. for the Lord John Seymour and 6000 l. for the Lady Jane Seymour and Trustees to account yearly to the right and next Heir of the said Duke with a power of Revocation in the said deed as to all but the said 19100 l. debts and that the said Duke William 19th of April 1654. as to a further provision for the payment of the Debts by deed conveyed to the Earl of Winchelsea and the Defendant Gape and others and their Heirs the Lands in Wilts and Somerset worth 30000 l. and sufficient to pay all his Debts to himself for life and after for payment of Annuities and after his death then to the use of the last Trustees and their Heirs upon special Trust that they should lease out the premisses and with the Mony thereby raised and otherwise with the profits pay all such Debts for which the Plaintiff stood ingaged for the said Duke and that the overplus of the said Mony and Profits to be paid and the Lands unsold to be conveyed to the right Heirs of the said Duke wherein was a power reserved in the said Duke by deed or Will to revoke the said Uses or Trust That the said Duke by deed the 20 of April 1654. reciting that the Lord Beauchamp the Eldest Son died since the deed of the 13 of November 1652. and had left only one Son and the Plaintiff Lady Bruce and that the Lady Bruce was left unprovided for and reciting the deed of the 19 of April 1654. made an Additional provision for the payment of his debts which made the Lands the deed of 1652. of a greater value than would satisfie the said Trust and therefore appointed the last Trustees in the deed of 1652. should out of the Money to be raised by Sail of those Land and the profits thereof pay the Plaintiff Elizabeth Lady Bruce 100 l. per Annum till her Age of 17 and after 300 l. per Annum and then after the debts in the deed of 1652. and Portions to the Lord John and Lady Jane Seymour then to pay Elizabeth the the Lady Bruce 6000 l. portion also with power of Revocation That afterwards the said Duke by Will 15 of August 1657. having as aforesaid secured the said 19100 l. debts devised to his Son the Lord John Seymour and the Heirs Males of his Body the said Mannour of Mudghill and because the Lady Ann Beauchamp his Sister in Law had the same as part of her Joynture and the same was Leased out for the life of Pleydall his Will was that till the same fell in possessision to the Lord Seymour the Trustees in the deed of 1652. should pay him maintenance and they to convey to him when they thought fit and by the said Will taking notice of the deed in 1652. and of the 19 of April 1654. and also of his power of Revocation appointed and declared the Trusts in those deeds for his Grandson William Lord Beauchamp and the Plaintiff the Lady Elizabeth Bruce or for the benefit of his Right Heirs should cease and the same was thereby revoked and appointed the Trustees in those deeds to convey the said premisses to the Lady Frances his Wife and the Earl of
to the uses of the Articles To which the Defendant pleaded and demurred insisting the same was obtained on good Grounds and Reasons and farther insisted that since the said Dismission and before the Bill of Review the said Lamb had paid the said 1500 l. with other money unto the Defendant Atwood in Right of the said Ann his Wife who was Administratrix to Richard Kettleby and Ann the Daughter and that in consideration thereof the said Defendant Atwood had made a Settlement equivalent thereto for a Joynture for his said Wife and the Issue Male of their two Bodies with a provision for Daughters and that they had a Son then living and prayed the Judgment of this Court therein Which Plea and Demurrer was argued before the Lord Chancellor Jefferies which his Lordship over ruled and Ordered the Defendant to answer and he would hear the Cause ab origine at which hearing the Defendant Atwood and his Wife insisted That the Plaintiffs demand being only a Remote Remainder in Fee as Right Heir of the Husband was not so valuable in Interest as for a Court of Equity to Decree a purchase to be made for the Sale thereof and to take the money from the Wife and Administratrix to make that purchase when she ought to return the same as Assets or howsoever 1500 l. of the money was her own Portion and belongs to her by her Election within six Months and though according to the strict Letter of the Articles her Husband Richard Kettleby could not be said to die leaving no Issue because he had a Daughter living at the time of his death yet the Daughter dying within the six Months allotted for the Wives Election in case he had died leaving no Issue there was great equity to extend the Construction of that Clause of the Articles so far as to give her back her own 1500 l. portion The Plaintiff insisted That such Remainders in Fee have been considered by this Court and purchases decreed to be made and limited to such Right Heirs and that the 2000 l. in this Case cannot be Assets and in like Cases had been so adjudged at Common Law and in this Case the Articles have expresly provided that the money should go as the Land ought to have gone as if a purchase had been made therewith and as for the pretence of the said Defendant Anns electing 1500 l. her power of electing did never arise nor can her power be enlarged by this Court beyond the express words of the Articles nor is there reason for it in this case in regard the Articles provided that she shall have a Dower besides and the said Ann by virtue of her two Administrations hath a great personal Estate besides the 2000 l. in question This Court declared That the 2000 l. Money to be laid out in Land shall be apapplied as the Land should have been had it been purchased must go as the Lands ought to have gone in case a purchase had been made and yet the Wife had no power to elect 1500 l. part thereof because her Husband died leaving Issue and so her power of election never arose nor did any Circumstances appear to his Lordship in this Cause to induce him to inlarge the Construction of the Articles touching such power of electing beyond the express words thereof and decreed the said dismission to be reversed and that the Defendant Atwood and Ann his Wife do lay out the 2000 l. for purchasing Lands in possession in Fee simple to be setled according to the intent of the Articles And as for the Defendants the Trustees Trustees indempnified in regard they relyed upon the said dismission Signed and Inrolled for their indempnity in paying the said 2000 l. to the said Atwood at his Wife they are indempnified thereby Paggett contra Pagget 3 Jac. 2. fo 2. A Deed of Revocation Blanks filled up after the Sealing and Execution of a Deed yet good and a new Settlement made by that Deed tho' after the sealing and execution of the said Deed Blanks were filled up in the said Deed and the said Deed not read again to the party nor resealed and executed yet held a good Deed. Smith contra Fisher 3 Jac. 2. fo 641. THat Susan Beale by her Will in writing after several Legacies thereby given Money deviled to one for life with Limitations over good gave all the rest and residue of her Estate unbequeathed which consisted mostly in ready money to be put forth to Interest by her Executors and one half of the Interest to be paid to the Plaintiff Ann Cole her Sister during her life and the other half of the Interest unto the Plaintiff Ann Smith Daughter of the said Ann Cole and after her Mothers decease to have all the Interest during her life and if the said Ann Smith died without Issue of her Body then the principal of the Residue should be equally divided between the Defendants Mary Cleever and Elizabeth Farmer The Question is whether the devise over to the Defendant Clever and Farmer as aforesaid was a good devise This Court declared that the said Will was a good Will as to the limitations over to the Defendant Clever and Farmer and decreed the Executors to account accordingly Com' Dorsett contra Powle 3 Jac. 2. fo 148. 599. THis Case is Separate Maintenance where by the Deeds and Agreement before Marriage the Countess of Dorset had an absolute power to dispose of all the Personal Estate she had at the time of her Marriage with the Defendant and the proceed thereof and had by her Will and otherwise well disposed of and appointed the same to the Plaintiff and this Court Ordered the Defendant to confirm the same but as to the Rents and Profits of the Real Estate upon consideration of the several Clauses of the Deed relating to the said Estate and different penning of the same from the other Deeds that concerned the aforesaid personal Estate his Lordship declared that the said Countess had no power to dispose of the same By Indenture Tripertite Dated 28th of June 31 Car. 2. made between the Defendant Mr. Powle of the first part Sir Thomas Littleton and Charles Brett Esquire of the second part and the Countess of Dorsett on the third part reciting That the said Countess was seized in Fee of several Manor Lands Tenements and Hereditaments in England and reciting there was a Marriage intended between Mr. Powle and the Countess it was agreed that if the Marriage took effect the Countess should during the Coverture receive and dispose to her own use and at her own Will and Pleasure of all the Right and Title she had or claimed in the said Manour Lands and Premisses or in any other Manours or Lands of the Countess in England and of all the Rents and Profits thereof so as Mr. Powle his Executors Administrators and Assigns were not to intermeddle nor have any Benefit or Advantage thereby in Law or Equity but
Plaintiff to pay interest for for the 5000 l. to 1641 at 8 l. per Cent. and from 41 to 49 the certain profits of the Mortgaged premisses to go in discharge of the interst till that time and that if the remaining interest with the 5000 l. should in 49 amount to 7000 l. then the Plaintiff to pay Interest for 7000 l. else only for so much as the principal and Interest according to the Statutes in force This Cause was again Reheard by the Lord Chancellor Shaftsbury assisted with Judge Vaughan and Judge Ransford The Defendant insisted that setting of the interest against the certain profits from 41 to 49 as aforesaid was a great advantage to the Plaintiff and that after so long a time the Plaintiff ought not to be permitted to redeem This Court nevertheless was satisfied That the Plaintiff ought to redeem and the Matters now in Controversie being Whether the certain Profits of the premisses shall go against the Interest from 41 to 49 or not and whether the Plaintiff shall pay Interest for any more than the 50000 l. first lent or not and what Interest he shall pay at least during the hard times of War This Court on hearing Presidents was clear of Opinion The certain Profits of the premisses set against the Interest That the Setting the certain Profits of the premisses against the Interest from 41 to 49 ought to be discharged and decreed the same accordingly And touching that Point for what Monies the Plaintiff shall pay Interest either for the 5000 l. only or any greater Sum. This Court with the Judges were of Opinion That the Plaintiff ought not to pay Interest for any greater Sum than only for the 5000 l. the Original Mortgages This Court declaring there is no Reason to give Interest upon Interest Interest upon Interest and that the now Defendant ought not to be in any better condition than Sir Abraham Dawes the first Mortgagee Crisp contra Bluck 25 Car. 2. fo 357. THis Case comes to be heard upon a Bill of Review Bill of Review and an Appeal from a Decree made by the Lord Chancellor Shaftsbury the Plaintiffs Original Bill being to be relieved against a Bond of 1600 l. penalty for payment of 1000 l. and Interest entred by the Plaintiffs Father the Testator and others to William Bluck the younger in 1642. The Defendant commenced Suit on the said Bond in 1662. Bond and Judgment after upon it and the Principal and Interest far surmounted the Penalty when Judgment was entred how payment of Monies shall be applied in such case and had Judgment thereupon against the Plaintiffs Father only and the Principal and Interest due on the said Bond far surmounting the Penalty when Judgment was obtained and the Defendant being 20 years kept out of his Mony but having received several Sums in part since the Action at Law brought it was decreed That whatever Monies were received before the Judgment actually entred should be taken in discharge of the Interest of the said 1000 l. Original debt and that the Defendant should be satisfied after the Judgment entred the whole Mony thereupon recovered with damages from the time the Judgment was actually entred deducting what he had received since the actual entry of the Judgment and allowing his Costs at Law and moderate Costs in this Court And it was found that the Judgment was not actually entred till the Vacation after Michaelmass Term 1662. and so only 250 l. paid in November 1662. Whether Mony paid shall be applied to discharge Interest of the Original debt or towards satisfaction Recovered by Judgment on the same Bond. Judgment when said to be entred was accounted Interest of the Original debt and not towards the Mony recovered by the Judgment and the Account was so setled and decreed and the Mony paid accordingly Yet for Reversal of the said Decree the now Plaintiff for Error assigns that the same tends to the invalidating of the Course of the Court of Kings Bench it being by the Decree admitted that the said Judgment was entred in the Vacation after Michaelmass Term 1662. and not before Whereas it is evident by the Records of the Kings-Bench the said Judgment was entred on Record in Michaelmass Term 1662. and by construction of Law is supposed and presumed to be Recorded the first day of that Term against which Record no Evidence or Averment ought to be admitted and all Monies paid after the first day of that Term ought in Equity to be applied towards satisfaction of the Judgment and so the 250 l. paid in November 1662. in part of a debt in question ought not to go to satisfie the Interest but in part to discharge the Principal The Lord Chancellor Shaftsbury was of Opinion If entred before the Effoin-day of the subsequent Term ought to be accounted a Judgment of the preceding Term. That no Notice could be taken of any actual entry of any Judgment at Law but that every Jugment whensoever entred if before the Essoin day of the subsequent Term ought to be accounted a Judgment of the first day of the Term before and allowed and held the said Error to be good and decreed the 250 l. paid in Nov. 1662. should go and be applied as part of satisfaction of the 1600 l. and damages due on the Judgment and what other Monies were paid by any other of the Obligors their Heirs Executors Administrators or Assigns since the 20th of October 1662. if not paid on other account shall be applied in further satisfaction of the said Judgment first to discharge the Interest and then to sink the Principal and as to so much did reverse the said Decree and the Defendant appealed from this said Decree to the Lord Keeper Finch and insisted That by his Answer to the Original Bill said when the 250 l. was paid the Judgment was not entred and presently after Hearing the Original Cause the late Lord Keeper Bridgman calling to his Assistance the Master of the Rolls who declared That the Defendant should not account for any Mony as received on the Judgment until the said Judgment which was his Security was really and actually entred if the Plaintiff insisted as before which was Over-ruled and the Plaintiff then brought a Bill of Review to which the Defendant pleaded and demurred and thereupon the Lord Bridgman declared the Decree to be Just as to the 250 l. and the Decree made by the Lord Shaftsbury is to unravel the Account setled and to charge the Defendant with 4000 l. when by the Original Bill or Bills of Review they do not charge him with above the Penalty of the said Judgment This Court now declared That the Examination of the time of the actual Entry of the Judgment in this Case Examination of the actual entry of a Judgment at Law only intended to inform the Court and not to impeach the Judgment did not impeach the Judgment but only to guide the
Mudghill as well as the other Lands and made other particular provisions further which shews he did not intend that for her for if he had he would not have Revoked the former Trusts as to that by which she would have been intituled as Heir especially when he hath devised all the Surplus of his Estate which involves Mudghill as well as the rest amongst his own three Daughters and her equally nor doth it any where appear that Mudghill is in any sort exempted from Satisfaction of the Creditors nor could it so be by the said deed made by Sir Olando Bridgman who best knew the intention of all Parties in this matter But the Plaintiffs insisted That the said Duke could not intend Mudghill should be conveyed to the uses declared in the Will for that the same is to be conveyed to the said Lord John and the Heirs Males of his Body which is an Estate of Inheritance and he had power by a common Recovery to have bound the remainder and the reversion after the Estate tale is not Assets in Law and therefore cannot be conceived for the payment of his debts and the rather for that he recites deeds in 1652. and April 1654. and directs the Trustees therein to convey all his Lands and Mannours in those deeds to his Dutchess and others as to the Mannour of Mudghill as before he declared by his Will and as to all the rest of the Mannours he declared for the payment of his Debts so that all the rest excludes the Mannours of Mudghill and upon the whole Will it doth appear the Duke intended no Reversion should pass but Reversions after Estates for life or years and therefore this Reversion of Mudghill which is after an Estate Tail doth not pass and if it had been intended to pass he would have limited it to the said Lord John for life without remainder to his first or other Sons in Tail for he had before given him a better Estate in Mudghill to him and the Heirs of his Body and the Trustees were not to settle Mudghill accordingly until the same fell in possession the same being yet for Pleydalls life This Court on reading the several Deeds and Will declared That although the Lord John might possibly have an Estate Tail in him and doct it but he not doing it this Court can take no notice of it though probably he did forbear to do it because Duke William had Signified his desire Reversion after an Estate in Tail subject to Trusts for payment of debts that he should not have an Estate executed to him till it should fall in possession and not before except the Trustees pleased But the case must be taken as it doth appear before the Court that is Mudghill was once liable to the payment of the Debts of Duke William and tho' 't is pretended that the Will hath taken out Mudghill yet the said Will doth only take out an Estate Tail but the Revesion thereof when the same falls in possession is subject to the same Trust and goes in company with the other Reversions and the same is legally conveyed and doth pass in the general words and therefore this Court is of Opinion that the Reversion of Mudghill is part of the unrevoked Estate and that the Lord Bridgman did well when he made the said Conveyance to the Lady Dutchess and that when the 19100. l. and the said other debts are paid to which Mudghill is as well liable as the other Mannours and Lands then the Trustees ought to convey all the premisses in Fourths and decreed accordingly Maddocks contra Wren 32 Car. 2. fo 22. THe question in this Cause is Mortgage Account with what profits the Defendant Wren shall be charged in ease of the Plaintiff who claims the premisses in question by virtue of a second Mortgage and is admitted to a Redemption on payment of what shall appear due to the Defendant Wren who hath the prior Mortgage The Plaintiff insists That the said Mortgage being of a Lease and the Defendant Wren having possession by Attornment of Tenants he ought to have received the profits whereby his Mortgage would have been fully satisfied yet he permitted the other Plaintiff Dorothy Wife of the Plaintiff Maddox the Mortgager to receive the same and therefore the said Wren ought to be charged whereby the Plaintiff may be let in to have Satisfaction of his Debt This Court declared The prior Mortgagee upon Redemption by the second Mortgagee shall be charged with the profits by whom soever Received after the Second Mortgage That the Defendant Wren ought to be charged with the Rent whether received by the Wife or any other Person after the Plaintiffs second Mortgage made but all received by her before the said second Mortgage he ought not to be charged Coles contra Hancock 32 Car. 2. fo 112. THat Benjamin Coles the 11th of June Revocation of a Will 1678. made his Will in writing and thereby gave to and amongst his then Children naming them viz. Benjamin Samuel Mary and Hannah Portions and appointed his Real Estate to be Sold and added to his Personal Estate and made Elizabeth his Wife his Executrix and the Testator being a Melancholy Person and fearing he might forfeit his Estate by making himself away to prevent a forfeiture by deed the 14 of June 1678. made over all his Personal Estate to Trustees first to pay his debts then to pay some Legacies and all the rest of his Estate to be divided amongst the aforesaid four Children That the Testator afterwards died a natural death but before his death had another Child viz. Sarah who is not provided for either by the said Will or Deed. The question is whether the said Will be Revoked by the said Deed of Trust that if it be Revoked then the said Sarah insists to have her share of her Fathers Estate and that he ought to be looked upon as dying Intestate and at least the Personal Estate ought to be distributed by the Act for distributing Intestates Estates and the deed ought not to stand in her way for that great part of the Estate did consist in debts which were made after the said deed and did not pass to or was vested in the said Trustees and that it is against Natural Right and Conscience that her Father leaving a considerable Estate she should have nothing of it This Court on reading the said Deed and Will is of opinion A Deed of Trust no Revocation of a Will that the said deed of Trust is no Revocation of the said Will being not made with intent to revoke the same but only to prevent the forfeiture in a case which never hapned and Decreed the same to be set aside and the Personal Estate to be distributed according to the Will and the remainder to be divided amongst the four Children Benjamin Samuel Mary and Hannah Estate Devised to be sold for increase of his Childrens Portions and a Child
said Francis Pawlet and the other Trustees Executors Will pursuant to a Settlement for raising Portion That Vere Pawlet one of the said Daughters died and the Plaintiff her Mother took Administration to her Estate and thereby intitles her self to the said Portions of 4000 l. appointed to be paid to the said Vere at her Age or day of Marriage And the Question now being Whether the Plaintiff by virtue of such Administration is intituled to the Portion of her said Daughter Vere who died before her Age or day of Marriage and the Trustees should be compelled to raise the same out of the Trust of the Term of 500 years which was granted out of the Defendant the now Lord Pawlet the Infants Inheritance This Court upon perusal of Presidents declared Difference between a Legacy and a Trust they did not find any of the Presidents that came up to this Case and conceived there was a great difference between a Legacy and a Trust for that a Trust is expounded according to the intent of the party but a Legacy is governed by the Rules of Common Law and an Executor who is to have the residue in one case is not of so great regard as the Heir who is to have the residue in the other Settlement for the raysing of 4000 l. Portion to two Daughters to be paid at Age or day of Marriage one dye before her Portion shall not go to her Administrator but the Heir shall take profits That this case is of general concern to all Families for it was grown a thing of course to charge the younger Childrens Portions upon the Heirs Estate which would not have been charged but for these occasions of providing for Children And in this case the time of payment never hapning but becoming impossible by the death of the Child before the Portion was payable the Plaintiff has no right to demand it And it were hard for this Court to make a Strain against the Heir where the consideration failes for which the Portion was given viz. the advancement of the Children and altho' there were a Will in the case yet it refers to the Deed and was made at the same time so that it does not at all alter the consideration of the Case and it would be hard to decree the payment presently for that were to wrong the Heir who is to have the proceed of the Mony beyond the maintainance until the time of payment This Court saw no ground to take it from the Heir at Law to give it to an Administrator who might have been a Stranger and so dismist the Plaintiffs Bill The Presidents used in this Cause for the Administrators were Rowley contra Lancaster Brown contra Bruen Clobery contra Lampen The President for the Heir Gold contra Emery This Cause was heard in Parliament and the dismission confirmed Woodhall contra Benson al' 36 Car. 2. fo 314. THat John Wirley deceased Settlement Will. being possessed of divers Mannors and Lands for 320 years that the said Term came to the Defendants Adams and Shagburgh in Trust for payment of Monies and after in Trust for Edward Colley Grandson of John Wirley for his life and after his decease to the Plaintiff Ann late Wife of the said Edward Colley and the said Plaintiff Ann to have 130 l. per Annum for her life which Settlement was made in consideration of Marriage and after the death of Edward Colley the Trustees were directed to permit the Heirs Males of Edward on the Plaintiff Ann to be begotten to receive the residue of the profits and in case of no Issue Male of her there is provision for Daughters and Limitations over to the said Edward Colley's Heirs Males and it was also declared that in case the Plaintiff Ann should Survive the said Edward then she to have the moiety of the Mannor house for her life that the Trust limited to the Heirs Males of Edward and the Remainders thereupon depending are void and the benefit of the whole Trust was in Edward for that the Trust would not be Intailed That by another Deed it was declared by the said Edward Colley and his said Trustees that in case the Plaintiff Ann should have no Issue she should have the whole Mannor house above the 130 l. per Annum and by another Deed the said Edward Colley by consent of his said Trustees declared in case the said Edward should die leaving the Plaintiff Ann no Issue and should not otherwise dispose of the residue of the profits of the premisses over and above the Rents and Charges payable as aforesaid then his said Trustees after his death should by Sale or Leases of the premisses pay all debts and after all debts paid to permit the Plaintiff to receive the residue of the profits for her life and after her death to permit the right Heirs of Edward to receive the same That the Trust for the right Heirs of Edward was void and reverted and the said Edward did afterwards declare that in case he had no Issue he intended to leave his whole Estate to the Plaintiff Ann. That the said Edward 22 Jan. 26 Car. 2. made his Will in writing reciting the Agreement in the last Deed touching payment of his debts and after some small Legacies devised to his said Trustees all the rest of his personal Estate in Trust that they should pay his debts as aforesaid and declared his meaning to be that his Executors after his debts paid should deliver the overplus to the Plaintiff Ann deducting 5 l. a-piece for their pains and all charges That Edward soon after dying the overplus belonged to the Plaintiff and the said Trustees possessed the premisses and the personal Estate and the Plaintiff Ann having since intermarryed the Plaintiff Woodhal whereby the whole belongs and remains unto him in right of his Wife and the said Trustees ought to Assign to the said Plaintiff But the said Trustees pretend the Trust and Term aforesaid doth after the Plaintiff Anns death belong unto the Defendant Gabriel Ciber and Jane his Wife she being the only Sister and Heir at Law of the said Edward Colley That the Defendant Benson knowing of the Will and Settlement aforesaid purchased the premisses of the Defendant Ciber and his Wife and the Trustees Assigned to him The Defendants the Trustees insisted That their names were used in the Marriage Settlement of Edward Colley upon his Marriage with the Plaintiff Ann in which Settlement was recited a Conveyance made by John Wirley whereby he did demise the Trusts therein mentioned and the premisses in Trusts as to Clark's Farm for such persons as he or his Executors should by Will or otherwise direct and several other persons upon several other Trusts and as to several parcels of the said premisses which the said Defendant conceived was the Estate lately enjoyed by Edward Colley in Trust for such persons as the said John Wirley should direct and for want of such appointment to
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