it had been Executed in 1687 and this done without the Duke's directions or any occasion for the same for if the Duke had before Executed the other and had it in his Custody as is said by the Earl in his Answer what need was there thereof As also That after July 1681. the Earl was advising with my Lord President how he might procure a Settlement from the Duke As also That the Seal of the Duke's Coat of Arms which is upon this Deed was cut by Mr. East for the Earl of Bath and the Earl paid him for that 3 l. 10 s. and also for another small Seal of his own Arms at the same time And the said Mr. East still hath the impression of both Seals which he kept in soft Wax As also How many Witnesses well acquainted with the Hand-writing of the Duke and Sir William Jones and Sir John Coppleston have sworn they do not believe these to be so With other Evidence offered on that Subject of the Fact But more immediately towards the Points of Equity it is to be considered That the Will of 1687. Contents of the Will of 4 July 1687. contains a fair compleat and honourable Settlement of all the Real and Personal Estate some part to the Dutchess for Life some part to his Friends and Relations and Legacies to others of them and particularly to Bevil Greenvill younger Son of the Earl of Bath Lands worth 30000 l. and to Sir Walter Clargis after the death of the Dutchess Lands to the value of 1500 l. per annum or thereabouts It devises a Monument not exceeding 5000 l. to be erected for himself his Father and his Mother and devises Alms-houses to be built and a Charity of 200 l. per annum to Twenty poor Widows pursuant to the intention of his Mother and provides well for the payment of his Debts and leaves the inheritance of the greatest part of his Estate to his Cousin Col. Tho. Monke and his Sons in Tail-Male with Remainder to his Cousin Col. Henry Monke in Ireland and his Sons with other Remainders over and contains his humble Request to His Majesty in memory of his Father and his own Services to create the said Col. Tho. Monke the Appellant Monk's Father Baron Monke of Potheridge and to the Heirs Males of his Body so that the Name of Monke and his Estate may to Posterity remain together And because the Earl by his Answer has made his Case and accordingly the Court have seemed to take it highly reflecting on the Duke's Honour That the Duke at the very time of making the Will of 1687. intended the same should be void and signifie nothing and the Deed stand and that the Duke sent him to Counsel to advise Whether the Deed could be avoided by a Will and he told him It would not Wherewith the Duke seemed well pleased It is therefore to be seen what Steps the Duke made about it and the whole may be put upon that issue Whether the Duke in this Case was guilty of so much Folly Prevarication and Dissimulation towards GOD and the King his Wife and Relations when he had no sort of Benefit or Temptation upon him so to do as not really to intend that to be effectually his Will which cost him so much care and pains and which was so solemnly perfected as will appear The Proofs of the Sincerity of his Intentions Prooss of the Sincerity of the said Duke's Intentions by the last Will of 87. some of them precedent some of them concomitant and others subsequent and the Freedom of his Mind are some of them precedent to the Will some of them concomitant and others of them subsequent Sir Henry Bellasis and Sir Robert Clayton swear the Duke's declaring his Intentions precedent before the Will prepared who he intended to give Col. Monke in Holland the best part of the Estate and how he intended to setle the same And Sir Robert Clayton That the Duke sent him for the Lord Chief-Justice Pollexfen to draw it and in order thereto sent to the Earl of Bath for a former Will of his he had made Which accordingly the Earl of Bath confesseth he gave him in December 1686. The L. Chief-Justice Pollexfen swears He went with Sir Robert Clayton and drew the Will by Directions and Instructions from the Duke 's own Mouth and was often with him about it and that several Alterations were by the Duke's Order made in it and that the Matter was long transacting and setling and that he never saw any man more earnest to have his Will well done and according to his mind and when he had finished the Draught he read it to the Duke and after some amendments again thereupon made by the Duke's directions he was desired by his Grace to get his Clerk to engross it leaving blanks for the Executors Names and the Duke desired him to be one of his Executors to which he consented and that Sir Thomas Stringer was some of the times present with the Duke and him about it That it was published at Sir Robert Clayton's after the Duke had there Executed the Deeds of the Mannors of Dalby and Broughton to Lord Jefferies in the presence of Three Witnesses and of Sir Tho. Stringer who did not subscribe because he was one of the Executors And for the greater solemnity the Duke hath to Three several parts each containing 19 sheets of Paper and to every sheet of each part subscribed his Name and affixed his Seal and caused the Witnesses likewise to subscribe their Names to each sheet and afterwards sealed them under three several Covers and endorsed on all the Covers with his own Hand these words My Will the 4th July 1687. He kept them all in his own custody till his going to Jamaica and then delivered one of them to the Lady Eliz. Pierpoint to be given to the Dutchess of Newcastle another of them he gave to the said Col. Monke whom he had sent for from Holland for that purpose and writ to his present Majesty then Prince to procure him Leave to come and did treat him his Wife and Son with Lodgings and Dyet in Newcastle-House with himself and made him a Present of 3â—0 l. for his Expences in coming over The third part thereof he carried with him to Jamaica where about a fortnight before his Death he re-published the same and kept it in his strong Box amongst things of the greatest value to him and directed the Keys thereof to be given to his Wife in case he relapsed and there dyed Besides all these Solemnities Letters between the L. of Bath the Duke and the Trustees about Monke in confirmation of his Last Will. and the great care and concern of the Duke in his said Will for his Kinsman Col. Monk when afterwards the Duke in Jamaica heard of the death of the said Col. Monke he put himself and Family into Mourning And not only the Duke but also the Earl of Bath Sir Walter
Duke of Albemarle and do it for his support but certainly the Earl's Daughters were not to be Dukes and yet they would by the Deed carry the Estate from the Duke's Daughters Part of the occasion of making the Deed the Earl says by his Pleadings was to make Provision for younger Sons in which his Marriage-Settlement was defective And yet the Lands settled by this Deed of 1681 for such Younger Sons are Redrisse Norton Disney c. which by the Marriage-Settlement were settled on the Duke 's Eldest Son Then the extraordinary nature of the Power of Revocation That it must be done in the presence of six Witnesses and three of them Peers whereby the Duke put himself under great incapacities some times it might be impossible for him to get three Peers as it was in Jamaica And if he had them he was in their power whether they would be Witnesses or no. And thereafter comes the Covenant not to Revoke or alter the Will of 1675 which by that Deed was actually Revoked as aforesaid Nor had the Duke himself any power by the Deed to make Leases and yet all this must be kept from the knowledge of the Duke and so he knew not how exactly to pursue it But the Earl Bath by his Answer The Earl of Bath's Answer about the Ingrossing the Deed and Sir W. Jones to give the greater credit to the Deed says That he knows not who Engrossed it but it was committed all to the Care and Conduct of Sir William Jones and he came to be a Witness to it at Albemarle House and believes Sir William Jones read it to him before it came to be perfected and that the Duke was often with him about it after the time that Sir Tho. Stringer had prepared the Draught but was not to be trusted with the knowledge of the Execution of it Now when the Court observed the strange frame of the Deed and the many Inconsistencies Improprieties and Conitradctions therein They declared That they did not believe that ever Sir William Jones drew the said Deed only was consulted upon the Provisoe which seems not to consist with the Earls Answer which says that the Care and Conduct of the wholewas committed to Sir W. Jones And it now fully appears That Sir William Jones has no hand in the Engrossing thereof but it was done by Thompson at the Earls House as aforesaid And the great Secrecy not only in the obtaining Concealment but concealing thereof appears in that it must not be known to the Duke of Newcastle or any of the Trustees therein nor to Sir Walter Clarges who has an Estate thereby and was the Duke's intimate Friend and near Relation nor to Sir Thomas Stringer who it is said drew the Draught But yet the Earl's Answer confesseth he was not to know of the Execution thereof lest he should tell the Dutchess tho she hath so great an Estate thereby that it was her interest to espouse it and thank the Earl for his great kindness expressed in his Answer by prevailing with the Duke to make her Estate thereby so much better than it was before Then that the Duke with the privity of the Earl of Bath sold Dalby and Broughton to the Lord Jefferys as also Bitchfield before without the least notice either by the Duke or the Earl of any such Deed And made many Leases without fines which he had thereby no power given him to do And also made divers voluntary Conveyances and Grants of Rent Charges of 100 l. per annum to one other voluntary Annuities to his Friends and Servants which would be avoided by the Deed. And all the subsequent acts of the Duke so inconsistent therewith That it is next to impossibility to think that the Duke should have done the same and yet be acquainted with the said Deed. And the Lord Ch. Just Pollexfen and Sir Robert Clayton say that they enquired on the said occasions what settlement the Duke had made and could hear of none but the Marriage-Settlement in 1669. Besides Mr. Courtney says it was under great Injunctions of Secrecy the Earl spoke to him about it And the Earl offers no proof that it was ever seen in the Duke's Custody or delivered to him by the Duke from the time of the first Execution thereof only says the Duke gave it to him in his Bed-chamber and no body present unless some body might be behind the Bed And there is nothing does more clearly prove the Concealment of the Deed from the Duke than his great Care about his last Will in 1687. However Third General Head it is in Equity Revoked though the Power of Revocation be not litterally pursued so as to be a Revocation in strictness at Common Law yet in Equity under these circumstances the said last Will of 1687 ought to be adjudged a Revocation thereof as made pursuant to the intent of that power thereby reserved to the Duke The Witnesses according to the Letter of the Power ought to be six and three of them to be Peers but they need not all be present at the same time nor all to subscribe their names Now though there were only three Witnesses present at first yet there were many more than six to whom the Duke afterwards published it here and in Jamaica So that there wants neither number nor credibility of Witnesses only quality for three of them which 't is hoped will be no objection in this Case when it was not possible when he last published the Will in Jamaica to have it But the Court would not allow this in Jamaica to be a Publication being accidental though it was plain in the proof That the Duke took it then in his hand and told the Witnesses it was his Will and directed the Keys of his strong Box where it was kept to be given to the Dutchess if he dyed And the more accidental it was the more it shewes the Innocency and Sincerity of the Duke's intentions It does appear upon the Face â—â—â—ching the â—â—â—t of Trust and by the express words of the Deed that the Estate limited to the Earl is upon this special Trust and Confidence That he shall sell so much of the Lands as shall fully and honestly pay all the Duke 's Just Debts and Legacies and Funeral Charges as much as the Personal Estate comes short in the Payment thereof by his Executors in his said Will mentioned So that according to this very Deed whatsoever Debts the Duke had contracted or should contract though not in the presence of Six Witnesses and tho' they were to the full value of the said Estate the Earl must by the Letter of the Trust sell the Estate to pay the same and so must he have done to satisfie all the Devises and Legacies which the Duke at his pleasure should make or give by any other Will were it not for the Addition of those Five Words viz. In his said Will mentioned Now when one of
THE CASE OF Elizabeth Dutchess of Albemarle and Christopher Monke Esquire Appellants AGAINST John Earl of Bath and others Respondents THE Appellants Bill in the Chancery sought to be relieved against two Deeds of Lease and Release mentioned The proceedings in Chancery and state of the Case to bear Date the 15 and 16th of July 1681 And that the Estate Real and Personal of Christopher late Duke of Albemarle might go according to his Graces last Will Dated the 4th of July 1687. And to have an Execution of the several Trusts in the said Will. And the said Earl insisted on a Will of the 23d of August 1675 and on the said Deeds as well executed and duly obtained and sought thereby wholly to avoid and render ineffectual the said Last Will tho' the same was most solemnly-made and intended by the said Duke to be the compleat and entire Settlement of all his Estate as herein after is mentioned The Court on the 8th July 1681 First Decree The Will of 1689 confirmed as to the personal Estate and a Decree for Account accordingly after four days Debate Decreed the Dutchess to have her Specifick Legacies and the personal Estate to be accounted to Mr. Monke and otherwise to be applyed according to the Will of 1687. Which Decree for the Personal Estate has never since been questioned And the said Will of 1687 had also before been solemnly sentenced to be a Good Will and that the Duke intended the same so to be by the Court of Delegates But as to the real Estate before any further direction to be given touching the same the Court did think fit and so order That a Tryal at Law should be had touching the said Deeds of Lease and Release in such manner as in the said Order is mentioned and after the said parties were to resort back to the Court for their further direction A Tryal was accordingly had Tryal at Law and the Cause again heard and there happened to to be a Verdict for the Defendants and afterwards the Cause being several days again debated before the Lords Commissioners they took further time to consider thereof But before they made any final Decree that Commission was superseded And the said Cause coming to be further heard before the Lord Keeper several matters were insisted upon whereby in Equity to establish the said Will of 1687 as the intire Settlement of the said Dukes Estate notwithstanding the said Deed. His Lordship on the 22d of December last pronounced a Decree therein Second Error to this effect That as to the Appellants several Claims and Demands to the real Estate of the said Duke under the Will of 1687 against the Deed of 1681 their said Bill should be dismissed and did not Relieve the Appellants as with humble Submission ought to have been done And therefore they have brought this Appeal wherein the General question is Whether the Deeds of 16 July 1681 or the Will of the 4 July 1687 in Equity be construed to be the true Settlement of the Duke's Estate Observ 1st That in this Decretal Order as now entred of all the matters offered and debated in Court after four days were spent herein there is not any one particularreason given for the Judgment of the Court as is usual in Cases of so great consequence But only in general That the Court saw no Cause in Equity to Relieve 2dly That the Lord Keeper and Judges did lay great stress on the Verdict and that there had been no motion for a new Tryal And that so the Deeds must be now supposed to be taken as good Deeds Which 't is humbly hoped will not now be of weight For there was nothing insisted on at the Tryal but the Fact only And so the Verdict is or ought to be of no further Evidence than that the Duke sealed the Deed. And there was no motion for a new Tryal Not because the Appellants were satisfied with that Verdict or had as they conceived any reason so to be But because it was and is conceived That supposing the Duke did Execute such Deeds there are matters in Equity arising out of the Deeds themselves and otherwise relating thereto sufficient to set the same aside or render the same ineffectual First Either as unduly obtained Secondly Or as unduly secreted and concealed from the Duke Or Thirdly as in Equity revoked by the last Will of 1687. Or Fourthly as a Trust resulting for the Duke whereby this his last Will of 1687 may have its full effect and operation But before these Points are severally considered it is necessary to see what the Will and Deeds are and under what circumstances they stand And were the Fact the direct question at present it would be remembred and is proved Some of the Evidence as to the Fact of the Deed. That when the Deeds were first produced by the Earl they were read by his Lordship 's own Counsel to be dated the Lease the 15 July 1681 and the Release the 16 July 1682 at which great notice was taken and with much difficulty Mr. Bowes and Mr. Buttler got the Earle's leave to look on the same and observed the Lease to be 1682 as the same had been read and with those two Witnesses concur the Lord Cheney Mr. Cheney and Dr. Barwick and thereof Mr. Bowes and by Lord Cheney 's direction Mr. Cheney then entred several Memorandums in writing And on sight of the Deed of Release there appeares now a plain Razure both in the Year of the King and in the Year of our Lord but in no other word throughout the whole Deed for ought appeared Now the difference was very material not only because if the Release were 1682 as these five Gentlemen say it was it would not only be void at Law the Lease being determined but Sir William Jones whose name is Endorsed as a Witness was dead in July 1682. As also That it now appears to have been Engrossed at the Earls House at St. James 's and by his direction by one Thompson who hath been the Earls Scrivener for these thirty Years Whereas the Earl by his Answer says he knows not who Engrossed it But it being of great moment and secrecy was all committed to the Care and Conduct of Sir William Jones And also that Thompson on his first Examination swore That in 1687 he Ingrossed for the said Earl a Deed of the same purport as this whereas this Deed is dated 1681 and remembers not that ever he Engrossed any other But when he is afterwards produced by the Earl then there is shewn to him a Parchment prepared to be but never Executed by the Dake And this he says is what he Engrossed for the Earl in 1687 as is said prepared in 1687 both as to the Power of Revocation and every thing else is the same in words with the Deed of 1681 saving only the last Covenant not to revoke the Will of 1675 And Thompson says he thought