the same that she shall release the 2000 l. per Annum within Three years after his death or else that Devise to be void The Remainder of his Lands in Berks to Sir Walter Clergyes pur vie and after in Tail Male Remainder to his Cousin Henry Monk in Tail Male Remainder to his own Right Heirs To Bevile Greenvile Son to the Earl of Bath his Freehold Lands in Surrey and Southampton for life and then in Tail Male Remainder to his Cousin Tho. Monck pur vie and then in Tail Male Remainder to his Cousin Henry Monck in Tail Male Remainder to his own right Heirs His Lands in Devon to Colonel Thomas Monck for life and then in Tail Male Remainder to his Cousin Henry Monck in Tail Male remainder to his own right Heirs All his Lands in Ireland to his Cousin Henry Monck in Tail Male with Remainder to his own right Heirs Provided That if he have any Issue all devises of any Sums of Mony except for his Funeral his Father's Monument Alms-houses and Legacies to his Executors shall be void and if he leave any Issue the premisses devised to Sir Walter Clergyes Mr. Greenvile Thomas and Henry Monck and their Issue shall go to his Issue viz. to his Sons successively in Tail Male if Daughters in Tail with Remainders to the said persons as before Provided If he leave Issue Male he deviseth to his Wife as an Additional Joynture to her Rent charge Lands in Devon and Essex for her life and makes the Dutchess during her life and in case of her death the Dutchess of Newcastle Guardians of his Children he shall have And in case it happen that Colonel Thomas Monck or any Heirs males of his Body shall live to come and be in possession of the premisses devised to him he desires they will live at Potheridge the Ancient Seat of the Family and desires his Majesty to grant them the Title of Baron Monck of Potheridge that it may remain in the Family in Memory of his Father and himself and his Service his Father had the Honour to do the Crown in the Restauration and makes the Duke of Newcastle Lord Cheney Jarvis Peirpoint Sir Walter Clergyes Sir Thomas Stringer Henry Pollexfen Esq and others Executors That the Duke gave direction to Henry Pollexfen Esq to make this Will and when drawn was fully approved of by the Duke upon mature deliberation Which Will being in Three parts he carefully lock'd up and after leaving Two parts of his Will to two persons and kept the Third he went to Jamaica That the Duke when in Jamaica heard Colonel Thomas Monck was dead in Holland sent to the Earl of Bathe Sir Tho. Siringer and others to send over for Chripher Monck the Colonels eldest Son to Educate him so as to fit him to bear the Character of one to whom he intended the greatest part of his Estate if he died without Issue In September 1688. the Duke sickned in Jamaica and there again published his said Will and declared that if he died the Box and Will should be delivered to the Dutchess and died in October following That the Dutchess at her Return from Jamaica found that the Earl of Bathe set up another Will dated 3. Aug. 1675. whereby the Remainder of the greatest part of the Estate was given to the Earl of Bathe and his Heirs and likewise a Settlement by way of Lease and Release in corroboration of that Will by which he seeks to avoid and frustrate the Will of 1687. That the Duke sent to the Earl of Bathe for the Will of 1675. if any such to have it delivered to him that he might make another Will That the Will of 1687. was Sealed at Sir Robert Claytons the same day after other Writings had been by him sealed to the Lord Chancellor Jeffreys of some Lands sold to him and that the Dutchess nor any of her Relations ever knew or heard of the said Deeds till after the Dukes death nor known to Sir Thomas Stringer who was the Dukes standing Councel and the Plaintiffs farther insist if there were such Deed yet it ought not to avoid or impeach the said last Will though the power of Revoking the same was not literally pursued yet the same in Equity ought to be taken as a Revocation and the rather for that at the making of the Will the Duke remained owner of the Estate and he lookt upon himself so to be for that he had since the said pretended Deeds sold some part of the Estate to Chancellor Jefferies without any Revocation and the Earl of Bath paid no valuable Consideration and that he ought to be protected in the enjoyment of the personal Estate and the Specifick Legacies devised to her in the Will of 1687. tho' the Will of 75. if any such be was intended by the Duke principally to hinder the discent to his next Heir and the Deeds if such there be were for the same purpose and that tho' the Deed recites to confirm the last Will of 75. yet does in several places controul it and alter it whereby and by the extraordinary strange and unprecedented Declarations Provisoes and Covenants therein the Plaintiff believes the Deeds were never executed by the Duke or if so that he was surprised therein and pray Relief in the premisses To this the Defendant makes Answer Answer and sets forth the Will of 1675. whereby the greatest part of the whole Estate was given to the Earl and his Heirs and sets forth the Considerations of his so doing as Antient Kindred and Esteem between Duke George and the Earl of Bath and several Services and good Offices that he had done the Family and likewise sets forth that being well satisfied with such his disposition of his Estate and finding that he had been often importuned to alter the same and fearing lest the repeated Practises and Arts attempted against such his Disposition might some time or other surprise him into a Compliance Consulted with Sir William Jones and other his Councel how to Obviate such practises and to settle his Estate in such manner as that it might not be avoided although for his ease he should at any time seem to yield to the Sollicitations of his near Relations whereupon in Anno 1681. the Duke makes a Settlement wherein he begins That for the assuring of the Honour Manours c. upon a Person of Honour c. and for the Corroborating and Confirming the said Will of 75. and to the end that no pretended last Will should be set up by any Person whatsoever and for the Natural Affection that he beareth to the Earl of Bath c. grants by Lease and Release several Mannors Lands and Tenements c. some in Possession and some in Remainder upon the Earl of Bath in Fee and so to Walter Clergies c. in which Deed there was this Proviso Proviso That if the Duke shall at any time during his life be minded to make void the said Indenture
the same could never by any subsequent Act come into the Administration of the Estate of Sir Martin What Act amounts to an Assent of a Legacy and that every Act of the Defendant Robinson was a plain Assent to the Legacy to the Plaintiffs and it is plain the premisses were devisable and so the Plaintiffs Title plain and undoubted and the Plaintiffs ought to have a Decree against the Defendant to Account to them for the said Estate and ought to have the benefit of the said Lease The Defendant further insisted That by such imprudent Act as aforesaid he ought not to be Devested of the Estate but it ought to go to pay Sir Martins debts This Court declared That by the said Clause in the Lease to Worsam the Defendant had Assented to the Plaintiffs Legacies given them by the Will of their Father and that the Devise by the Will was a good Devise Devise of a Plantation in Barbados and that the premisses did well pass thereby and that the said Act of the Defendant Robinson being voluntary had put the Estate out of the power of the Creditors of Sir Martin or out of the power of any Administrator de bonis non of him Decree the Plaintiffs to have the benefit and the Defendants to assign and decreed the Plaintiffs to have the benefit of the premisses and of the Lease to Worsam and the Defendants to Assign their Interests to the Plaintiffs accordingly But the said Defendant desiring a re-hearing of the Cause which was on the 20th of Nov. 1682. when the Defendant insisted That the said Lease could not be an Assent for that the Defendant Robinson then claimed the premisses not as Executor or otherwise than only as Trustee for the Devisees whose Inheritance he then took the same to be and not as personal Estate upon which and other grounds the Defendant insists the said Rent and Reversion of the premisses expectant on the Determination of the Lease was and ought to be of the Testators personal Estate and to go in the ordinary course of Administration and to an Administrator de bonis non and be lyable to debts His Lordship notwithstanding what was now urged by the Defendant declared Decree by Finch he saw no cause to alter the former Decree but confirmed the same This Decree reversed by the Lord Keeper North The Decree reversed by North. and in 1683 fo 168. he heard this Cause upon the whole merits and ordered an Account And in 1686 Finch his Decree confined by Jefferys The Lord Chancellor Jefferys reheard this Cause upon the Merits and confirmed my Lord Chancellor Finch's Decree and discharged my Lord North's Decree Benson contra Bellasis 34 Car. 2. fo 848. THis Cause having received a hearing before the Lord Chancellor Nottingham 11 July 33 Car. 2. who made a Decree for excluding the Defendant Dame Dorothy Administratrix of Robert Benson the Plaintiffs Father from having any part of his personal Estate and the said Cause being heard 10 July 35 Car. 2. before the Lord Keeper North who decreed the said Defendant Dame Dorothy to retain to her own use one third part of the said personal Estate of the said Robert Benson and the said Cause being again reheard this day by the Lord Chancellor Jefferys The Case being that the said Robert Benson on his Marriage with the Defendant Dame Dorothy for the setling of a Joynture on the said Dorothy in full of all Joyntures Dowers and Thirds which she might claim out of his real and personal Estate conveyed Lands to the use of himself for life and after to the said Dorothy for life in full of all Joynturs c. as is aforesaid with this Proviso Settlement on Marriage That if the said Dorothy should after the death of the said Robert Benson have or claim to have or should recover any other part of the Lands or Tenements or any part of the personal Estate of the said Robert by the Custom of the Province of York or by any other means whatever other than what the said Robert Benson should give Bequeath or Settle upon or to her That then the Feoffees therein named should be seised of all the premisses setled in use upon the said Dorothy to the use of Sir Henry Thompson and Mr. Grayham their Executors Administrators and Assigns for 60 years to commence from the death of the said Robert if the said Dorothy should so long live Upon Special Trust that the said Thomson and Grayham should receive the profits of the premisses limited in the Joynture and they should dispose thereof to such persons and their uses as should be damnified by the said Dorothys perception of the profits of any other Lands of the said Robert or the taking or recovery of any part of the personal Estate other than what should be given or bequeathed until the respective values of the Profits or values of such Personal Estate should be fully satisfied and the residue of the said Profits to remain to the said Dorothy That the said Robert dying intestate and the said Dorothy Administring at York and in the Prerogative Court of Canterbury as Guardian to the Plaintiff Robert possessed the Real and Personal Estate prerends a Right to some part of the Personal Estate by the said Administration notwithstanding the said Marriage agreement The Lord Chancellor Nottingham declared the said Dorothy was bound by the said Marriage Agreement Marriage Agreement provided if the Wise claim any of the personal Estate by the Custom of the Province of York then the Estate to other use Decreed she is bound by the said Settlement and ought not to claim any part of the personal Estate by Finch and the Administration ought to have been granted to her and that however the same ought not any ways to avail her for that it would be contrary to the said Settlement and Agreement and that the said Dorothy ought not to claim any part of the Real Estate other than what was Setled on her by the said deed or any of the Personal Estate and decreed accordingly But the Defendant Dorothy insisted Reversed by North. That the Lord Keeper North had adjudged one third of the Personal Estate to belong to the Defendant by virtue of the said Administration and was an accrewing Right not barred by the Marriage Agreement The Lord Chancellor Jefferies Confirmed by Jeffreys on reading the said Marriage Settlement and the said two former Orders declared That the said Order for the Excluding of the said Defendant Dorothy from having any part of the Personal Estate was a just Order and ought to stand and be pursued and that the said Order of the Lord Keeper Norths before mentioned ought to be set aside and Decreed accordingly Stapleton contra Dom. Sherwood 34 Car. 2. fo 732. THat Sir Phillip Stapleton the Plain tiffs Father Bill for Distribution of the personal Estate on his Marriage with his first Wife Setled
in Equity to be an Evidence against the Deed so as there appears no Evidence that the Earl surprized the Duke or that the Duke was surprized As to the third point touching the Circumstances and Conditions of the Persons The Earl was a near Relation and had done many kindnesses to the Duke and his Family and was especially intrusted by him and though the other Persons that claim by the Will of 1687. may be of Relation to him yet he that hath the best Title hath the right And so it is in the Case of Persons where both claim under two voluntary Conveyances As to the fourth and last point touching the Circumstances the Duke was in when the Will was made the Duke when he made the Will was under a Restraint by the Deed of 1681. for his power was executed and the Duke had restrained himself And the Court of Equity hath no power to examine into the Reasons and Considerations for doing it and there may be Reasons for a Wise Man to Restrain himself for he may not know what surprize may be put upon him and as there may be reason for it so it shall be presumed there was good reason Further there is no Evidence of an Intention in the Duke to execute the power for he had an opportunity to have done it and because a Man may one way dispose of his Estate that therefore he may do it any way is strange and if that may be done it will overthrow all the Conveyances that are made They on the other side pretend the Duke had forgotten the Deed. It was made but in 1681. and well attested by Credible Witnesses and if he had forgotten it his Councel had an Abstract of the Deed and because a Man had forgot a Deed that ought not to be a cause in a Court of Equity to set that Deed aside for Memory may fail but a Deed is Permanent so there ought to be no relief against the Earl and those that claim by the Deed of 1681. Lord Keeper There be three Suits in this Court the Dutchess her first Eill is to set aside the Deed of 1681. And the second Bill by the Moncks much to the same effect and on the same Evidence And the third Bill by the Earl complaining of the Will of 1687. On the hearing of the Causes the 8th day of July 1691. before the then Lords Commissioners and on a Trial directed touching the Validity of the said Deed of 1681. there was a Verdict for the Deed and this Verdict hath not been stirred The Cause comes now to be heard on the Equity reserved on the whole matter I declare the Deed doth stand Unrevoked at Law and the Defendant the Earl of Bathe is well intituled under that Deed for here are no Creditors nor Purchasers or any Children to be provided for and the benefit that comes to the Earl is the Essex and the Northern Estate The Court did declare that there is not any sufficient matter in Equity appears to set aside the Deed therefore dismist the Bill of the Earl of Mountague and Christopher Monk so far as they seek relief to set aside the said Deed of 1681. and as to the other matters Equity to be reserved THE TABLE A UPon the Buying the Equity of Redemption of Lands in Extent Account decreed from the time of the purchase p. 392 Bond to perform a Marriage Agreement pleaded in bar of other Debts 103 Letters under ones Hand shall amount to a good Agreement within the Statute of Frauds and Perjuries 286 Mony Agreed upon Marriage to be laid out in Land shall be applied as the Land should have been had it been purchased 409 Annuity not being demanded in 40 years time conceived to be a Trust 221 The Defendant ordered to pay the Plaintiff 100 l. for putting in a Scandalous Answer 386 Bill to discover Assets Lands decreed to be sold to supply the Personal Estate 99 Legatees to refund to make up Assets 137 Lands purchased in Trust decreed Assets to pay Judgments 143 No resorting back to a defect in Articles after a Conveyance thereupon executed 107 Cross-Bills for setting aside or performing an Award 24 A voluntary Award decreed to be performed 304 B BAil to answer no more than what is exprest in the Ac etiam Billae 55 226 Bankrupts as to Partners 227 228 Joynt Debts 227 228 Separate Creditors 227 228 Relief against Over-reaching Bargains and how 266 270 The Bill not to be taken pro Confesso if the Defendant hath not appeared but a Sequestration shall issue out against him 284 Relief denied against a Bond entred into to a Solicitor to pay 100 l. when a Verdict should be recovered 21 Parson relieved against a Bond given for Resignation 398 C CErtiorari allowed to remove proceedings by English Bill in the Lord Mayorâ—s Court into Chancery 110 Conveyance with power of Revocation on payment of 12 d. at such a place 12 d. was tendred at another place with express declaration to revoke the Deed 74 Vide Revocation Plaintiff two days before the Commission for Examination of Witnesses was arrested by the Defendant and in Execution ordered to be discharged and the Defendant to pay Costs and be at the charge of a New Commission 22 Covenant to purchase so much Lands per Annum value 273 Voluntary Conveyance tho' a provision for younger Children not to prevent satisfaction of subsequent Judgments 265 Copyholder not to be admitted by Letter of Attorney 56 Fines of Copyholders whether certain or arbitrary it having been tried at Law the Court would not relieve the Plaintiff other than for the preservation of Witnesses 76 Of renewing Copies upon reasonable Fines 135 Vpon a Contract for Copyhold Estate and Purchase Mony paid the Bargainor dies before Surrender his Heir decreed to surrender 218 Surrender of Copyhold Land by Infant of 5 years Old 392 Costs from the time of their being Taxed shall carry Interest and shall Charge and be recovered out of the Assets 247 Where Costs to be paid or not 172 Bill for Creditors to take their proportionable shares but their Debts having been paid to them and Releases given dismist 218 D THe Court of Chancery will not try or ascertain Damages recovered at Law 63 Copies of Depositions not to be recorded or exemplified 36 Depositions suppressed and why 393 Blanks filled up after the sealing and execution of a Deed yet good 410 Distribution according to the Act for the better settlement of Intestates Estates 371 372 Such Distributions are made in Chancery as well as in the Ecclesiastical Courts 373 374 375 A 1000 l. to be raised amongst 5 Children one dies before Distribution the Survivors shall have the Share and not the Devisee of him that is dead 150 Decree in Chancery as effectual to charge the person as an Execution at Law 193 Executory Devises vide Perpetuities Term devised to B. and he die without Issue then to C. it s void as to C. 16 200 l.
Children This Court is of Opinion That the said 60 l. belonged only to the Children of the said Mark Warren which he had by his then Wife at the time when the said Mony was given and decreed the same accordingly Wallop contra Dominam Hewett 24 Car. 2. fo 218. THe Plaintiffs Henry and John Wallop seek Relief for 400 l. Legacies given by a Will and a Codicil and are distinct not one and the same viz. 200 l. apiece Legacy given them by the Will and Codicil of the Lady Crofts The Case is That the Lady Crofts by her Will gave the Plaintiffs 100 l. apiece and afterwards by a Codicil annexed to her Will gave the Plaintiffs 100 l. apiece The Question is Whether the said Legacies so given be one and the same or distinct and several Legacies or what her Intention was in reference to the same and desire the Judgment of the Court therein This Court with the Judges on Reading the said Will and Codicil were of Opinion and satisfied That the said Legacies in the said Will and Codicil mentioned are not one and the same but distinct and several Legacies of 200 l. and decreed the Defendants to pay the said Plaintiffs 400 l. Thorne contra Newman 24 Car. 2. fo 371. 24 Car. 2. fo 8. THat Nicholas Burnell Deed of Revocation Father of the Defendant Margaret Newman being seised of the premisses in 1652. demised the same to Elizabeth Stone for 99 years at a Pepper-Corn with a Proviso to be void on payment of 590 l. and the said Elizabeth died and made Elizabeth Wheat her Executrix and Thomas Baker marrying the Defendant Margaret Newman in November 1657. Elizabeth Wheat and the said Nicholas Burnell Assigning the premisses to Thomas Baker and the said Baker for 500 l. borrowed of the Plaintiff Assigned to one Minterne in Trust for the Plaintiff in 1659 and Baker failing in payment contracted with the Plaintiff for 770 l. more that he would give his Interest in the premisses absolutely without any power of redemption and Baker and Minterne did joyn accordingly in 1660. And the Plaintiff insists That the Defendant claims the premisses by a Deed dated the 19th of August 1659. whereby it is pretended That by Indenture made between the said Old Burnell of the one part and Thomas Lewis and Bartholomew Pickering of the other part the said Burnell in Consideration of the Natural love and affection to the said Margaret and for the setling and confirming of the premisses for the uses therein and for 5 s. Covenanted to stand seized of the premisses to himself for life Remainder to the Defendant Margaret for life then to the Wife of the said Thomas Baker Remainder to the Heirs of her Body with Remainders over and the said Burnell dying in 1659. the premisses then vested in Margaret and that Baker in her Right became seised of the Freehold thereof and that thereby the Remainder of the said term of 99 years was drowned Term drowning in a Freehold and so the Assignment to Minterne and the Assignment by Baker and Minterne to the Plaintiff was void and so the Plaintiff a purchaser for 1300 l. like to be defeated And the Plaintiff further insists That if the said Deed were ever sealed it is with a Proviso of Revocation to be void on payment or tender of 12 d. to Lewis or Pickering or either of them in the Middle-Temple-Hall and that Burnell did tender 12 d. to Lewis with intention to make void the said Deed and declared so to Lewis that she did revoke the said Deed and pulled the Seal off from it and that a Memorandum was Indorsed on the backside of the Deed That there was 22 Octob. 1659. 12 d. tendered to Lewis to revoke the said Deed but the Defendants pretend because the 12 d. was not tendered in the Middle-Temple-Hall therefore the Revocation was not legal and so the said Deed still in force and the Plaintiffs Estate drowned The Defendants admit the Case to be as aforesaid but insist That the said Deed 19 Aug. 1659. was intended for a Settlement on the Defendant Margaret for a provision for her after the death of the said Baker her Husband he having not made any Joynture and that the said Defendants claim the premisses by the said Deed whereby immediately upon the death of Burnell the Freehold of the Premisses vested in Baker in right of the said Margaret his Wife and so the Plaintiffs Estate was drowned and that Baker was not by intention of the said Deed to sell away the premisses for any longer time than his own life without the said Margarets Consent and Joyning with him in a Fine thereof And the Defendants further insist That the 12 d. ought to have been tendred in the Middle-Temple Hall else the Deed must be in force and if any Memorandum or Declaration were made as aforesaid the same was done out of design only to have the said Baker make the said Margaret a Joynture But the Plaintiff insists That he ought to hold the said premisses for the residue of the said term for 99 years against the said Deed. This Court was satisfied That the Plaintiff ought in Equity to enjoy the premisses against the Defendants Voluntary Deed set aside against a purchaser and that the said Deed ought to be set aside as against the Plaintiff but the Defendants are to redeem The Bill being to set aside a pretended voluntary Conveyance set on foot by the Defendant Conveyance with power of Revocation on payment of 12 d. at such a place 12 d. was tendered at another place with express declaration to revoke the Deed. which Deed is with power of Revocation upon the tender of 12 d. and the 12 d. was tendered accordingly with intent to revoke the said Deed and the said Deed is accordingly Cancelled but the Defendants in respect the 12 d. was not tendered at the place appointed set the said Deed up at Common Law and upon a Trial at Law without any defence made by the Plaintiff the Defendants were Nonsuited and the Plaintiff being a purchaser of the premisses first by Mortgage for 500 l. and afterwards by absolute Assignment for 770 l. more The Lord Keeper upon reading the said Cancelled Deed saw no cause to alter the Master of the Rolls his Decree aforesaid but ordered the same to stand Confirmed Comes Sterling contra Levingston 24 Car. 2. fo 113. 432. THat Sir Peter Vanlore the Elder being seised in Fee of the Lands by Deed Covenanted to stand seised thereof to several uses under which all parties to the Suit claim several parts of the premisses and here being a Proviso in the said Deed That if young Sir Peter Vanlore or the Issue whose Issues and Heir the now Plaintiffs are should attempt to impeach the said Settlement that then the uses to him and them limited by the said Deed should be void and that by the death of several persons several parts
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
said debt nevertheless that debt ought to be made good out of the said Pincheons Estate whatever and decreed accordingly Ramsden contra Farmer al' 28 Car. 2. fo 516. THat Simon Carill was seised in Fee of Lands Lands conveyed to Trustees for payment of Debt conveyed the same to Trustees to sell and dispose thereof for performance of his Will who by his Will devised the said premisses to the said Trustees and their Heirs to pay his debts and made Elizabeth his Wife his Executrix who afterwards married Mr. Barnes and the said Trustees with the consent of the said Elizabeth conveyed the premisses to Sir John Carill and others in Trust in the said Will Trust assigned and the said Barnes after died and the said Elizabeth married one Machell and by Deed 22 Car. 1. the said Trustees Carill c. with Elizabeth conveyed the said premisses to the said Machell and his Heirs and in 1646. the said Machell with the like consent conveyed to Duncombe Heath and Baldwin and their Heirs in Trust that they after the said Simons Debts and Legacies paid should convey to the said Elizabeth and her Heirs or to such as she by Deed or Will appoint That the said Elizabeth raised Monies and paid the said Simons Debts and Legacies and performed the said Will and after the said Machell's death Elizabeth by Will 1650. devised all the said premisses to her Son John Carill for life and after his decease to the first Son of the Body of the said Son lawfully begotten or to be begotten and to his Heirs And if her said Son should not have a Son but one or more Daughters then she devised the premisses to the first Daughter of the Body of her said Son and to her Heirs That the said John Carill in the said Elizabeths life time had a Son whose Name was John who died in her life time and soon after Elizabeth died and her said Son John Carill survived her and never had any other Son after Elizabeth Machells death and the said John Carill died and left the Plaintiff Lettice his eldest Daughter and the Defendant Elizabeth his second Daughter and the Defendant Margaret his third Daughter and the said Lettice the Plaintiff claims the premisses as eldest Daughter But the Defendants Elizabeth and Margaret insist They ought to have their equal parts with the Plaintiff Lettice in the premisses and that the said Simon had not power to make such Settlement or Will but say he was only seised for life of the premisses and that Elizabeth Machell joyned in the Settlement at her Son John Carill's Marriage and if there were such a Will of the said Elizabeth Machell yet the said John Carill had a Son named John Carill Construction of the words of a Will who was Born after the death of the said Elizabeth Machell and lived some time after her death without Issue and by the words of the Will the Trust is determined This Court not being satisfied as to the Birth and death of the said John Carill directed a Tryal on this Issue whether John Carill Grandson of Elizabeth Machell dyed during the Life of the said Elizabeth Machell or after her decease That upon a Tryal on the said Issue it was found that the said John Carill the Grandson outlived the said Elizabeth Trusts determined and therefore the Defendants insist that the Trust limited by the Will of the said Elizabeth Machell is fully determined This Court declared they saw no cause to relieve the Plaintiffs Bill in this matter and so dismist the Bill accordingly Salter contra Shadling 28 Car. 2. fo 66. THat Bryan late Lord Bishop of Winton being possest of the Mannor of Pottern by Lease from the Bishop of Salisbury Will. made to Sir Richard Chaworth in Trust for the said late Bishop of Winton by his Will Devised 200 l. per Annum should be paid out of the profits of the said Lease to William Salter the Plaintiffs late Husband his Nephew during his Life and that the Estate in Law in the said Lease should continue in Sir Richard Chaworth during his Life and the Surplusage of the profits he Devised to the said William Salter to whom he also Devised the Lease after Sir Richard Chaworths death and made Sir Richard Chaworth and others Executors who consented to the said Devise and about 16 Car. 2. William Salter made his Will and as to his Interest in Pottern he devised the same to Trustees that they should permit the Plaintiff to receive the profits during her Widdow-hood on Condition she renewed the Term to 21 years Construction upon the words of a Will once in seven years and if the Plaintiff should Marry or dye then he declared the profits of the Premises to go to his two Daughters Ann and Susanna and the Survivor of them and their Heirs and after their Deaths without Heirs of their Bodies then to his right Heirs and Devised all the rest of his Personal Estate should be to his Executors and Trustees for the benefit of his said Daughters and made the Plaintiff and the said Trustees Executors That the said two Daughters are since dead intestate and the Plaintiff being their Administrator is Intituled to the whole Term and Trust of the said Lease of Pottern as Administrator to her said two Daughters according to the said William Salters Will and the true Exposition thereof the same being devised in manner as aforesaid The defendant Charles Cleaver the Infant being Eldest Son and Heir of Dame Briana Cleaver deceased who was one of the Sisters and Coheirs of the said William Salter and the Defendant Stradlings Wife being his Sister and Coheir insist that according to William Salters Will and for that no present interest in Pottern was Devised to his two Daughters but only Contingent possibility of Interest in case the said Plaintiff should Marry or dye neither of which having since hapned and the said Daughters being since dead the Interest and Term in Pottern ought to come to them as Heirs to the said William Salter and not to the Plaintiff as Administratrix to her two Daughters the rather for that they consented to a decree for Sale of Lands which would have come to them as Heirs at Law to preserve Pottern from Sale for the payment of William Salters debts This Court declared that according to William Salters Will and the disposition therein made of Pottern the whole Interest of the said Term and Trust therein was well passed in the Plaintiff and that the Heirs of Salter can have nothing to do therewith nor have any Interest therein and Decreed the Plaintiff to enjoy the same against the Defendants Still contra Lynn al' 28 Car. 2. fo 195. Bill is to be relieved for 123. Acres of Land THat Philip Jacobson Deceased Settlement being possest of a Capital Messuage or Tenement and Lands by Lease from the Crown Dat. 13 Car. 1. for the Term of 60
consented and agreed to by the Relict and Executrix and so decreed at the former hearing This Court declared Devise of a Personal Estate in Remainder after the death of J.S. is a void Devise and Vests wholy in J.S. she being Executrix That the Devise of the personal Estate to the Plaintiff in Remainder was a void Devise and the said Estate to the Testator immediately thereupon did Attach and vest in the said Alice his Relict and Executrix and the Defendant as her Executor was and is well intituled thereto and decreed accordingly Bredhust contra Richardson 31 Car. 2 fo 695. THat Samuel Russell by his Will gave to his three Daughters Sarah Christian and Elizabeth 540 l. to be divided amongst them viz. For each of them in particular 180 l. but if any one or two of them 540 l. To be divided amongst three Daughters and if one or two dyes without Issue the Daughters to Inherit each other one Marries the Plaintiff and dyes Sans Issue the Plaintiff is intituled to the 180 l. as Administrator to his Wife should dye without leaving a Child that the Daughters should Inherit one anothers Goods Monies Lands and Chattels which the deceased should leave behind them and that the Plaintiff intermarried with the said Elizabeth and that she died without leaving a Child before payment of the said 180 l. The Plaintiff insists That he as Administrator to the said Elizabeh his Wife is intituled to the said 180 l. and her share of the said Goods The Defendant insists That by the words and true intent of the Testator and the said Will the same doth not belong to the Plaintiff but came or in Equity belongs to the Defendants as Surviving Sisters This Court declared the Plaintiff is well intituled to the said 180 l. and decreed accordingly Turner contra Turner 31 Car. 2. fo 102. THat the Plaintiffs Father lent to Ayloff 700 l. and 200 l. at another time for which Ayloff Mortgaged Lands to the Plaintiffs Father and his Heirs with proviso that on payment of 600 l. to the said Plaintiff Father or Heirs then the premisses to be reconveyed to Ayloff that the Plaintiff is Executor to his Father and Brothers and so claims the Mortgages as vesting in the Executors of his Father and not in his Heirs The Defendant being the Son and Heir of the Plaintiffs eldest Brother deceased and Grandson and Heir to the said Plaintiff's Father insists That the Plaintiff and Defendant and others who claimed several shares and parts of the Plaintiffs Fathers personal Estate agreed to a Division thereof amongst themselves and a Division was made and Releases given of each ones demands in Law or Equity to the said Estate and the Plaintiff in particular released and the said Ayloff's Mortgage with the Mony due thereon with other things was set out and allotted to the Defendant by consent of all the parties and received by the Defendant in part of his share and the Plaintiff accounted to the Defendant for the profits of the said Ayloffs Mortgaged premisses received by him and afterwards in 1664 the Defendant had a Decree for the Mortgage Mony against Ayloffs Executor and received the same to which proceedings the Plaintiff was privy and the Defendant says it is unreasonable that the Plaintiff should now make a demand to the said Mortgage to unsetle matters so setled by his own consent but the Plaintiff insists he looked on the premisses at that time to come to the Defendant as Heir and knew not his own Titile thereto and the shares set out came but to 250 l. apiece and Ayloffs Mortgage was worth 800 l. This Court is of Opinion The Heir is decreed to have a right to a Mortgage in Fee and not the Executor that the Plaintiff ought to be relieved and had an undoubted Right to the said Mortgaged premisses and decreed the Defendant to repay all the Mony received by him thereon to the Plaintiff Bois contra Marsh 31 Car. 2. Land Legatees and Mony Legatees decreed to abate in proportion notwithstanding an Agreement to the contrary fo 441. THis Court declared That all the Legatees both Land Legatees and Mony Legatees ought to abate in propotion notwithstanding the Agreement to the contrary and that the said Agreement be set aside Audley contra Dom ' Audley 31 Car. 2. fo 848. THe Bill is to set aside a Lease made by Sir Henry Audley the Plaintiffs Father Power to make Leases if well pursued to the Defendants as Trustees for the Defendant the Lady Audley for 99 years if Henry Francis and Ann Audley Children of Sir Henry by the Defendant the Lady Audley should so long live paying yearly so much Rent as amounts to two parts in three of the yearly Value of the said Houses according to the best improved Value But the Plaintiff insists The said Lease is not made pursuant to the power reserved to the said Henry by a Deed of Settlement made by one Packington in 4 Car. 1. in Consideration of a Marriage between the said Sir Henry and Ann one of the said Packingtons Daughters and Coheirs by which it was declared That the benefit of such power in the said Sir Henry to make Leases was to be for the younger Children of the said Sir Henry by the said Ann his first Wife and the said Lease was not well gained from Sir Henry The Defendant insisted it was made pursuant to the power which was That Sir Henry should have power to make Leases for a provision of any thing he should have or otherwise as he should direct Which Matter was referred to the Lord Chief Justice Hales who declared the power good and that Sir Henry had pursued that power The Plaintiff insisted That the Rent reserved is altogether uncertain and lies only in Averment and that if the Value averred by the Plaintiff should in the least be disproved the Plaintiff would be Nonsuited in any Action And so insisted That it was proper for this Court to fix and establish that for a standing Rent which can be made out to have been two parts of the best improved Value at the time of making the said Lease and that the Rent so to be ascertained the Defendant might Covenant for constant payment thereof This Court on perusal of the said Lease and power and of the Lord Hales Opinion declared the said Lease to be good and sufficient and that unless proof be made of a greater value than the Sum of 290 l. Two parts in three of the improved value reserved as a Rent by a power the constant payment of such a Sum at the time of making the said Lease decreed to be paid whether the premisses rise or fall which hath been constantly paid by the Defendant the Lady Audley and accepted of by the Plaintiff that the said Sum must be taken as two parts of the full value of the premisses at the time of making the said Lease which or the greater
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
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
the Mannor of Warter in the County of York whereby he made himself but Tenant for life the Inheritance vesting in the Plaintiff his Eldest Son and Sir Phillip had Issue by his first Wife the Plaintiff his Eldest Son Robert his Second Son and Mary who Marryed the other Plaintiff the Lord Merrion That Sir Phillip in 1647. by Will devised to his said Son Robert a Rent charge of 40 l. per Annum to be issuing out of the said Mannour and afterwards the said Robert died and the Defendant Dorothy his Relict Administred to the said Roberts Personal Estate so the Plaintiffs Bill is to have Distribution of his Personal Estate The Defendant Dorothy insisted That she as Widow of her said late Husband Robert by the Custom of York is Entituled to a Moiety of the said Personal Estate and by the late Act for setling Intestates Estates the said Defendant is Intituled to the other Moiety and insisted That Sir Phillip having Issue by several Venters which are yet alive or their Representatives they are equally intituled with the Plaintiff Stapleton This Court declared a Distribution of the said Personal Estate according to Law to be made amongst the Plaintiff Stapleton and the Child of the Lord Merrion as also the Brothers and Sisters of the said Robert as well as those of the half-Blood as those of the whole Blood and their respective Lineal Representatives who are to be called into the account And as to the point whether the Lord Merrion and his Child have the Right to his Wives share of the Estate a Case is to be made That the Master to whom the account of the Intestates Personal Estate was referred 36 Car. 2. fo 375. hath allowed to the Defendant Dorothy the Administratrix a Moiety of the said Estate of the said Intestates dying without Issue and hath Distributed the other Moiety amongst the Intestates Kindred Brothers and Sisters Whereas by the Custom of the Province of York she is not only to have a clear Moiety of the Personal Estate of her said Husband so dying without Issue after Debts c. but by the late Statute for setling Intestates Estates she is to have a Moiety of the other Moiety The Plaintiff insists That there was no Colour for the Defendant to have a Moiety of the remaining Moiety the said Statute leaving the Custom as it was without Addition Diminution or Inlargement but the Widow was to have only a Moiety and the other Moiety to be Distributed amongst the next of Kin. This Court for the further satisfaction The Custom of the Province of York Certified by the Arch-Bishop ordered the Lord Arch-Bishop of the Province of York to testifie when a man dies Intestate within that Province without Issue after his Debts c. paid how the Residue is to be Distributed by the Custom of the Province The Bishop certified That in such Cases as aforesaid the Widow of the Intestate by the Custom of the Province had usually allotted to her one Moiety of the clear Personal Estate and the other Moiety hath been Distributed amongst the next of Kin to the Intestate and that had been the constant practice of the Ecclesiastical Courts at York The Plaintiff insisted That the Custom of that Province is excepted out of the Act of Parliament and if it were within the Act it ought to have the more favourable construction on their part because it was made in favour of them and not of the Widow and Administratrix who before the said Act usually went away with the whole Estate unless more particular instances prevented This Court declared The Widow by the Custom of the Province of York shall have the Moiety but not another Moiety by the Act of Settlement of Intestates Estates They could not expound the Act to give the Defendant more than a Moiety that being the proportion allotted to her by the Custom and also by the Act if it had not been a Case within the Custom which Custom is confirmed because it appoints the same kind of Distribution with the Act and it would be a strein to give her more than a Moiety part by the Custom and part by the Act and refers to the Masters Report made in this Cause Coventry contra Hall 34 Car. 2. fo 330. THat Sir Thomas Thynn Bill for mean profits Father both of Sir Henry Frenderick Thynn and Sir James Thynn conveyed on Sir Henry Frenderick and his Heirs Males of his Body expectant after the decease of him the said Sir Thomas the Mannour of Hempsford and other Lands and soon after dyed and the said Sir Henry Frederick possessed the said premisses but Sir James Thynn pretending the said Conveyance was Defective Sir Henry Frederick in Oct. 1650. obtained a decree that the said Sir Henry Frederick and the Heirs of his Body should enjoy the said premisses against the said Sir James Thynn and his Heirs according to the intent of the said Settlement That Sir James Thynn insisting That Sir Thomas was but Tenant for life and not Seized in Fee of the premisses having suffered Recoveries so that the Freehold was in the said Sir James or some other for his use by virtue whereof he received the profits which Sir Henry Frederick ought to have received That Sir Henry not being able to recover the said mean profits at Law by reason of the defect in the said Conveyance which is now supplyed and setled by the said decree and Act of Parliament so that the said Sir Henry hath the right to the said profits and writings So the Bill is to be relieved for the same and to have an account thereof The Defendant insisted That there ought to be no account of the mean profits the demand thereof being very old and is grounded on a decree in a former Cause whereby a defect in a Conveyance under which the Plaintiff claims was supplyed and there is no provision in the said decree for mean profits though the Bill originally was such as this Court might have decreed mean profits and when the Decree was made it was not granted nor any farther relief than only possession and the possession hath been so unconstantly in any one person that it is very difficult especially after so long time against an Executor that is no way privy to the accounts of the Testator The Plaintiff insisted That though the demand on the decree is Antient and a prosecution hath been for the same ever since and the Right being determined the Plaintiff ought to have an account of the mean profits as the Consequences of that Right though the Original Bill might pray an account and the decree be silent as to that point This Court declared That considering this case as if there were no Act of Parliament the Plaintiff hath a right to demand an account upon an equity that ariseth on the Marriage Agreement and Settlement made in pursuance thereof notwithstanding the length of time for that the Plaintiff
or their Testator could not come sooner than when the Title was cleared Mean profits Decreed tho' a long time since and the Objection raised from the shortness of the former decree is not material to prejudice the Plaintiffs demand for that there could not then be any decree for profits the said Sir James pretending Title as Tenant in Tail Account for the mean profits from the time the right accrewed and that Sir Thomas was but Tenant for life so now the Right being cleared the Plaintiff ought to have an account of the mean profits from the time the Right accrewed and decreed accordingly The Defendant Appealing from the said Decree made by the Lord Chancellor Finch to the Lord Keeper North the Case was heard ab integro and the Lord Keeper on hearing the decree in 1650. and the decree of the Lord Finch read declared that there was nothing in the case but the loss of time and though the Decree in 1650. The mean profits tho' omitted in a former decree decreed now was silent as to the mean profits yet the same ought to be no Objection to the Right and though it was omitted by the Decree in 1650. yet it ought in Justice to have been decreed for the mean profits as well as for the right of the Title it being an accessary to the decree and it ought to be judged nunc pro tunc there being no Bar against it and confirmed the Decree made by the Lord Finch Girling contra Dom ' Lowther al' 34 Car. 2. fo 148. THat Sir Thomas Leigh deceased late Father of the Defendants John Thomas and Woolley Leigh became indebted to Edmond Girling deceased in several Sums of mony by Bonds and the said Girling became bound for the said Sir Thomas for several great Sums of mony against which Securities Sir Thomas gave the said Girling Counterbonds and in Hillary Term 28 Car. 2. Sir Thomas gave a Judgment of 1000 l. to the said Girling for the payment of 530 l. and in Aug. 1669. Sir Thomas made his last Will in writing and thereby devised to the Defendants Sir John Lowther John Currance and Edward Badby Executors of his said Will several Lands Lands and Tenements for the payment of his debts and to be by them sold for that purpose That the Swan Inn in St. Martins Lane being sold there ariseth a Question touching the Mony raised by such Sale whether it were well applied or not The Case being viz. That Sir Thomas Leigh upon his Marriage with Hannah Relfe Daughter of Anthony Relfe whilst he was under Age by Articles previous to the said Marriage with the said Hannah agreed to settle on himself and the said Hanuah his intended Wife and such as they should have between them Lands of 700 l. and in Consideration thereof the said Anthony Relfe was to settle and did settle upon the said Thomas and his Heirs Lands of 200 l. per Annum whereupon Sir Thomas Leigh July 1661. makes a Settlement upon himself and the said Hannah his intended Wife and their first second and other Sons in Tail his Mannor of Addington and other Lands in Addington and several Lands in Com' Surrey and Keut That afterwards in May 1665. Sir Thomas Leigh mortgaged to Mr. Peck for 2000 l. several Lands in Middlesex and Norfolk and afterwards in December 1665. those Lands and the moiety of the Swan Inn in St. Martins and the Reversion thereof were granted to Trustees upon several Trusts which by Deed 15 June 1668. appears to be performed and satisfied and thereupon on the same 15 June 1668. the said premisses were mortgaged to Sir John Lowther for 2500 l. which 2500 l. was raised and paid to Sir John Lowther out of the profits and by sale of the said Swan Inn which was formerly by voluntary Conveyance dated and setled by the said Sir Thomas Leigh upon the two Defendants Thomas and Woolley Leigh for Natural love and affection Voluntary Settlement That Sir John Lowther in April 1679. assigned the said Mortgage by conveying to one Burton and others the Mannor of Thorpe in Surrey and Shoelands and other premisses in Trust for the payment of such of the debts of Sir Thomas Leigh as should any ways incumber or disturb the Purchaser of the Swan Inn which said Lands are sufficient to pay the Plaintiffs debts and the Testators Ingagement being 1331 l. which debt is to be paid the Plaintiff by Decree of this Court The Defendants the Leighs insist That the Mony raised by the sale of the Swan Inn although paid to redeem the other Estate in mortgage to Sir John Lowther ought not to be applied so that the Land ought to be discharged of the Mortgage-mony or of what was paid to redeem the same but the said Lands ought still to be a Security for the said Mony to the use of the younger Children for whose benefit the said Swan Inn was setled and although the said Settlement was voluntary yet the same being a provision for younger Children ought not to be adjudged fraudulent as to a subsequent Judgment which the Paintiffs is or however not as to a subsequent voluntary Devise of their Father under which only the Creditors by Bond come in and therefore as to them the said mortgaged Lands ought to be charged with the said Mony raised by the sale of the said Swan Inn with Interest since it was paid to redeem the said Estate precedent to any benefit any Creditor by Bond can have out of the said Lands This Court declared Voluntary Conveyance though a provision for younger Children not to prevent satisfaction of subsequent Judgments That the said voluntary Conveyance ought not to stand in the way to prevent satisfaction of a subsequent Judgment for good Considerations and that the Monies due on the Plaintiffs Judgment and the Monies raised by sale of the Swan Inn was well applied to discharge the Mortgage on the other Estate whereby the mony due on the Judgment with Interest may be the more speedily raised by sale thereof and the mony raised by sale of the said Inn after the Judgment satisfied with Interest ought to stand secur'd for the benefit of the younger Children Mony applied to take off Mortgages satisfie Judgments and after to pay Bond-Creditors and be raised by sale of the said Estate and by Rents and Profits in the mean time precedent to the other Creditors not on Judgment and after the said Judgment and provision for the younger Children satisfied the residue to be applied to the other Creditors and decreed accordingly Comes Arglas contra Henry Muschamp 35 Car. 2. fo 524. THat Thomas Relief against over-reaching Bargains first Earl of Arglas the now Plaintiffs Father and William Earl of Arglas the Plaintiffs Brother were seised in Fee of the premisses in question and made divers Settlements thereof by which in case of failure of Issue Male of the said William the said Estate should come to
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
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
Submission of the parties and the Reference not directed by this Court the Award was void and ought not to be performed and demurred by the Plaintiffs Will. The Master of the Rolls ordered Presidents and upon reading of the Award declared he saw no Cause to relieve the Plaintiff but dismissed the Bill This Cause was Re-heard by the Lord Chancellor Jefferies who declared he saw no cause why the said Award should be impeached but it was fit that the same should be performed being in part executed and assented unto and decreed the same to stand confirmed and the Defendant to perform the same REPORTS OF CASES Taken and Adjudged in the COURT of CHANCERY In the Reign of King JAMES II. Attorney General contra Vernon 1 Jac. 2. fo 388. THE scope of the Information in this Cause being to set aside Letters Patentsobtained by the Defendant Vernon Information against Patentees of Needwood Forest in the Names of the Defendants Browne and Boheme in nature of a Grant or Contract under the Seal of the Dutchy of Lancaster of the Honour of Tudbury and Forest of Needwood at a great undervalue wherein his late Majesty was surprized His Majesties Attorney General by Information setting forth That his late Majesty being seised in Fee in right of his Crown as parcel of his Dutchy of Loncaster of the said Honour of Tudbury of the value of 2000 l. per Annum and also of the benefit of Timber Trees Woods c. of the value of 30000 l. whereon the Defendants commit Wast pretending Title to the premisses by Grant of the Crown from his late Majesty Grant obtained per Surprize whereas such Grant was unusually obtained and by surprize for that about Sept. 1683. for some small Sum and getting some interest in Ground at Sheerness to the value of about 500 l. and endeavouring to value the Lands at Sheerness at 3000 l. in October following they did prefer a Petition for the said Grant and obtained a Reference thereof to Sir Thomas Chichley Chancellor of the Dutchy and hastily obtained a Report in November and within two days after the Report a Warrant was signed for passing the Grant though endeavours were used to stop it by Command from his late Majesty and the Lords of the Treasury the 19th of the same November and particular Application made to the Chancellor of the Dutchy he then denying he knew thereof and it was not known that any Grant was thereof till the particular thereof was found in a Scriveners Shop about a Month after the passing thereof contrary to the course of the Dutchy there being no such Grant yet Registred or Inrolled to the prejudice of his Majesty and the Nobility and others having dependency there the said Defendant having given untrue Particulars of the most profitable Matters thereof to the value of some Thousand pounds wherefore the said Grant ought to be delivered up to be Cancelled The Defendant Vernon insisted That the Defendants having long Leases of the said premisses unexpired of a great yearly Rent and also Offices within the premisses upon which hath been expended great Sums of Mony in Buildings and Repairs whereby his Majesties antient Rent hath been much increased and the Defendant Vernon being informed of some endeavours used to obtain the Reversion in Fee of the said premisses he petitioned his Majesty in September 1683. in the Name of the other Defendant Browne to prevent a Merger of the said Leases and on the 29th of the said September obtained a Reference to the Chancellor of the Dutchy of Lancaster and 19 November 1683. the said Chancellor made a Report and thereupon 20 Nov. 1683. his Majesty signed a Warrant dated the 19th of the same Month authorizing the Chancellor to make a Grant of the premisses That thereupon the Defendant Vernon by Deed 20 Nov. 1683. between his late Majesty of the one part and himself on the other did sell unto his Majesty all those 4â— Acres in the Isle of Sheppey whereon his Majesty's Fort of Sheerness is built That in consideration thereof and 7000 l. paid by the Defendant for his Majesty's use his said Majesty 21 Nov. granted unto the Defendants Browne and Boheme iâ— Trust for the Defendant Vernon all the said premisses And the said Defendant Vernon insists That the said Patent passed regularly and is effectual in Law and ought not to be impeached the impeachment whereof being in derogation of other his Majesties Grants and the Consideration is equivalent to the Grant his Majesties Favour being an Ingredient thereunto and the premisses mightily over-valued by the Surveyor and the said Patent was leâ—â— with a Scrivener whereon to raise 10000 l. but the same was not thought a sufficient Security for such a Sum That the Defendant Browne for 10300 l. hath purchased the said premisses of Vernon and insists on the said Grant as good in Law and is advised that this Court will be tender in examining the Methods of the passing the said Grant when it hath received the allowance of the proper Officer by having the Seal affixed to it His Majesties Council insisted Information by English Bill proper to relieve against a Patent Patent not Reversable per Scire facias That this Suit is properly brought in this Court by English Bill to be relieved against the said Grant or Patent and that no Scire facias can be brought in the Dutchy or in this Court for the Reversal thereof and if a Bill or Information as this case is should not be admitted his Majesty would be in a worse condition than any of his Subjects considering the great over-value and the quick hasty and unusual manner of passing the Pattent contrary to all Patents of that nature it passing neither by Privy Seal Privy Signet or any immediate Warrant but the Chancellor of the Dutchy acted therein in all Capacities and passed the Grant after Notice and fresh pursuit by his late Majesty for recalling the same and express Prohibition that no Mony should be received This Court assisted with several Judges were all clear of Opinion That this Suit was proper by English Bill and that the Patent could not be annulled or made void by Scire facias or otherwise at the Common Law and the Bill being to have remedy for his Majesty against Fraud Surprize and Deceit which their Lordships declared was made out and that the King was most grosly deceived and abused as to the value and that therefore his Majesty ought to be relieved in this Court or otherwise he would be remediless and so in a worse condition than any of his Subjects in a case of this Nature and this Court with the said Judges taking into consideration the excessive over value which was offered to be made good by the Surveyor the surprize and deceit and the speedy and unusual passing the said Grant and that no Mony was paid till the Grant was ordered to be stopt and directions for this prosecution which was before Livery
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