Joynt Creditors That there can be no division of the Joynt Estate whereby to charge any part thereof with the private debts of either party and till the Joynt debts are paid and till division be made of the Surplus both parties are alike interessed and every part of the said Joynt Estate that the Commissioners have no power by the Commission to Administer an Oath to the Plaintiffs for proof of their debts they claiming debts from the said Widdows only and the Commission is against Widdows and Berman Joyntly and not severally and therefore cannot admit of the Plaintiffs Creditors This Court declared That the Estate belonging to the Joynt Trade as also the debts due from the same ought to be divided into Moieties and that each Moiety of the Estate ought to be charged in the first place with a Moiety of the said Joint debts and if there be enough to pay all the debts belonging to the Joynt Trade with an Overplus then such Overplus ought to be applied to pay particular debts of each Partner but if sufficient shall not appear to pay all the Joynt debts and if either of the Partners shall pay more than a Moiety of the Joynt debts then such Partner is to come in before the said Commissioners and be admitted as a Creditor for what he shall so pay over and above his Moiety and decreed accordingly Charles Howard contra le Duke de Norfolk al' 34 Car. 2. fo 722. THe Plaintiff by his Bill seeks to have Execution of a Trust of a Term of 200 years of the Barony of Grostock The Case was this The Earl of Arundel the Duke of Norfolks Father by Lease and Release Perpetuities or Entailing a Term for years with Remainders over Anno 1647. setled the Barony of G. and other Lands to himself for life then to the Countess Elizabeth his Wife for life and after her decease there is a Term limited to the Lord Dorchester and other Trustees for 200 years under a Trust to be declared in a deed of the same date with the Release and the Limitation of the Inheritance after the Term of 200 years is first to Henry Howard now Duke of Norfolk and the Heirs Males of his Body then to Mr. Charles Howard the now Plaintiff Brother of the said Henry and so to all his Brothers Successively in Tail Male remainder over Then by the said other Deed the Earl declares the Trust of the Term of 200 years and that deed in the reciting part declares that it was intended the said Term should attend the Inheritance and the profits should go to such persons and in such manner as was therein after limited viz. to Henry Howard now Duke of Norfolk and the Heirs Males of his Body so long as Lord Thomas Lord Maltrevers Eldest Son of the said Earl of Arundell or any Issue Male of his Body should be living but in case he should die without Issue Male in the life-time of Henry Howard not leaving his Wife enseint with a Son or in case after the death of Thomas without Issue Male the Honour of the Earldom of Arundel should descend to Henry Howard then Henry Howard and his Heirs to be excluded of the Trust and then it should be to Charles the Plaintiff and the Heirs Males of his Body remainder in like manner to other Brothers After this the Contingency doth happen for Thomas Duke of Norfolk dies without Issue and the Earldom of Arundel as well as the Dukedom of Norfolk descended to Henry now Duke of Norfolk by Thomas his death without Issue presently upon this the Marquess of Dorchester the Surviving Trustee Assigns the Term to one Marriott he Assigns it to the now Duke of Norfolk and the Duke suffers a Recovery to the use of him and his Heirs and the Plaintiffs Bill is to have execution of the Trust of this Term to the use of himself and his Heirs Males of his Body The Defendants insist That by the Assignment by Marriott to my Lord Duke Henry the Term was Surrendred and quite gone that the Common Recovery which barred the remainders which the other Brothers had would also be a Bar to the Trust of this Term and that the trust of a Term to Henry and the Heirs Males of his Body until by the death of Thomas without Issue the Earldom should descend upon him and after that to Charles and the Heirs Males of his Body was a void Limitation of the remainder to Charles The Plaintiff insists Though the Term by the Survivor is gone and Merged in the Inheritance yet the Trust of that Term remains in Equity That this is not a Term that attends the Inheritance but it s a Term in gross and so not barred by the Recovery and that the Limitation of the remainder in Contingency is good in Law and Relief ought to be had in this Court The Lord Chancellor Nottingham the Case being of great Consequence calls the Judges to his Assistance viz. the Lord Chief Justice Pemberton the Lord Chief Justice North and the Lord Chief Baron Mountague and they made one single point in the case Whether this Contingent Trust of a Term limited to the Plaintiff Charles and the Heirs of his Body upon the dying of Thomas without Issue Male whereby the Honour did descend to Henry be good in point of Creation and Limitation for as for the Recovery if this be not a good Limitation in point of Creation the Recovery will do nothing so that supposeth it to go along with the Inheritance and if this take effect then it will suffer no prejudice by the Recovery And as for the Assignment by Marriott to the Duke if this Court decree it for the Plaintiff then it is a Breach of Trust and then he must answer for it and so must the Duke for it is a Surrender to a person who had notice of the Trust If for the Defendant then it is of no weight So that the whole rests upon the first single point viz. whether it be a good Limitation upon the Contingency to Charles or as they call it Springing Trust a springing Trust And the said three Judges were all of Opinion that it was a void Limitation and that it ought to be Decreed for the Defendant They said Term in gross and a Term attending the Inheritance the difference there is great difference as to the Limitation of Terms that are in gross and Terms that attend the Inheritance as to Terms in Gross they are not capable of Limitation to one after the death of another without Issue but in Termsattendant upon an Inheritance there may be such a Limitation if the Inheritance be so limited and not else Now the Term is capable of a Limitation to Henry and the Heirs Males of his Body and for want of such Issue to Charles and the Heirs Males of his Body because it hath an Inheritance to support it But now to put another limitation upon it that upon the
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 Second Part OF REPORTS OF CASES Taken and Adjudged in the Court of Chancery FROM The 20th Year of King Charles II. TO THE First Year of Their present Majesties King William and Queen Mary BEING Special CASES and most of them Decreed with the Assistance of the Judges and all of them referring to the Register Books wherein are setled several Points of Equity Law and Practice To which is added The late Great CASE between the Dutchess of Albemarle and the Earl of Bathe LONDON Printed by the Assigns of Richard and Ed Atkyns Esquires for Iohn Walthoe and are to be sold at his Shop in Vine-Court Middle-Temple MDCXCIV THE PREFACE TO THE READER THE Favourable Entertainment which the First Part of these Reports met with at your Hands hath encouraged me to Present the Remainder of them to Your perusal The acceptance whereof I shall not much doubt when I consider that besides the Charm of Novelty the Cases were heard and decreed with great Deliberation and Solempnity in our own times by Persons very Eminent and Famous in their Professions and upon that account they bear with them their own Letters of Recommendation For I cannot imagin that the Chancery Causes which if of any considerable weight as usually they are being generally mixt with Law should receive a closer and more satisfactory Determination when they are Pronounced from a Cleryg man or a bare States-man than from one of that Honourable Profession To render them the more intire I have abridged the great Case of the Duke of Norfolk which hath solidly setled the perplexed Points of Perpetuities It is true The Lord Chanceller Finch differed in Opinion at that time from the Learned Judges and he was in pain to do it yet certainly there is no Common Lawyer let him Espouse his Notions never so dearly but must both admire and acquiesce in the Equity of that Case I have added an Abstract of the famous Case of Com' Mountague contra Com' de Bath with the Judges and Lord Keeper's concurrent Opinions and their Reasons briefly recited but that Cause by Appeal now depending before the Highest Judicature in the Nation and waiting the Decision of the Honourable House of Peers I do not think fit to mentiom more of it In many other excellent and useful Cases here Reported tho' they have been Argued and decreed in a Court of Equity yet a Common Lawyer may find many Points agreed and setled to good satisfaction respecting those two great Cargoes of Law-business WILLS and SETTLEMENTS But Lastly to obviate an Objection which causeth some quarrel with us How comes it to pass that after such frequent and solemn arguing of Causes in all their Niceties and Circumstantials that Decrees are so often Reverst by succeeding Chancellors I must Reply to this as that Learned Chancellor did in the above mentioned Case of the Duke of Norfolk I must be saved by my own Faith and must not Decree against my own Conscience and Reason Besides by a further Penetration into the Series of Transactions the Intentions of the Parties and the like perhaps something may arise which was not thought of or not thoroughly considered But the true and main Cause of the variety of our Opinions is the Natural Imperfections of our Faculties Uncertainty even in our own Judgments is incident to our Nature And I cannot express my Notion better than in the bold Words of that Ingenious Canonist Gomez in Regula de Triennali possessore cap. 5. Non est inconveniens judicium esse uno tempore justum postea ejus contrarium justius Et hoc malum imponi videtur mortalibus in poenam ut eorum Opiniones secundum varietatem temporum senescant intermoriantur aliaeque diversoe renasrantur deinde pubescant Talis enim est humani juris disciplina ut nulla in ea Opinio eodem statu diu stare possit Dies diei eructat verbum nox nocti indicat scientiam THE TABLE OF THE CASES A ALexander contra Alexander p. 37 Audley contra Dom ' Audley p. 156 Annand contra Honywood p. 179 Com' Arglas contra Muschamp p. 266 Attorney General contra Vernon p. 353 Ash contra Rogle p. 387 B BEauchamp contra Silverlock p. 9 Brabant contra Perne p. 36 Boulter contra Chester p. 55 Barthrop contra West p. 62 Boucher contra Antram p. 65 Broud contra Gipps p. 98 Bowyer contra Bird p. 99 Burgrave contra Whitwick p. 131 Burne contra Tynt p. 148 Brodhurst contra Richardson p. 153 Dom ' Blois contra Blois p. 162 Dom ' Bruce contra Gape p. 197 Barker contra Hill p. 218 Bonnington contra Walthall p. 219 Benson contra Bellasis p. 252 Bradbury contra Ducem Bucks p. 286 Beckford contra Beckford p. 359 Berny contra Pitt p. 396 C COm' Castlehaven contra Vnderhill p. 46 Chambers contra Greenhill p. 66 Croster contra Wister p. 67 Crip contra Bluck p. 88 Cotton contra Cotton p. 138 Civill contra Rich p. 141 Carr contra Bedford p. 146 Coles contra Hancock p. 210 Com' Craven contra Knight p. 226 Coventry contra Hall p. 259 Carvill contra Carvill p. 301 D DArrel contra Whitchcot p. 59 Dethick contra Banks p. 92 Dowse contra Percival p. 248 Dom ' Daeres contra Chute p. 245 Durston contra Sandys p. 398 Dixon contra Read p. 21 Com' Dorset contra Powle p. 411 E EVery contra Gold p. 1 Eyre contra Good p. 34 Episcop ' Sarum contra Nosworthy p. 60 Elvard contra Warren p. 192 Eyre contra Hastings p. 273 F FRy contra Porter p. 26 Floyer contra Hedgingham p. 56 Feake contra Brandsby p. 101 Fenwick contra Woodroofe p. 363 G GErman contra Dom ' Colston p. 137 Dom ' Grey contra Colvile p. 143 Green contra Rook p. 166 Glenham contra Statvile p. 193 Girling contra Dom ' Lowther p. 262 Griffith contra Jones p. 394 H HAle contra Aston p. 35 Hunton contra Davies p. 44 Hunt contra Jones p. 56 Hooker contra Arthur p. 62 Howard contra Hooker p. 81 Harmer contra Brook p. 92 Hodkin contra Blackman p. 103 Hethersel contre Hales p. 158 Howard contra Duke of Norfolk p. 229 Hall contra Dench p. 297 Hallily contra Kirtland p. 360 I JOlley contra Willis p. 137 Jones contra Henley p. 361 K DOm ' Kemp contra Kemp p. 63 Knight contra Atkyns p. 400 Kettleby contra Lamb p. 404 L LAngton contra Tracy p. 30 Lance contra Norman p. 79 Leech contra Leech p. 100 Lawrence contra Berny p. 127 Lambert contra Greene p. 213 Lucking contra Rushworth ibid. Langton contra North p. 271 M MOsely contra Maynard p. 17 Macklow contra Wilmot p. 18 Malpas contra Vernon p. 45 Monnius contra Dom ' Monnius p. 68 Mosely contra Mosely p. 105 Morgan contra Scudamore p. 134 Maddocks contra Wren p. 209 Magistr ' c. Vniversity Oxon ' contra Foxcroft p. 244 Massingberd contra Ash p. 275 Moore contra Hart p.
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
Mudghill as well as the other Lands and made other particular provisions further which shews he did not intend that for her for if he had he would not have Revoked the former Trusts as to that by which she would have been intituled as Heir especially when he hath devised all the Surplus of his Estate which involves Mudghill as well as the rest amongst his own three Daughters and her equally nor doth it any where appear that Mudghill is in any sort exempted from Satisfaction of the Creditors nor could it so be by the said deed made by Sir Olando Bridgman who best knew the intention of all Parties in this matter But the Plaintiffs insisted That the said Duke could not intend Mudghill should be conveyed to the uses declared in the Will for that the same is to be conveyed to the said Lord John and the Heirs Males of his Body which is an Estate of Inheritance and he had power by a common Recovery to have bound the remainder and the reversion after the Estate tale is not Assets in Law and therefore cannot be conceived for the payment of his debts and the rather for that he recites deeds in 1652. and April 1654. and directs the Trustees therein to convey all his Lands and Mannours in those deeds to his Dutchess and others as to the Mannour of Mudghill as before he declared by his Will and as to all the rest of the Mannours he declared for the payment of his Debts so that all the rest excludes the Mannours of Mudghill and upon the whole Will it doth appear the Duke intended no Reversion should pass but Reversions after Estates for life or years and therefore this Reversion of Mudghill which is after an Estate Tail doth not pass and if it had been intended to pass he would have limited it to the said Lord John for life without remainder to his first or other Sons in Tail for he had before given him a better Estate in Mudghill to him and the Heirs of his Body and the Trustees were not to settle Mudghill accordingly until the same fell in possession the same being yet for Pleydalls life This Court on reading the several Deeds and Will declared That although the Lord John might possibly have an Estate Tail in him and doct it but he not doing it this Court can take no notice of it though probably he did forbear to do it because Duke William had Signified his desire Reversion after an Estate in Tail subject to Trusts for payment of debts that he should not have an Estate executed to him till it should fall in possession and not before except the Trustees pleased But the case must be taken as it doth appear before the Court that is Mudghill was once liable to the payment of the Debts of Duke William and tho' 't is pretended that the Will hath taken out Mudghill yet the said Will doth only take out an Estate Tail but the Revesion thereof when the same falls in possession is subject to the same Trust and goes in company with the other Reversions and the same is legally conveyed and doth pass in the general words and therefore this Court is of Opinion that the Reversion of Mudghill is part of the unrevoked Estate and that the Lord Bridgman did well when he made the said Conveyance to the Lady Dutchess and that when the 19100. l. and the said other debts are paid to which Mudghill is as well liable as the other Mannours and Lands then the Trustees ought to convey all the premisses in Fourths and decreed accordingly Maddocks contra Wren 32 Car. 2. fo 22. THe question in this Cause is Mortgage Account with what profits the Defendant Wren shall be charged in ease of the Plaintiff who claims the premisses in question by virtue of a second Mortgage and is admitted to a Redemption on payment of what shall appear due to the Defendant Wren who hath the prior Mortgage The Plaintiff insists That the said Mortgage being of a Lease and the Defendant Wren having possession by Attornment of Tenants he ought to have received the profits whereby his Mortgage would have been fully satisfied yet he permitted the other Plaintiff Dorothy Wife of the Plaintiff Maddox the Mortgager to receive the same and therefore the said Wren ought to be charged whereby the Plaintiff may be let in to have Satisfaction of his Debt This Court declared The prior Mortgagee upon Redemption by the second Mortgagee shall be charged with the profits by whom soever Received after the Second Mortgage That the Defendant Wren ought to be charged with the Rent whether received by the Wife or any other Person after the Plaintiffs second Mortgage made but all received by her before the said second Mortgage he ought not to be charged Coles contra Hancock 32 Car. 2. fo 112. THat Benjamin Coles the 11th of June Revocation of a Will 1678. made his Will in writing and thereby gave to and amongst his then Children naming them viz. Benjamin Samuel Mary and Hannah Portions and appointed his Real Estate to be Sold and added to his Personal Estate and made Elizabeth his Wife his Executrix and the Testator being a Melancholy Person and fearing he might forfeit his Estate by making himself away to prevent a forfeiture by deed the 14 of June 1678. made over all his Personal Estate to Trustees first to pay his debts then to pay some Legacies and all the rest of his Estate to be divided amongst the aforesaid four Children That the Testator afterwards died a natural death but before his death had another Child viz. Sarah who is not provided for either by the said Will or Deed. The question is whether the said Will be Revoked by the said Deed of Trust that if it be Revoked then the said Sarah insists to have her share of her Fathers Estate and that he ought to be looked upon as dying Intestate and at least the Personal Estate ought to be distributed by the Act for distributing Intestates Estates and the deed ought not to stand in her way for that great part of the Estate did consist in debts which were made after the said deed and did not pass to or was vested in the said Trustees and that it is against Natural Right and Conscience that her Father leaving a considerable Estate she should have nothing of it This Court on reading the said Deed and Will is of opinion A Deed of Trust no Revocation of a Will that the said deed of Trust is no Revocation of the said Will being not made with intent to revoke the same but only to prevent the forfeiture in a case which never hapned and Decreed the same to be set aside and the Personal Estate to be distributed according to the Will and the remainder to be divided amongst the four Children Benjamin Samuel Mary and Hannah Estate Devised to be sold for increase of his Childrens Portions and a Child
dying of Thomas without Issue whereby the Earldom shall descend this shall go over to Charles that cannot be for it hath no Freehold to support it and so it s a Term in gross further there cannot by the Rules of Law or Equity be a Remainder for years of a Term limited after an Estate Tail neither directly nor upon Contingency as in Burges's Case but the Law will allow a remainder directly upon an Estate for life so likewise upon a Contingency if that were to happen during the Continuance of the particular Estate But this case is a step further and not to be allowed they relied chiefly upon Child and Bayles Case which was put thus by Chief Baron Mountague a Devise by A. of a Term to William his Eldest Son and his Assigns and if he die without Issue then to Thomas his youngest Son It was Judged in the Exchequer Chamber to be a void remainder because thereby a perpetuity would ensue though it was argued in that case that it was given upon a Contingency to the younger Son which would soon be Determined and end in a short time Chief Baron Mountague put this for Law a Term may be limited to one and the Heirs Males of his Body upon a Contingency to happen first with Limitation over if that Contingency do not happen it is a good Limitation as if a Term be limited to the Wife for Life and then to the Eldest Son if he over-live his Mother and the Heirs Males of his Body the remainder over to a younger Son if the Eldest Son dye in the life of the Mother the Limitation to the second Son may be good but if there be an Instant Estate Tail created of a Term tho there be a Contingency as to the expectation of him in remainder yet this is such a Total Disposition of a Term as after which no Limitation of a Term can be and so the Judges were of Opinion that the Plaintiff had no Right to the Term but the decree ought to be for the Defendant The Lord Chancellor Nottingham differed from the Judges and Decreed for the Plaintiff He put some steps or Preliminaries which he agreed with them and which were clear 1. That the Term in question though it were attendant on the Inheritance at first yet upon the hapning of the Contingency it s become a Term in gross 2. That the Trust of a Term in gross can be limited no otherwise in Equity than the Estate of a Term in gross can be limited in Law 3. The legal Estate of a Term for years whether it be a long or a short Term cannot be limited to any Man in Tail with the remainder over to another after his death without Issue this is a direct perpetuity 4. If a Term be limited to a Man and his Issue and if that Issue die without Issue the remainder over the Issue of that Issue takes no Estate and yet because the remainder over cannot take place till the Issue of that Issue fail that remainder is void too Reeves Case 5. If a Term be limited to a Man for his life and after to his First Second and Third Son in Tail Successively and for default of such Issue the remainder over though the Contingency never happen yet the remainder is void though there were never a Son born to him that looks like a perpetuity Sir William Buckhursts Case 6. One Case more and that is Burgesss Case A Term is limited to one for life with Contingent remainders to his Sons in Tail with remainder over to his Daughter though he had no Son yet because it was foreign and distant to expect a remainder after the death of a Son to be born without Issue that having a prospect of a perpetuity was adjudged void 7. If a Term be Devised or Trust of a Term limited to one for life with twenty remainders for life Successively and all the Persons in Esse at the time of such limitation these are all good remainders 8. A Term is Devised to one for 18. years after to C. his Eldest Son for life and then to the Eldest Issue Male of C. for life though C. had not any Issue Male at the time of the Devise or death of the Devisor but before the death of C. it s good being a Contingency that would speedily be worn out Cotton and Heaths Case for there may be a Possibility upon a Possibility and a Contingency upon a Contingency and in truth every Executory devise is so and therefore the contrary Rule given by Lord Popham in the Rector of Chedingtons Case is not Reason These things were agreed by all But the Point is The Trust of a term for 200 years is limited to Henry in Tail provided if Thomas die without Issue in the life of Henry so that the Earldom shall descend upon Henry then to go to Charles in Tail and whether this be a Limitation to Charles in Tail is the Question My Lord Chancellor conceived it a good Limitation as a springing Trust to arise upon a Contingency and which is not of a remote or long Consideration As for the Legal Reasons of this Opinion they were these 1. Many Men have no Estates but what consist in Leases for years Now it would be absurd to say That he who has no other Estate than what consists in Leases for years should be uncapable to provide for the Contingencies of his own Family though they are directly in his immediate prospect he shall not make provisions for Wife and Children upon Marriage 2. It was the Opinion of the Lord Chief Justice Pemberton That had it been thus Penned it had been good If Thomas die without Issue Male living Henry so that the Earldom descend upon Henry then the 200 years limited to him and his Issue shall cease but then a new Term of 200 years shall arise and be limited to the same Trustees for the benefit of Charles in Tail Now what difference is there why a man may not raise a new springing Trust upon the same Term as well as a new springing Term upon the same Trust It is true in 6 Ed. 6. in the time of Lord Chancellor Rich all the Judges delivered their Opinion If a Term of years be devised to one provided if Devisee die living I. S. then to go to I. S. is absolutely void But in 19 Eliz. Dier fo 277 328. it was held by the Judges to be a good Remainder Executory Remainder and that was the first time that an Executory Remainder of a Term was held to be good As for Child and Bayles Case the Case is truly Reported by Crook A Term of 70 years is devised to Dorothy for life then to William and his Assigns all the rest of the Term provided that if William die without Issue living at the time of his death then to Thomas which is in effect the present Case but there was more in it William had the whole Term to him and his
Assigns Dorothy was Executrix and granted the Lease to William And the Record goes further After the death of Thomas without Issue it was to go the Daughter which was a plain affectation of a Perpetuity but however this Case is contradicted by other Resolutions Cotton and Heath before cited and Wood and Sanders in this Court which was this a long Lease is limited and declared thus To the Father for 60 years if he lived so long then to the Mother for 60 years if she lived so long then to John and his Executors if he survived his Father and Mother and if he died in their life time having Issue then to his Issue but if he die without Issue living the Father or Mother then the Remainder to Edward in Tail John died without Issue in the life time of the Father and Mother It was Resolved by Lord Keeper Bridgman assisted by two Judges That the Remainder to Edward was good The whole Term had vested in John if he had survived yet the Contingency never hapning and so wearing out in the compass of two Lives in being the Remainder over to Edward might well be limited upon it Object Where will you stop if not at Child and Bayles Case Resp Every where where there is apparent danger of a Perpetuity but so is not this Case The Equitable Reasons were 1. It was Prudence in the Earl to take care that when the Honour descended upon Henry a little better support should be given to Charles who was the next Man and trod upon the Heels of the Inheritance 2. It was very probable and almost morally certain that Thomas would die without Issue he being not of a good state of Body or Mind and while such they were circumspect that he should not Marry 3. It s an hard thing for a Son to tell his Father That the provision he has made for his younger Brothers is void in Law But it is much harder for him to tell him so in Chancery for there no Conveyance is ever to be set aside where it can be supported by a reasonable Construction The Law doth in many Cases allow of a future Contingent Estate to be Limited where it will not allow a present Remainder to be Limited A man hath an Estate Limited to him his Heirs and Assigns this is a Fee-simple but if he die without Issue living I.S. or in such a short time to I. D. this is good Though it be impossible to limit a Remainder of a Fee upon a Fee yet it s not impossible to limit a Contingent Fee upon a Fee Pell and Brownes Case If a Lease comes to be limited in Tail the Law allows not a present Remainder to be limited thereupon yet it will allow a future Estate arising upon a Contingency only and that to wear out in a short time The Limitation in Wood and Sanders Case is after an express Entail and yet Adjudged good because it was a Remainder upon a Contingency that was to happen during two Lives which was but a short Contingency and the Law might very well expect the hapning of it But our Case is stronger because it is only during one life It was decreed the Plaintiff should enjoy this Barony for the residue of the Term and the Defendants to make him a Conveyance accordingly and to account with the Plaintiff for the Profits received since the death of Duke Thomas and which they or any of them might have received without wilful default The Duke of Norfolk exhibited a Bill of Review in Chancery to which Charles Howard put in a Plea and Demurrer which was Argued before Lord Keeper North and he Over-ruled the said Plea and Demurrer and Reverst the Lord Chancellors Decree But afterwards this Decree was Reverst in Parliament and the first Decree affirmed in behalf of Charles Howard Turner contra Crane 34 Car. 2. fo 668. THat Robert Newell and his Wife Copyhold Mortgage for 220 l. paid by the Plaintiffs Wife Susan then a Widow did Surrender the Copyhold Premisses to the use of the said Susan and her Heirs on condition that the said Robert Newell and his Wife 's paying to the said Susan her Executors and Assigns 230 l. in March next after then the Mortgage to be void and the Mony not being paid the said Susan was admitted to the premisses and afterwards Marryed the Plaintiff and they received the profits of the premisses and afterwards Susan died Intestate no ways indebted leaving Susan her Daughter by the Plaintiff her Heir an Infant and the said Susan the Infant was admitted by the Plaintiff her Guardian Admittance of Guardian as Heir to Susan the Mother who received the profits and died leaving the Defendant Jane Crane her Aunt as Heir and she was admitted and the Plaintiff on Susan the Daughters death took Administration of Susan the Mothers Estate and claims the Mortgaged Lands insisting That though the Defendant Jane was Heir to Susan the Daughter who was Heir to Susan the Mother yet the premisses being a Mortgage belonged to him as Administrator to Susan the Mother This Court would consider of this Case and of Cases of Mortgages in Fee where no Covenant is made for the payment of the Mortgage-Mony to the Executor or Administrator and no debts owing by the Mortgagee whether the Heir or Administrator of the Mortgagee shall have the Lands This Court upon reading Presidents declared The Heir of the Mortgagee in Fee there being no debts owing shall have the Redemption Mony and I not the Administrator That he was fully satisfied that the Plaintiff as Administrator to the said Susan ought not to have the mortgaged premisses from the Defendant Jane Crane the Heir of the Heir of the said Mortgagee but the said Jane ought to enjoy the same and dismist the Plaintiffs Bill Dowse contra Percivall 34 Car. 2. fo 186. THe Plaintiffs Father John Dowse Lessee purchased the Inheritance in Trustees Names and dies Intestate This Lease shall attend the Inheritance took a Lease of the City and afterwards purchased the Inheritance in Trustees Names for him and his Heirs and the said Dowse died Intestate the Defendant his Wife as Administratrix claims this Lease to belong to his personal Estate This Court decreed it to attend the Inheritance Magistr ' c. Vniversit ' Colleg ' in Oxon ' contra Foxcroft 34 Car. 2. fo 522. THe Bill is to Revive a former Decree made against the Defendants Father whereby the said Defendants Father was decreed to pay the Plaintiff 2000 l. and Interest To which the Defendant demurs A Decree and Sequestration against one who dies this shall not be Revived against his Heir or Real Estate though it were for Mony payable on the behalf of a Charity for that the said Defendants Father against whom the said Decree and a Sequestration is had is dead whereupon the Sequestration being granted purely for his Contempt of a Decree which was for a personal duty only
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
Kindid before distribution that share shall go to her or his Executors or Administrators and not to the Survivor next of Kindred to the first Intestate and before any actual distribution made vest an Interest in the respective persons appointed to have distribution of the surplus of his Estate as much as if it had been Bequeathed by Will and that if any one of them dye before distribution tho' within the year yet the part or share of such person so dying ought to go over to the Executors or Administrators of such party so dying and not to the Survivor or next of Kindred to the first Intestate and that the Lady Katherine was at her death well intituled to a share of her Brother Thomas Wentworths Estate as an Interest thereby vested in her notwithstanding she died within a year after the Intestate and before any distribution made and that the Lord Winchelsey as her Administrator is now well intituled therto and decreed a distribution and the Plaintiff the Lord Winchelsey shall have the Lady Katherines share and proportion of the said Thomas Wentworths Estate accordingly and the Plaintiff the Lady Elizabeth shall have a like share thereof with the Defendant Lister and John Wentworth 2 Jac. 2. so 315. The question being Whether the respective shares of the Plaintiff and Defendant Lister the said Lady Katherine and Elizabeth and the Defendant Lister being only of the half Blood to the Intestate and whether the Mony be vested in Lands or the Lands themselves should be accounted part of the personal Estate of the said Thomas Wentworth or not His Lordship ordered a Case to be made as to those two points The Case being viz That the said Thomas Wentworth died an Infant and unmarried leaving such Brother of the whole Blood and such Brother and Sisters of the half Blood as aforesaid who were his next of Kindred in equal degree and that upon his death a real Estate of near 2500 l. per Annum discended to the Defendant John Wentworth his Brother and Heir and that above 3000 l. of the profits of that Estate received in the Intestates life time by Dame Dorothy Norcliff and the said Trustees which belonged to him and his proper Monies were by them during his Non age and without any direction or power in their Trust but of their own Heads laid out in Purchases in Fee and Conveyances in their Names but in Trust for the said Intestates and his Heirs with this express Clause in the said Conveyances viz. in case-he at his full Age would accept the same at the Rate purchased the purchase being made with his Mony and for his advantage This Court as to the said two Points Half Blood to have an equal share with the whole Blood being assisted with Judges declared That the Plaintiff and the Defendant Lister ought each of them to have an equal share with the Defendant John Wentworth of the surplus of the personal Estate of the said Intestate and the distribution thereof ought to be made among them share and share alike and decreed accordingly And as to the other Point declared Trustees lay out the Monies of an Infant in Lands in Fee This shall be accounted part of his personal Estate he dying a Minor That the Monies laid out in the said Purchases ought to be taken and accounted for as part of the said personal Estate and distributed with the rest and decreed a Sale of the said purchased premisses and distribution thereof to be made as aforesaid Dom ' Middleton contra Middleton 1 Jac. 2. fo 793. THat Sir Thomas Middleton upon his Marriage with the Plaintiff Dame Charlotta Middleton Devise setled a great part of his Estate in Com' Flint and other Countries for her Joynture being seised in Fee of Lands in several Countries viz. Flint Denbigh and Merioneth and setled all his Estate on his first and other Sons on her Body in Tail Male and charged the same with several Terms of years for raising Portions for Daughters viz. If one Daughter and no Issue male 8000 l. and out of his personal Estate intending to make an addition to the Portion of the Plaintiff Charlotta his only Child and to increase the Plaintiff Dame Charlotta's Fortune and Joynture made his Will in 1678. and thereby reciting that whereas upon his Marriage-Settlement it was provided That if he should have a Daughter she was to have 6000 l. Portion as his Will was and he gave to his only Daughter Charlotta in case she should have no Son living at his death 10000 l. more as an addition to her Portion to make her up the same 16000 l. and for raising of the said portions and payment of his debts and Legacies he devised all his said Lands except his Lands limited for his Wives Joynture for her life unto Trustees and their Heirs in Trust to raise out of the Rents and profits of the said premisses the several Sums mentioned for his Daughters portion and the sums of Mony thereafter mentioned and Willed That till one half of the said Daughters portion should be raised his Daughter Charlotta to have 100 l. per Annum for the first four years and afterwards 200 l. per Annum till her moiety of her portion should be raised and after payment of the said portions maintenance debts and legacies he devised the said Trustees to stand seised of all the said premisses except before excepted to the use of the Heirs males of his Body with a Remainder to the Defendant Sir Richard Middleton his Brother for life without impeachment of Waste Remainder to his first Son and Heirs males of his Body with other Remainder to the Defendants Thomas Richard and Charles Middleton Remainder to the right Heirs of the said Thomas and he bequeathed to his said Daughter Charlotta the Plaintiff his Diamond-pendants which his Wife wore and bequeathed to his Wife Dame Charlotta after his death one Annuity of 200 l. per Annum for her life to be raised out of the profits of the said premisses and bequeathed the great Silver Candlesticks to go according to his Grandmothers Will to the Heirs of his Family with his Estate as an Heir Loom and bequeathed the use of all his Goods Stock and Housholdstuff to his Wife the Plaintiff Dame Charlotta for so long as she should live at Chirke Castle and from thence he left the same to his eldest Son and Heirs or such as should be Heir male of his Family according to the limitations aforesaid and his further Will was that his said Wife should have such proportion of the Goods Housholdstuff and Stock for the stocking and furnishing of Cardigan-House and Demean being part of her Joynture as should be judged fit by her Trustees that she might be supplied with Goods and Stock requisite for her House and left to whomsoever should be his Heir all his Stable of Horses and made the Plaintiff Dame Charlotta Executrix and died in 1683. leaving the